Federal Register Vol. 81, No.211,

Federal Register Volume 81, Issue 211 (November 1, 2016)

Page Range75671-76270
FR Document

81_FR_211
Current View
Page and SubjectPDF
81 FR 76269 - National Adoption Month, 2016PDF
81 FR 76267 - Military Family Month, 2016PDF
81 FR 75874 - Sunshine Act MeetingPDF
81 FR 75811 - Sunshine Act MeetingsPDF
81 FR 75842 - Government in the Sunshine Act Meeting NoticePDF
81 FR 75858 - Sunshine Act MeetingPDF
81 FR 75838 - Freedom of Information Act; Notice of LawsuitPDF
81 FR 75867 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Related to Compliance With Section 871(m) of the Internal Revenue CodePDF
81 FR 75781 - Additions to List of Section 241.4 Categorical Non-Waste Fuels: Other Treated Railroad TiesPDF
81 FR 75812 - Agency Information Collection Activities; Comment Request; Formula Grant EASIE (Electronic Application System for Indian Education)PDF
81 FR 75861 - New Postal ProductsPDF
81 FR 75811 - Threat Reduction Advisory Committee; Notice of Closed Federal Advisory Committee MeetingPDF
81 FR 75764 - Approval and Promulgation of Implementation Plans; State of California; Coachella Valley; Attainment Plan for 1997 8-Hour Ozone StandardsPDF
81 FR 75816 - Final National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit for Point Source Discharges From the Application of Pesticides; ReissuancePDF
81 FR 75822 - Notification of a Public Meeting of the Chartered Science Advisory BoardPDF
81 FR 75820 - Notice of Approval of the Primacy Revision Application for the Public Water Supply Supervision Program from the State of MissouriPDF
81 FR 75821 - Board of Scientific Counselors (BOSC) Chemical Safety for Sustainability Subcommittee Meeting-November 2016PDF
81 FR 75814 - Integrated System Power RatesPDF
81 FR 75859 - Advisory Committee On Reactor Safeguards (ACRS); Meeting Of The ACRS Subcommittee On Metallurgy & Reactor Fuels; Notice of MeetingPDF
81 FR 75808 - Initiation of Five-Year (“Sunset”) ReviewsPDF
81 FR 75806 - Ferrovanadium From the Republic of Korea: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination and Extension of Provisional MeasuresPDF
81 FR 75860 - Susquehanna Nuclear, LLC; Establishment of Atomic Safety and Licensing BoardPDF
81 FR 75823 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 75860 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Plant License Renewal; Notice of MeetingPDF
81 FR 75905 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ARC TIME; Invitation for Public CommentsPDF
81 FR 75859 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Fukushima; Notice of MeetingPDF
81 FR 75898 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Aviation InsurancePDF
81 FR 75906 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SPELLBOUND; Invitation for Public CommentsPDF
81 FR 75899 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Anti-Drug Program for Personnel Engaged in Specific Aviation ActivitiesPDF
81 FR 75899 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification of Aircraft and Airmen for the Operation of Light-Sport AircraftPDF
81 FR 75904 - Agency Requests for Renewal of a Previously Approved Information Collection(s): Approval of Underwriters of Marine Hull InsurancePDF
81 FR 75905 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MANNA; Invitation for Public CommentsPDF
81 FR 75906 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel Gotta Love It; Invitation for Public CommentsPDF
81 FR 75740 - Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 75823 - Appraisal Subcommittee Notice of MeetingPDF
81 FR 75840 - Deepwater Horizon Oil Spill; Louisiana Trustee Implementation Group Draft Restoration Plan #1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and BirdsPDF
81 FR 75921 - Additional Designations, Foreign Narcotics Kingpin Designation ActPDF
81 FR 75858 - Extension of Comment Period on the Environmental Impact Statement for the Proposed Changes to Green Bank Observatory OperationsPDF
81 FR 75694 - Safety Zone; Delaware River, Philadelphia, PAPDF
81 FR 75742 - Energy Conservation Standards for Commercial and Industrial Fans and Blowers: Availability of Provisional Analysis ToolsPDF
81 FR 75900 - Application From the State of Florida to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the StatePDF
81 FR 75671 - Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010; CorrectionsPDF
81 FR 75856 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Notice of Medical Necessity Criteria Under the Mental Health Parity and Addiction Equity Act of 2008PDF
81 FR 75857 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Ready To Work Partnership Grants Evaluation 18-Month Follow-up SurveyPDF
81 FR 75824 - Submission for OMB Review; Comment RequestPDF
81 FR 75762 - Airworthiness Directives; Rolls-Royce plc Turbofan EnginesPDF
81 FR 75727 - Hours of Service of Drivers: Specialized Carriers & Rigging Association (SC&RA); Application for Exemption; Final DispositionPDF
81 FR 75813 - Application To Export Electric Energy; Castleton Commodities Merchant Trading L.P.PDF
81 FR 75836 - Section 184 Indian Housing Loan Guarantee Program Increase to Annual PremiumPDF
81 FR 75837 - Endangered and Threatened Wildlife and Plants; Technical/Agency Draft Recovery Plan for the Chucky MadtomPDF
81 FR 75683 - Requirements for the Distribution and Control of Donated Foods and the Emergency Food Assistance Program: Implementation of the Agricultural Act of 2014PDF
81 FR 75920 - Advisory Committee on Automation in TransportationPDF
81 FR 75809 - Availability of Seats for National Marine Sanctuary Advisory CouncilsPDF
81 FR 75757 - Airworthiness Directives; Dassault Aviation AirplanesPDF
81 FR 75759 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
81 FR 75803 - Pacific Island Fisheries; 2016-17 Annual Catch Limit and Accountability Measures; Main Hawaiian Islands Deep 7 BottomfishPDF
81 FR 75824 - Agency Information Collection Activities; Proposed Collection; Comment Request; Patent Term Restoration, Due Diligence Petitions, Filing, Format, and Content of PetitionsPDF
81 FR 75831 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment RequestPDF
81 FR 75731 - Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specification of Management Measures for Atlantic Herring for the 2016-2018 Fishing YearsPDF
81 FR 75815 - Proposed Information Collection Request; Comment Request; Implementation of the Ambient Air Protocol Gas Verification ProgramPDF
81 FR 75828 - Medical Device User Fee Amendments; Public Meeting; Request for Comments; Extension of Comment PeriodPDF
81 FR 75902 - Notice of Proposed Buy America Waiver for Radio ConsolesPDF
81 FR 75903 - Notice of Proposed Buy America Waiver for Ultrastraight RailPDF
81 FR 75692 - What You Need To Know About the Food and Drug Administration Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food; Small Entity Compliance Guide; AvailabilityPDF
81 FR 75693 - What You Need To Know About the Food and Drug Administration Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals; Small Entity Compliance Guide; AvailabilityPDF
81 FR 75833 - Accreditation and Approval of Intertek USA, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 75834 - Accreditation and Approval of Inspectorate America Corporation, as a Commercial Gauger and LaboratoryPDF
81 FR 75921 - Sanctions Action Pursuant to Executive Order 13224PDF
81 FR 75689 - Listing of Color Additives Exempt From Certification; Titanium Dioxide and Listing of Color Additives Subject to Certification; [Phthalocyaninato (2-)] CopperPDF
81 FR 75805 - Submission for OMB Review; Comment RequestPDF
81 FR 75842 - Cancellation of November 9, 2016, Meeting of the Wekiva River System Advisory Management CommitteePDF
81 FR 75841 - Notice of December 12, 2016, Meeting for Cape Cod National Seashore Advisory CommissionPDF
81 FR 75874 - Hartford Mutual Funds Inc., et al.; Notice of ApplicationPDF
81 FR 75883 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; National Securities Clearing Corporation; Order Granting Approval of Proposed Rule Changes To Describe the Backtesting Charge and the Holiday Charge That May Be Imposed on MembersPDF
81 FR 75865 - Self-Regulatory Organizations; The Depository Trust Company; Fixed Income Clearing Corporation; National Securities Clearing Corporation; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Changes Relating to Clearing Agency Investment PolicyPDF
81 FR 75862 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Amend Rule 4702 To Adopt a New Retail Post-Only OrderPDF
81 FR 75875 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Exchange Rule 11.23, Auctions, To Enhance the Reopening Auction Process Following a Trading Halt Declared Pursuant to the Plan To Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMSPDF
81 FR 75865 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to Premise Capital Frontier Advantage Diversified Tactical ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 101(d) and 102(e) of Regulation MPDF
81 FR 75879 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Enhance the Reopening Auction Process Following a Trading Halt Declared Pursuant to the Plan To Address Extraordinary Market VolatilityPDF
81 FR 75885 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule To Adopt Fees and Credits for Transactions Involving Complex OrdersPDF
81 FR 75894 - Data Collection Available for Public CommentsPDF
81 FR 75895 - Data Collection Available for Public CommentsPDF
81 FR 75896 - Data Collection Available for Public CommentsPDF
81 FR 75896 - Florida Disaster Number FL-00119PDF
81 FR 75896 - Florida Disaster # FL-00120PDF
81 FR 75907 - Denial of Motor Vehicle Defect Petition, DP12-004PDF
81 FR 75895 - Washington Disaster # WA-00067 Declaration of Economic InjuryPDF
81 FR 75894 - California Disaster # CA-00252PDF
81 FR 75897 - Wisconsin Disaster # WI-00056PDF
81 FR 75894 - Georgia Disaster # GA-00082PDF
81 FR 75830 - Agency Information Collection Activities: Proposed Collection: Public Comment Request; Maternal, Infant, and Early Childhood Home Visiting Program Fiscal Year (FY) 2015, FY 2016, FY 2017 Non-Competing Continuation Progress Report for Formula GrantPDF
81 FR 75828 - Agency Information Collection Activities: Proposed Collection: Public Comment Request; Nurse Anesthetist Traineeship Program Specific Data FormsPDF
81 FR 75861 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 75862 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 75684 - Airworthiness Directives; Engine Alliance Turbofan EnginesPDF
81 FR 75811 - Proposed Information Collection; Comment Request; Marine Mammal Health and Stranding Response Program, Level A Stranding and Rehabilitation Disposition Data SheetPDF
81 FR 75835 - DHS Data Privacy and Integrity Advisory CommitteePDF
81 FR 75861 - Product Change-Priority Mail Express Negotiated Service AgreementPDF
81 FR 75805 - National Advisory Committee on Meat and Poultry InspectionPDF
81 FR 75897 - Environmental Impact Statement for Shawnee Fossil Plant Coal Combustion Residual ManagementPDF
81 FR 75922 - Exchange of CoinPDF
81 FR 75902 - Notice of Meeting of the Transit Advisory Committee for Safety (TRACS)PDF
81 FR 75845 - Certain Welded Stainless Steel Pipe From Korea and Taiwan; Institution of Five-Year ReviewsPDF
81 FR 75851 - Helical Spring Lock Washers From China and Taiwan; Institution of Five-Year ReviewsPDF
81 FR 75848 - Gray Portland Cement and Cement Clinker From Japan; Institution of a Five-Year ReviewPDF
81 FR 75842 - Solid Urea From Russia and Ukraine; Institution of Five-Year ReviewsPDF
81 FR 75854 - Multilayered Wood Flooring From China Institution of Five-Year ReviewsPDF
81 FR 75832 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingsPDF
81 FR 75832 - Government-Owned Invention; Availability for LicensingPDF
81 FR 75832 - National Cancer Institute; Amended Notice of MeetingPDF
81 FR 75826 - Agency Information Collection Activities: Proposed Collection; Comment Request; Institutional Review BoardsPDF
81 FR 75695 - Designation of Agent To Receive Notification of Claimed InfringementPDF
81 FR 75729 - Administrative Rules; Official Seal; Rules Implementing the Government in the Sunshine ActPDF
81 FR 75687 - Airworthiness Directives; Turbomeca S.A. Turboshaft EnginesPDF
81 FR 75686 - Airworthiness Directives; Pratt & Whitney Division Turbofan EnginesPDF
81 FR 75780 - Approval and Promulgation of State Plans for Designated Facilities and Pollutants; New York, New Jersey and Commonwealth of Puerto Rico; Other Solid Wsate Incineration Units (OSWIs)PDF
81 FR 75708 - Approval and Promulgation of State Plans for Designated Facilities and Pollutants; State of New York, State of New Jersey and Commonwealth of Puerto Rico; Other Solid Waste Incineration UnitsPDF
81 FR 75801 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Headwater Chub and a Distinct Population Segment of the Roundtail ChubPDF
81 FR 75710 - Wireless Emergency Alerts; Amendments to Rules Regarding the Emergency Alert SystemPDF
81 FR 75753 - Removal of Transferred OTS Regulations Regarding Minimum Security Procedures Amendments to FDIC RegulationsPDF
81 FR 75761 - Airworthiness Directives; CFM International S.A. Turbofan EnginesPDF
81 FR 76092 - Change in Rates and Classes of General Applicability for Competitive ProductsPDF
81 FR 76220 - 2014 Quadrennial Regulatory ReviewPDF
81 FR 75926 - Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant ProgramPDF

Issue

81 211 Tuesday, November 1, 2016 Contents Agriculture Agriculture Department See

Food and Nutrition Service

See

Food Safety and Inspection Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75805 2016-26309
Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Community Services Block Grant Annual Report, 75824 2016-26336 Coast Guard Coast Guard RULES Safety Zones: Delaware River, Philadelphia, PA, 75694-75695 2016-26342 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission NOTICES Meetings; Sunshine Act, 75811 2016-26502 Copyright Office Copyright Office, Library of Congress RULES Designation of Agent to Receive Notification of Claimed Infringement, 75695-75708 2016-26257 Defense Department Defense Department NOTICES Meetings: Threat Reduction Advisory Committee, 75811-75812 2016-26378 Education Department Education Department RULES Student Assistance General Provisions: Federal Perkins Loan Program, Federal Family Education Loan Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant Program, 75926-76089 2016-25448 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Formula Grant Electronic Application System for Indian Education, 75812-75813 2016-26380 Energy Department Energy Department See

Southwestern Power Administration

PROPOSED RULES Energy Conservation Programs: Standards for Commercial and Industrial Fans and Blowers, 75742-75753 2016-26341 NOTICES Applications: Castleton Commodities Merchant Trading, LP, 75813-75814 2016-26332
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: New York, New Jersey, Puerto Rico; Designated Facilities and Pollutants; Other Solid Waste Incineration Units, 75708-75710 2016-26171 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Coachella Valley; Attainment Plan for 1997 8-Hour Ozone Standards, 75764-75780 2016-26376 New York, New Jersey, Puerto Rico; Designated Facilities and Pollutants; Other Solid Waste Incineration Units, 75780-75781 2016-26172 Categorical Non-Waste Fuels: Other Treated Railroad Ties, 75781-75801 2016-26381 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Implementation of Ambient Air Protocol Gas Verification Program, 75815-75816 2016-26319 Meetings: Board of Scientific Counselors Chemical Safety for Sustainability Subcommittee, 75821-75822 2016-26371 Chartered Science Advisory Board, 75822-75823 2016-26373 Permits: National Pollutant Discharge Elimination System Pesticide General Permit for Point Source Discharges from Application of Pesticides, 75816-75820 2016-26375 Primacy Applications: Missouri; Public Water Supply Supervision Program, 75820-75821 2016-26372 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Engine Alliance Turbofan Engines, 75684-75686 2016-26280 Pratt and Whitney Division Turbofan Engines, 75686-75687 2016-26183 Turbomeca S.A. Turboshaft Engines, 75687-75689 2016-26184 PROPOSED RULES Airworthiness Directives: CFM International S.A. Turbofan Engines, 75761-75762 2016-26010 Dassault Aviation Airplanes, 75757-75758 2016-26325 Fokker Services B.V. Airplanes, 75759-75761 2016-26324 Rolls-Royce plc Turbofan Engines, 75762-75764 2016-26334 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Anti-Drug Program for Personnel Engaged in Specific Aviation Activities, 75899-75900 2016-26355 Aviation Insurance, 75898-75899 2016-26357 Certification of Aircraft and Airmen for the Operation of Light-Sport Aircraft, 75899 2016-26354 Federal Communications Federal Communications Commission RULES 2014 Quadrennial Regulatory Review, 76220-76263 2016-25567 Emergency Alert System: Wireless Emergency Alerts, 75710-75727 2016-26120 Federal Deposit Federal Deposit Insurance Corporation PROPOSED RULES Removal of Transferred OTS Regulations Regarding Minimum Security Procedures Amendment, 75753-75757 2016-26062 Federal Financial Federal Financial Institutions Examination Council NOTICES Meetings: Appraisal Subcommittee, 75823 2016-26346 Federal Highway Federal Highway Administration NOTICES Surface Transportation Project Delivery Program: Application, State of Florida, 75900-75901 2016-26340 Federal Motor Federal Motor Carrier Safety Administration RULES Hours of Service of Drivers; Exemption Applications: Specialized Carriers and Rigging Association; Final Disposition, 75727-75729 2016-26333 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 75823-75824 2016-26361 Federal Transit Federal Transit Administration NOTICES Buy American Waivers: Radio Consoles, 75902-75903 2016-26317 Ultrastraight Rail, 75903-75904 2016-26316 Meetings: Transit Advisory Committee for Safety, 75902 2016-26269 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Status for Headwater Chub and Distinct Population Segment of Roundtail Chub, 75801-75802 2016-26125 NOTICES Endangered and Threatened Species: Technical/Agency Draft Recovery Plan for Chucky Madtom, 75837-75838 2016-26330 Requests for Information: Freedom of Information Act; Lawsuit, 75838-75840 2016-26412 Food and Drug Food and Drug Administration RULES Color Additives: Titanium Dioxide; Copper, 75689-75692 2016-26310 Guidance: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals; Small Entity Compliance Guide Availability, 75693-75694 2016-26314 Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food; Small Entity Compliance Guide, 75692-75693 2016-26315 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Institutional Review Boards, 75826-75827 2016-26258 Patent Term Restoration, Due Diligence Petitions, Filing, Format, and Content of Petitions, 75824-75826 2016-26322 Meetings: Medical Device User Fee Amendments, 75828 2016-26318 Food and Nutrition Food and Nutrition Service RULES Child and Adult Care Programs: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act; Corrections, 75671-75683 2016-26339 Emergency Food Assistance Program: Requirements for Distribution and Control of Donated Foods; Correction, 75683-75684 2016-26329 Food Safety Food Safety and Inspection Service NOTICES National Advisory Committee on Meat and Poultry Inspection, 75805-75806 2016-26273 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 75920-75922 2016-26311 2016-26344 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75831 2016-26321
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75830-75831 2016-26284 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nurse Anesthetist Traineeship Program Specific Data Forms, 75828-75829 2016-26283 Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

NOTICES Meetings: DHS Data Privacy and Integrity Advisory Committee, 75835-75836 2016-26275
Housing Housing and Urban Development Department NOTICES Indian Housing Loan Guarantee Program: Increase to Annual Premium, 75836-75837 2016-26331 Interior Interior Department See

Fish and Wildlife Service

See

National Park Service

NOTICES Environmental Impact Statements; Availability, etc.: Deepwater Horizon Oil Spill; Louisiana Trustee Implementation Group Draft Restoration Plan, 75840-75841 2016-26345
International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Initiation of Five-Year (Sunset) Reviews, 75808-75809 2016-26364 Determinations of Sales at Less than Fair Value: Ferrovanadium from Republic of Korea, 75806-75808 2016-26363 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Welded Stainless Steel Pipe from Korea and Taiwan; Five-Year Reviews, 75845-75848 2016-26267 Gray Portland Cement and Cement Clinker from Japan; Five-Year Review, 75848-75851 2016-26265 Multilayered Wood Flooring from China; Institution of Five-Year Reviews, 75854-75856 2016-26263 Investigations; Determinations, Modifications, and Rulings, etc.: Helical Spring Lock Washers from China and Taiwan, 75851-75854 2016-26266 Solid Urea from Russia and Ukraine; Institution of Five-Year Reviews, 75842-75845 2016-26264 Meetings; Sunshine Act, 75842 2016-26465 Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Medical Necessity Criteria under Mental Health Parity and Addiction Equity Act of 2008, 75856-75857 2016-26338 Ready to Work Partnership Grants Evaluation 18-Month Follow-up Survey, 75857-75858 2016-26337 Library Library of Congress See

Copyright Office, Library of Congress

Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Approval of Underwriters of Marine Hull Insurance; Renewal, 75904-75905 2016-26353 Requests for Administrative Waivers of Coastwise Trade Laws: Vessel ARC TIME, 75905 2016-26359 Vessel GOTTA LOVE IT, 75906 2016-26351 Vessel MANNA, 75905-75906 2016-26352 Vessel SPELLBOUND, 75906-75907 2016-26356 National Highway National Highway Traffic Safety Administration NOTICES Motor Vehicle Defect Petitions; Denials, 75907-75919 2016-26289 National Institute National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 75832 2016-26260 Meetings: Eunice Kennedy Shriver National Institute of Child Health and Human Development, 75832-75833 2016-26261 National Cancer Institute, 75832 2016-26259 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Exchange of Flatfish in Bering Sea and Aleutian Islands Management Area, 75740-75741 2016-26350 Fisheries of the Northeastern United States: Atlantic Herring Fishery; Specification of Management Measures for 2016-2018 Fishing Years, 75731-75740 2016-26320 PROPOSED RULES Pacific Island Fisheries: Main Hawaiian Islands Deep 7 Bottomfish; Annual Catch Limit and Accountability Measures, 75803-75804 2016-26323 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Marine Mammal Health and Stranding Response Program, Level A Stranding and Rehabilitation Disposition Data Sheet, 75811 2016-26279 Availability of Seats for National Marine Sanctuary Advisory Councils, 75809-75810 2016-26326 National Park National Park Service NOTICES Meetings: Cape Cod National Seashore Advisory Commission, 75841-75842 2016-26307 Wekiva River System Advisory Management Committee; Cancellation, 75842 2016-26308 National Science National Science Foundation NOTICES Environmental Impact Statements; Availability, etc.: Green Bank Observatory Operations, Green Bank, WV, 75858 2016-26343 National Transportation National Transportation Safety Board RULES Administrative Rules; Official Seal; Rules Implementing Government in Sunshine Act, 75729-75731 2016-26232 NOTICES Meetings; Sunshine Act, 75858-75859 2016-26413 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Atomic Safety and Licensing Boards: Susquehanna Nuclear, LLC, 75860 2016-26362 Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Fukushima, 75859 2016-26358 Advisory Committee on Reactor Safeguards Subcommittee on Metallurgy and Reactor Fuels, 75859-75860 2016-26365 Advisory Committee on Reactor Safeguards Subcommittee on Plant License Renewal, 75860 2016-26360 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 75861 2016-26379 Postal Service Postal Service NOTICES Changes in Rates and Classes of General Applicability for Competitive Products, 76092-76218 2016-25955 Product Changes: Priority Mail Express Negotiated Service Agreement, 75861-75862 2016-26274 Priority Mail Negotiated Service Agreement, 75861-75862 2016-26282 2016-26276 2016-26277 2016-26278 2016-26281 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Military Family Month (Proc. 9529), 76265-76268 2016-26525 National Adoption Month (Proc. 9530), 76269-76270 2016-26526 Securities Securities and Exchange Commission NOTICES Applications: Hartford Mutual Funds Inc., et al., 75874-75875 2016-26305 Meetings; Sunshine Act, 75874 2016-26506 Orders: Granting Limited Exemptions to Premise Capital Frontier Advantage Diversified Tactical ETF, 75865-75867 2016-26299 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 75875-75879 2016-26300 Depository Trust Co.; Fixed Income Clearing Corp.; National Securities Clearing Corp., 75865 2016-26302 Fixed Income Clearing Corp.; National Securities Clearing Corp., 75883-75885 2016-26303 Miami International Securities Exchange, LLC, 75885-75894 2016-26297 NASDAQ Stock Market, LLC, 75862-75865, 75879-75883 2016-26298 2016-26301 Options Clearing Corp., 75867-75874 2016-26382 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75894-75897 2016-26293 2016-26294 2016-26295 2016-26296 Disaster Declarations: California; Amendment 1, 75894-75895 2016-26287 Florida, 75896 2016-26291 Florida; Amendment 2, 75896 2016-26292 Georgia, 75894 2016-26285 Washington, 75895 2016-26288 Wisconsin, 75897 2016-26286 Southwestern Southwestern Power Administration NOTICES Integrated System Power Rates, 75814-75815 2016-26370 Tennessee Tennessee Valley Authority NOTICES Environmental Impact Statements; Availability, etc.: Shawnee Fossil Plant Coal Combustion Residual Management, 75897-75898 2016-26272 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

NOTICES Nominations for Membership: Advisory Committee on Automation in Transportation, 75919-75920 2016-26328
Treasury Treasury Department See

Foreign Assets Control Office

See

United States Mint

Customs U.S. Customs and Border Protection NOTICES Commercial Gaugers and Laboratories; Accreditations and Approvals: Inspectorate America Corp., 75834 2016-26312 Intertek USA, Inc., 75833-75834 2016-26313 U.S. Mint United States Mint NOTICES Exchange of Coin, 75922 2016-26270 Separate Parts In This Issue Part II Education Department, 75926-76089 2016-25448 Part III Postal Service, 76092-76218 2016-25955 Part IV Federal Communications Commission, 76220-76263 2016-25567 Part V Presidential Documents, 76265-76270 2016-26525 2016-26526 Reader Aids

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

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81 211 Tuesday, November 1, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 210, 220, and 226 [FNS-2011-0029] RIN 0584-AE18 Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010; Corrections AGENCY:

Food and Nutrition Service, USDA.

ACTION:

Correcting amendments.

SUMMARY:

This document contains technical corrections to the final rule published in the Federal Register on April 25, 2016, “Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010.”

DATES:

This document is effective November 1, 2016. Compliance with the provisions of this rule must begin October 1, 2017 except as otherwise noted in the final rule.

FOR FURTHER INFORMATION CONTACT:

Andrea Farmer or Laura Carroll, Policy and Program Development Division, Child Nutrition Programs, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1206, Alexandria, Virginia 22302-1594; 703-305-2590.

SUPPLEMENTARY INFORMATION:

The Food and Nutrition Service (FNS) published a final rule in the Federal Register, 81 FR 24348, on April 25, 2016, to update the meal pattern requirements for the Child and Adult Care Food Program and extended several of the changes to the National School Lunch Program, School Breakfast Program, and Special Milk Program. The final rule included typographical errors in 7 CFR 210.10(a)(1)(i), 220.8(a)(1), 220.8(o)(1), and 220.8(p)(1), the incorrect information for the serving size of yogurt in the infant meal pattern that appears in 7 CFR 210.10(q)(2), 220.8(p)(2), 226.20(b)(4)(ii)(A) and 226.20(b)(5), and a technical error for offer versus serve in 7 CFR 226.20(o). In addition, FNS is correcting the breakfast cereal sugar limit. The final rule provided a sugar limit of no more than 6 grams of sugar per dry ounce (no more than 21 grams sucrose and other sugars per 100 grams of dry cereal). The intent of that limit was to be consistent with the Special Supplemental Nutrition Program for Woman, Infants, and Children (WIC). However, due to rounding, the breakfast cereal sugar limit in the final rule that appears in 7 CFR 210.10(o)(3)(ii), 210.10(o)(4)(ii), 210.10(p)(2), 220.8(o)(2), 226.20(a)(4)(ii), 226.20(b)(5), and 226.20(c)(1) through 226.20(c)(3) is inconsistent with WIC's breakfast cereal sugar limit of no more 21.2 grams of sucrose and other sugars per 100 grams of dry cereal. This correction amends the breakfast cereal sugar limit to align with WIC's breakfast cereal sugar limit and corrects the other errors described above. Note that the Special Milk Program regulations at 7 CFR part 215 were amended in the final rule, but no technical corrections are necessary in this amendment.

List of Subjects 7 CFR Part 210

Children, Commodity School Program, Food assistance programs, Grants programs—social programs, National School Lunch Program, Nutrition, Reporting and recordkeeping requirements, Surplus agricultural commodities.

7 CFR Part 220

Grant programs—education, Grant programs—health, Infants and children, Nutrition, Reporting and recordkeeping requirements, School breakfast and lunch programs.

7 CFR Part 226

Accounting, Aged, American Indians, Day care, Food assistance programs, Grant programs, Grant programs— health, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities.

Accordingly, 7 CFR parts 210, 220, and 226 are corrected by making the following correcting amendments:

PART 210—NATIONAL SCHOOL LUNCH PROGRAM 1. The authority citation for part 210 continues to read as follows: Authority:

42 U.S.C. 1751-1760, 1779.

2. In § 210.10: a. Revise the fourth sentence in paragraph (a)(1)(i); b. Revise the table in paragraph (o)(3)(ii); c. Revise the table in paragraph (o)(4)(ii); d. Revise the table in paragraph (p)(2); and e. Revise the table in paragraph (q)(2).

The revisions read as follows:

§ 210.10 Meal requirements for lunches and requirements for afterschool snacks.

(a) * * *

(1) * * *

(i) * * * Schools offering lunches to children ages 1 through 4 and infants must meet the meal pattern requirements in paragraphs (p) and (q), as applicable, of this section. * * *

(o) * * *

(3) * * *

(ii) * * *

ER01NO16.140

(4) * * *

(ii) * * *

ER01NO16.141

(p) * * *

(2) * * *

(q) * * *

(2) * * *

ER01NO16.142 ER01NO16.143
PART 220—SCHOOL BREAKFAST PROGRAM 3. The authority citation for part 220 continues to read as follows: Authority:

42 U.S.C. 1773, 1779, unless otherwise noted.

4. In § 220.8: a. Revise the fourth sentence in paragraph (a)(1). b. Revise paragraph (o)(1); c. Revise the table in paragraph (o)(2); d. Revise paragraph (p)(1); and e. Revise the table in paragraph (p)(2).

The revisions read as follows:

§ 220.8 Meal requirements for breakfasts.

(a) * * *

(1) * * * Schools offering breakfasts to children ages 1 to 4 and infants must meet the meal pattern requirements in paragraphs (o) and (p), as applicable, of this section. * * *

(o) * * *

(1) Breakfasts served to preschoolers. Schools serving breakfast to children ages 1 through 4 under the School Breakfast Program must serve the meal components and quantities required in the breakfast meal pattern established for the Child and Adult Care Food Program under § 226.20(a), (c)(1), and (d) of this chapter. In addition, schools serving breakfasts to this age group must comply with the requirements set forth in paragraphs (a), (c)(3), (g), (k), (l), and (m) of this section as applicable.

(2) * * *

ER01NO16.144

(p) * * *

(1) Breakfasts served to infants. Schools serving breakfasts to infants ages birth through 11 months under the School Breakfast Program must serve the food components and quantities required in the breakfast meal pattern established for the Child and Adult Care Food Program, under § 226.20(a), (b), and (d) of this chapter. In addition, schools serving breakfasts to infants must comply with the requirements set forth in paragraphs (a), (c)(3), (g), (k), (l), and (m) of this section as applicable.

(2) * * *

ER01NO16.145
PART 226—CHILD AND ADULT CARE FOOD PROGRAM 5. The authority citation for part 226 continues to read as follows: Authority:

Secs. 9, 11, 14, 16, and 17, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).

6. In § 226.20: a. Revise the second sentence in paragraph (a)(4)(ii); b. Amend the first sentence in paragraph (b)(4)(ii)(A) by removing the words “0 to 8 ounces” and adding in their place the words “0 to 4 ounces”; c. Revise the table in paragraph (b)(5); d. Revise the table in paragraph (c)(1); e. Revise the table in paragraph (c)(2); f. Revise the table in paragraph (c)(3); and g. Revise paragraph (o).

The revisions read as follows:

§ 226.20 Requirements for meals.

(a) * * *

(4) * * *

(ii) * * * Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other sugars per 100 grams of dry cereal).

(b) * * *

(5) * * *

ER01NO16.146

(c) * * *

(1) * * *

ER01NO16.147

(2) * * *

ER01NO16.148 ER01NO16.149

(3) * * *

ER01NO16.150 ER01NO16.151

(o) Offer versus serve. (1) Each adult day care center and at-risk afterschool program must offer its participants all of the required food servings as set forth in paragraphs (c)(1) and (c)(2) of this section. However, at the discretion of the adult day care center or at-risk afterschool program, participants may be permitted to decline:

(i) For adults. (A) One of the four food items required at breakfast (one serving of fluid milk; one serving of vegetable or fruit, or a combination of both; and two servings of grains, or meat or meat alternates);

(B) Two of the five food components required at lunch (fluid milk; vegetables; fruit; grain; and meat or meat alternate); and

(C) One of the four food components required at supper (vegetables; fruit; grain; and meat or meat alternate).

(ii) For children. Two of the five food components required at supper (fluid milk; vegetables; fruit; grain; and meat or meat alternate).

(2) In pricing programs, the price of the reimbursable meal must not be affected if a participant declines a food item.

Dated: October 24, 2016. Telora T. Dean, Acting Administrator, Food and Nutrition Service.
[FR Doc. 2016-26339 Filed 10-31-16; 8:45 am] BILLING CODE 3410-30-P
DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 250 [FNS-2014-0040] RIN 0584-AE29 Requirements for the Distribution and Control of Donated Foods and the Emergency Food Assistance Program: Implementation of the Agricultural Act of 2014 AGENCY:

Food and Nutrition Service (FNS), USDA.

ACTION:

Correcting amendments.

SUMMARY:

This document contains corrections to the final rule published in the Federal Register on April 19, 2016, “Requirements for the Distribution and Control of Donated Foods—The Emergency Food Assistance Program: Implementation of the Agricultural Act of 2014.”

DATES:

This document is effective November 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Carolyn Smalkowski, Program Analyst, Policy Branch, Food Distribution Division, Food and Nutrition Service, 3101 Park Center Drive, Room 500, Alexandria, Virginia 22302, or by telephone (703) 305-2680.

SUPPLEMENTARY INFORMATION:

The Food and Nutrition Service published a final rule in the Federal Register, 81 FR 23086, on April 19, 2016, to amend Food Distribution regulations at 7 CFR part 250 to revise and clarify requirements to ensure that USDA donated foods are distributed, stored and managed in the safest, most efficient and cost-effective manner, at State and recipient agency levels. This final rule correction makes a technical correction in 7 CFR 250.30(c)(2) by correcting the prior amendatory instructions to allow the paragraph at (c)(2) to publish in the CFR in lieu of a “reserved” paragraph. All other information in the final rule remains unchanged.

List of Subjects in 7 CFR Part 250

Disaster assistance, Food assistance programs, Grant programs—social programs, Reporting and recordkeeping requirements.

Accordingly, 7 CFR part 250 is corrected by making the following correcting amendments:

PART 250—DONATION OF FOODS FOR USE IN THE UNITED STATES, ITS TERRITIORIES AND POSSESSIONS AND AREAS UNDER ITS JURISDICTION 1. The authority citation for part 250 continues to read as follows: Authority:

5 U.S.C. 301; 7 U.S.C. 612c, 612c note, 1431, 1431b, 1431e, 1431 note, 1446a-1, 1859, 2014, 2025; 15 U.S.C. 713c; 22 U.S.C. 1922; 42 U.S.C. 1751, 1755, 1758, 1760, 1761, 1762a, 1766, 3030a, 5179, 5180.

2. In § 250.30, add paragraph (c)(2) to read as follows:
§ 250.30 State processing of donated foods.

(c) * * *

(2) These criteria will be reviewed by the appropriate FNS Regional Office during the management evaluation review of the distributing agency. Distributing agencies and subdistributing agencies which enter into contracts on behalf of recipient agencies but which do not limit the types of end products which can be sold or the number of processors which can sell end products within the State are not required to follow the selection criteria. In addition to utilizing these selection criteria, when a contracting agency enters into a contract both for the processing of donated food and the purchase of the end products produced from the donated food, the procurement standards set forth in 2 CFR part 200, subpart D and Appendix II, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards and USDA implementing regulations at 2 CFR part 400 and part 416 must be followed. Recipient agencies which purchase end products produced under Statewide agreements are also required to comply with 2 CFR part 200, subpart D and USDA implementing regulations at 2 CFR part 400 and part 416. Contracting agencies shall not enter into contracts with processors which cannot demonstrate the ability to meet the terms and conditions of the regulations and the distributing agency agreements; furnish prior to the delivery of any donated foods for processing, a performance bond, an irrevocable letter of credit or an escrow account in an amount sufficient to protect the contract value of donated food on hand and on order; demonstrate the ability to distribute end products to eligible recipient agencies; provide a satisfactory record of integrity, business ethics and performance and provide adequate storage.

Dated: October 24, 2016. Telora T. Dean, Acting Administrator, Food and Nutrition Service.
[FR Doc. 2016-26329 Filed 10-31-16; 8:45 am] BILLING CODE 3410-30-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2012-1293; Directorate Identifier 2012-NE-45-AD; Amendment 39-18700; AD 2016-22-11] RIN 2120-AA64 Airworthiness Directives; Engine Alliance Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are superseding airworthiness directive (AD) 2013-02-06 for all Engine Alliance (EA) GP7270 and GP7277 turbofan engines with certain part number (P/N) high-pressure turbine (HPT) stage 2 nozzle segments installed. AD 2013-02-06 required initial and repetitive borescope inspections (BSI) and removal from service of these nozzles before further flight if one or more burn holes were detected in any HPT stage 2 nozzle segment. AD 2013-02-06 also required removal from service of these HPT stage 2 nozzle segments at the next engine shop visit. This AD requires the same inspections as AD-2013-02-06, requires removal of affected HPT stage 2 nozzles at next piece-part exposure, and adds certain P/Ns to the applicability. This AD was prompted by another report of inadequate cooling of the HPT stage 1 shroud and stage 2 nozzle, leading to damage to the HPT stage 2 nozzle, burn-through of the turbine case, and in-flight shutdown. We are issuing this AD to prevent HPT stage 2 nozzle failure, uncontrolled fire, in-flight shutdown, and damage to the airplane.

DATES:

This AD is effective November 16, 2016.

We must receive any comments on this AD by December 16, 2016.

ADDRESSES:

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

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

Fax: 202-493-2251.

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

Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2012-1293; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Martin Adler, Aerospace Engineer, Engine & Propeller Directorate, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7157; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

On January 15, 2013, we issued AD 2013-02-06, Amendment 39-17327 (78 FR 5710, January 28, 2013), (“AD 2013-02-06”), for all Engine Alliance GP7270 and GP7277 turbofan engines with an HPT stage 2 nozzle, P/N 2101M24G01, 2101M24G02, or 2101M24G03, installed. AD 2013-02-06 required initial and repetitive BSIs and removal from service of these nozzles before further flight if any burn holes were detected in the affected nozzles. AD 2013-02-06 also required removal from service of the affected nozzles at the next engine shop visit. AD 2013-02-06 resulted from a report of inadequate cooling of the HPT stage 2 nozzle, leading to damage to the HPT stage 2 nozzle, burn-through of the turbine case, and in-flight shutdown. We issued AD 2013-02-06 to prevent HPT stage 2 nozzle failure, uncontrolled fire, in-flight shutdown, and damage to the airplane.

Actions Since AD 2013-02-06 Was Issued

Since we issued AD 2013-02-06, we received another report of inadequate cooling of the HPT stage 1 shroud and stage 2 nozzle, leading to damage to the HPT stage 2 nozzle, burn-through of the turbine case, and in-flight shutdown. This event occurred with HPT stage 2 nozzle, P/N 2101M24G04, 2101M24G05, or 2101M24G06 installed. Investigation revealed that the event was caused by damage to the HPT stage 2 nozzle due to inadequate part cooling. We are issuing this AD to prevent HPT stage 2 nozzle failure, uncontrolled fire, in-flight shutdown, and damage to the airplane.

Related Service Information

We reviewed EA Service Bulletins EAGP7-72-190, dated December 6, 2012 and EAGP7-72-262, Revision No. 5, dated December 18, 2015. This service information describes procedures for inspecting the HPT stage 2 nozzle segments.

FAA's Determination

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

AD Requirements

This AD requires initial and repetitive BSIs of the HPT stage 1 shroud and HPT stage 2 nozzle segments and removal from service of these nozzle segments before further flight if one or more burn holes are detected on the HPT stage 2 nozzle or if the HPT stage 1 shroud is found distorted. This AD also requires removal from service of any HPT stage 2 nozzle segment, P/N 2101M24G01, 2101M24G02, 2101M24G03, 2101M24G04, 2101M24G05, or 2101M24G06, at next piece-part exposure.

FAA's Justification and Determination of the Effective Date

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2012-1293 and Directorate Identifier 2012-NE-45-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

Costs of Compliance

We estimate that this AD will affect no engines installed on airplanes of U.S. registry. We also estimate that it will take about two hours per engine to perform a BSI of the HPT stage 2 nozzle. The average labor rate is $85 per hour. Required parts cost about $504,486 per engine. Based on these figures, we estimate the cost of this AD to U.S. operators to be $0.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2013-02-06, Amendment 39-17327 (78 FR 5710, January 28, 2013) and adding the following new AD: 2016-22-11 Engine Alliance: Amendment 39-18700; Docket No. FAA-2012-1293; Directorate Identifier 2012-NE-45-AD. (a) Effective Date

This AD is effective November 16, 2016.

(b) Affected ADs

This AD replaces AD 2013-02-06, Amendment 39-17327 (78 FR 5710, January 28, 2013).

(c) Applicability

This AD applies to all Engine Alliance GP7270 and GP7277 turbofan engines with a high-pressure turbine (HPT) stage 2 nozzle segment, part number (P/N) 2101M24G01, 2101M24G02, 2101M24G03, 2101M24G04, 2101M24G05, or 2101M24G06, installed.

(d) Unsafe Condition

This AD was prompted by a report of inadequate cooling of the HPT stage 1 shroud and stage 2 nozzle, leading to damage to the HPT stage 2 nozzle, burn-through of the turbine case, and in-flight shutdown. We are issuing this AD to prevent HPT stage 2 nozzle failure, uncontrolled fire, in-flight shutdown, and damage to the airplane.

(e) Compliance

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

(1) Perform a 360 degree borescope inspection of the HPT stage 1 shroud and stage 2 nozzle as follows:

(i) For engines with nozzles installed at a shop visit that did not include full engine overhaul, borescope inspect the HPT stage 1 shroud and stage 2 nozzle as follows:

(A) If the nozzle has fewer than 1,050 cycles-since-new (CSN) or cycles-since-repair (CSR) on the effective date of this AD, before the nozzle has accumulated 1,100 CSN or CSR.

(B) If the nozzle has 1,050 or more CSN or CSR on the effective date of this AD, within the next 50 cycles.

(ii) For all other engines, borescope inspect the HPT stage 1 shroud and HPT stage 2 nozzle as follows:

(A) If the nozzle has fewer than 1,450 CSN or CSR on the effective date of this AD, before the nozzle has accumulated 1,500 CSN or CSR.

(B) If the nozzle has 1,450 or more CSN or CSR on the effective date of this AD, within the next 50 cycles.

(iii) Thereafter, repetitively borescope inspect the HPT stage 1 shroud and stage 2 nozzle as follows:

(A) For engines with HPT stage 2 nozzle segments, P/N 2101M24G01, 2101M24G02, or 2101M24G03, within every 150 additional cycles-in-service (CIS).

(B) For engines with HPT stage 2 nozzle segments, P/N 2101M24G04, 2101M24G05, or 2101M24G06, within every 300 additional CIS.

(2) If any burn holes are detected through the surface of the nozzle or if the shroud is distorted radially inward with evidence of blade tip rubs, remove the HPT stage 1 shroud and HPT stage 2 nozzle from service before further flight.

(f) Mandatory Terminating Action

Replace HPT stage 2 nozzle segments, P/N 2101M24G01, 2101M24G02, 2101M24G03, 2101M24G04, 2101M24G05, and 2101M24G06, at the next piece-part exposure, with parts eligible for installation.

(g) Definition

For the purpose of this AD, piece-part exposure is when the HPT stage 2 nozzle is removed from the engine and completely disassembled.

(h) Alternative Methods of Compliance (AMOCs)

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

(i) Related Information

For more information about this AD, contact Martin Adler, Aerospace Engineer, Engine & Propeller Directorate, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7157; fax: 781-238-7199; email: [email protected]

(j) Material Incorporated by Reference

None.

Issued in Burlington, Massachusetts, on October 25, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2016-26280 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5423; Directorate Identifier 2016-NE-09-AD; Amendment 39-18694; AD 2016-22-05] RIN 2120-AA64 Airworthiness Directives; Pratt & Whitney Division Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Pratt & Whitney (PW) PW4164, PW4164-1D, PW4168, PW4168-1D, PW4168A, PW4168A-1D, and PW4170 turbofan engines. This AD was prompted by several instances of fuel leaks on PW engines installed with the Talon IIB combustion chamber configuration. This AD requires initial and repetitive inspections of the affected fuel nozzles and their replacement with parts eligible for installation. We are issuing this AD to prevent failure of the fuel nozzles, which could lead to engine fire and damage to the airplane.

DATES:

This AD is effective December 6, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 6, 2016.

ADDRESSES:

For service information identified in this final rule, contact Pratt & Whitney Division, 400 Main St., East Hartford, CT 06108; phone: 860-565-8770; fax: 860-565-4503. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5423.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5423; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Besian Luga, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7750; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain PW PW4164, PW4164-1D, PW4168, PW4168-1D, PW4168A, PW4168A-1D, and PW4170 turbofan engines. The NPRM published in the Federal Register on April 20, 2016 (81 FR 23217) (“the NPRM”). The NPRM was prompted by several instances of fuel leaks on PW engines installed with the Talon IIB combustion chamber configuration. The NPRM proposed to require initial and repetitive inspections of the affected fuel nozzles and their replacement with parts eligible for installation. We are issuing this AD to prevent failure of the fuel nozzles, which could lead to engine fire and damage to the airplane.

Comments

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

Request To Change Definition of Engine Shop Visit

Delta Air Lines (Delta) requested that the definition of an “engine shop visit” be defined as the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges. Delta requested this change so that the definition of an engine shop visit in this AD would be consistent with prior ADs.

We disagree. The redefined shop visit interval as requested would result in less frequent replacements of fuel nozzles and an unacceptable fleet risk. We did not change this AD.

Conclusion

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

Related Service Information Under 1 CFR Part 51

We reviewed PW Alert Service Bulletin (ASB) PW4G-100-A73-45, dated February 16, 2016. The ASB describes procedures for inspecting and replacing the fuel nozzles. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD will affect 72 engines installed on airplanes of U.S. registry. We also estimate that it will take about 2.2 hours per engine to perform each inspection and 48 hours per engine to replace the fuel nozzle. The average labor rate is $85 per hour. We also estimate that parts cost would be $15,780 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,443,384.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-22-05 Pratt & Whitney Division: Amendment 39-18694; Docket No. FAA-2016-5423; Directorate Identifier 2016-NE-09-AD. (a) Effective Date

This AD is effective December 6, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Pratt & Whitney (PW):

(1) PW4164, PW4168, and PW4168A model engines that have incorporated PW Service Bulletin (SB) PW4G-100-72-214, dated December 15, 2011, or PW SB PW4G-100-72-219, Revision No. 1, dated October 5, 2011, or original issue, and have fuel nozzles, part number (P/N) 51J345, installed;

(2) PW4168A model engines with Talon IIA outer combustion chamber assembly, P/N 51J100, and fuel nozzles, P/N 51J345, with serial numbers CGGUA19703 through CGGUA19718 inclusive or CGGUA22996 and higher, installed;

(3) PW4168A-1D and PW4170 model engines with engine serial numbers P735001 thru P735190 inclusive and fuel nozzles, P/N 51J345, installed; and

(4) PW4164-1D, PW4168-1D, PW4168A-1D, and PW4170 model engines that have incorporated PW SB PW4G-100-72-220, Revision No. 4, dated September 30, 2011, or earlier revision, and have fuel nozzles, P/N 51J345, installed.

(d) Unsafe Condition

This AD was prompted by nine instances of fuel leaks on PW engines with the Talon IIB combustion chamber configuration installed. We are issuing this AD to prevent failure of the fuel nozzles, which could lead to engine fire and damage to the airplane.

(e) Compliance

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

(1) Within 800 flight hours after the effective date of this AD, and thereafter within every 800 flight hours accumulated on the fuel nozzles, do the following:

(i) Inspect all fuel nozzles, P/N 51J345. Use Part A of PW Alert Service Bulletin (ASB) PW4G-100-A73-45, dated February 16, 2016, to do the inspection.

(ii) For any fuel nozzle that fails the inspection, before further flight, remove and replace it with a part that is eligible for installation.

(2) At the next shop visit after the effective date of this AD, and thereafter at each engine shop visit, remove all fuel nozzles, P/N 51J345, unless fuel nozzles were replaced within the last 100 flight hours. Use Part B of PW ASB PW4G-100-A73-45, dated February 16, 2016, to replace the fuel nozzles with parts eligible for installation.

(f) Definitions

(1) For the purpose of this AD, an “engine shop visit” means the induction of an engine into the shop for any maintenance.

(2) For the purpose of this AD, a part that is “eligible for installation” is a fuel nozzle, with a P/N other than 51J345, that is FAA-approved for installation or a fuel nozzle, P/N 51J345, that meets the requirements of Part A, paragraph 4.B., or Part B, paragraph 1.B. of PW ASB PW4G-100-A73-45, dated February 16, 2016.

(g) Alternative Methods of Compliance (AMOCs)

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

(h) Related Information

For more information about this AD, contact Besian Luga, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7750; fax: 781-238-7199; email: [email protected]

(i) Material Incorporated by Reference

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

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

(i) Pratt & Whitney (PW) Alert Service Bulletin PW4G-100-A73-45, dated February 16, 2016.

(ii) Reserved.

(3) For PW service information identified in this AD, contact Pratt & Whitney Division, 400 Main St., East Hartford, CT 06108; phone: 860-565-8770; fax: 860-565-4503.

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

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

Issued in Burlington, Massachusetts, on October 25, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2016-26183 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6990; Directorate Identifier 2016-NE-14-AD; Amendment 39-186990; AD 2016-22-10] RIN 2120-AA64 Airworthiness Directives; Turbomeca S.A. Turboshaft Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Turbomeca S.A. Arriel 1, 1A, 1A1, 1A2, 1B, 1B2, 1C, 1C1, 1C2, 1D, 1D1, 1E, 1E2, 1K1, 1S, and 1S1 turboshaft engines. This AD requires removing the centrifugal impeller and replacing with a part eligible for installation. This AD was prompted by an anomaly that occurred during the grinding operation required by modification TU376, which increases the clearance between the rear curvic coupling of the centrifugal impeller and the fuel injection manifold. We are issuing this AD to prevent failure of the centrifugal impeller, uncontained centrifugal impeller release, damage to the engine, and damage to the helicopter.

DATES:

This AD becomes effective December 6, 2016.

ADDRESSES:

See the FOR FURTHER INFORMATION CONTACT section.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6990; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on July 28, 2016 (81 FR 49575). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

Turbomeca reported an anomaly that was generated during the grinding operation associated to the application of modification TU376, which increases the clearance between the rear curvic coupling of the centrifugal impeller and the fuel injection manifold.

This condition, if not corrected, could lead to crack initiation and propagation in the centrifugal impeller bore area, possibly resulting in centrifugal impeller failure, with consequent damage to, and reduced control of, the helicopter. To address this potential unsafe condition, the life of the affected centrifugal impellers was reduced and Turbomeca published Mandatory Service Bulletin (MSB) 292 72 0848 to inform operators about the life reduction and to provide instructions for the replacement of the affected centrifugal impellers.

For the reasons described above, this AD requires replacement of each affected centrifugal impeller before it exceeds the applicable reduced life limit.

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6990.

Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 49575, July 28, 2016) or on the determination of the cost to the public.

Conclusion

We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed.

Related Service Information

Turbomeca S.A. has issued Mandatory Service Bulletin (MSB) 292 72 0848, Version B, dated April 13, 2016. The MSB describes procedures for reducing the life limit of the centrifugal impellers affected by an anomaly that occurred during the grinding operation required by modification TU376. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 3 engines installed on helicopters of U.S. registry. We also estimate that it would take about 22 hours per engine to comply with this AD. The average labor rate is $85 per hour. Required parts cost about $96,518 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $295,164.

Authority for This Rulemaking

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

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

Regulatory Findings

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

For the reasons discussed above, I certify 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 to the extent that it justifies making a regulatory distinction, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-22-10 Turbomeca S.A.: Amendment 39-186990; Docket No. FAA-2016-6990; Directorate Identifier 2016-NE-14-AD. (a) Effective Date

This AD becomes effective December 6, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to certain Arriel 1, 1A, 1A1, 1A2, 1B, 1B2, 1C, 1C1, 1C2, 1D, 1D1, 1E, 1E2, 1K1, 1S, and 1S1 turboshaft engines, with modification TU376 installed.

(d) Reason

This AD was prompted by an anomaly that occurred during the grinding operation required by modification TU376, which increases the clearance between the rear curvic coupling of the centrifugal impeller and the fuel injection manifold. We are issuing this AD to prevent failure of the centrifugal impeller, uncontained centrifugal impeller release, damage to the engine, and damage to the helicopter.

(e) Actions and Compliance

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

(1) Remove from service, any centrifugal impeller listed in Table 1 to paragraph (e) of this AD, before exceeding the applicable cycles since new (CSN) and replace with a centrifugal impeller not listed in Table 1 to paragraph (e) of this AD.

Table 1 to Paragraph (e)—Centrifugal Impeller CSNs Part No. Serial No. CSN 0292254040 44 5,129 0292254040 1762FT 11,476 0292254050 1676CAR 6,281 0292254050 5333OTT 5,495 0292254050 5017OTT 5,491 0292254050 1136CAR 8,734 0292254050 3655OTT 4,600 0292254050 1757CAR 7,913 0292254050 1738CAR 10,640 0292254050 1149CAR 12,273 0292254050 2677OTT 11,145 0292254050 3109OTT 10,662 0292254050 3496OTT 5,562 0292254050 2074CAR 7,423 729225293A 290CAR 6,326 729225293A 1227FT 8,139 729225293A 504FB 4,600 729225293A 2517OTT 9,732 729225293A 2165OTT 6,163 729225293A 2194FT 11,461 729225293A 1331OTT 12,513 729225293A 1301FT 7,262 729225293A 1567FT 6,305 729225293A 783FB 8,307 729225293A 98OTT 9,492

(2) Reserved.

(f) Alternative Methods of Compliance (AMOCs)

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

(g) Related Information

(1) For more information about this AD, contact Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email: [email protected]

(2) Refer to MCAI, European Aviation Safety Agency AD 2016-0090, dated May 10, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2016-6990.

(h) Material Incorporated by Reference

None.

Issued in Burlington, Massachusetts, on October 24, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2016-26184 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 73 and 74 [Docket No. FDA-2016-F-0821] Listing of Color Additives Exempt From Certification; Titanium Dioxide and Listing of Color Additives Subject to Certification; [Phthalocyaninato (2-)] Copper AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule.

SUMMARY:

The Food and Drug Administration (FDA or we) is amending the color additive regulations to provide for the safe use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for intraocular lenses. This action is in response to a petition filed by Milton W. Chu, M.D.

DATES:

This rule is effective December 2, 2016. See section IX for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing by December 1, 2016.

ADDRESSES:

You may submit objections and requests for a hearing as follows:

Electronic Submissions

Submit electronic objections in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Objections submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your objection, that information will be posted on http://www.regulations.gov.

• If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

Written/Paper Submissions

Submit written/paper submissions as follows:

Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

• For written/paper objections submitted to the Division of Dockets Management, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

Instructions: All submissions received must include the Docket No. FDA-2016-F-0821 for “Listing of Color Additives Exempt From Certification; Titanium Dioxide and Listing of Color Additives Subject to Certification; [Phthalocyaninato (2-)] Copper.” Received objections will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

• Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT:

Laura A. Dye, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1275.

SUPPLEMENTARY INFORMATION:

I. Introduction

In a document published in the Federal Register of March 22, 2016 (81 FR 15173), we announced that we had filed a color additive petition (CAP 6C0305), submitted by Milton W. Chu, M.D. (petitioner), 5800 Santa Rosa Rd., Suite 111, Camarillo, CA 93012. The petition proposed to amend the color additive regulations in § 73.3126 (21 CFR 73.3126) and § 74.3045 (21 CFR 74.3045) to provide for the safe use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for intraocular lenses (IOLs). IOLs are devices made of materials such as glass or plastic and are intended to be implanted to replace the natural lens of an eye (21 CFR 886.3600). The orientation marks are intended to aid the surgeon in visualization and placement of IOLs during lens implantation surgery. Because IOLs are permanently implanted, titanium dioxide and [phthalocyaninato (2-)] copper, in the colored orientation marks, will come into direct contact with a patient's eye for a significant amount of time. These color additives are, therefore, subject to section 721 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379e).

II. Background

Titanium dioxide is already approved as a color additive for foods (§ 73.575), drugs (§ 73.1575), cosmetics (§ 73.2575), and medical devices (§ 73.3126). Regarding its use in medical devices, titanium dioxide (CAS Reg. No. 13463-67-7, Color Index No. 77891) is currently approved under § 73.3126(b)(1) for use as a color additive in contact lenses in amounts not to exceed the minimum reasonably required to accomplish the intended coloring effect and must meet the identity and specification requirements in § 73.575(a)(1) and (b). Titanium dioxide is exempt from certification under section 721(c) of the FD&C Act because we previously determined that certification was not necessary for the protection of public health (51 FR 24815, July 9, 1986).

[Phthalocyaninato (2-)] copper (CAS Reg. No. 147-14-8, Color Index No. 74160) is currently approved as a color additive under § 74.3045(c)(1) for use in coloring certain non-absorbable sutures for general and ophthalmic surgery, and for use in coloring specific monofilaments used as supporting side struts (haptics) that hold the IOLs in place in the eye, at a level up to 0.5 percent by weight of the suture or haptic material. In addition, it is currently approved as a color additive under § 74.3045(c)(2) for use in coloring contact lenses in amounts not to exceed the minimum amount reasonably required to accomplish the intended coloring effect. We previously determined that batch certification was necessary to ensure the safety of [phthalocyaninato (2-)] copper (34 FR 6777, April 23, 1969).

III. Safety Evaluation A. Determination of Safety

Under section 721(b)(4) of the FD&C Act, a color additive may not be listed for a particular use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations at 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence that establishes with reasonable certainty that no harm will result from the intended use of the color additive. To establish with reasonable certainty that these color additives intended to color IOL orientation marks are not harmful under their intended conditions of use, we considered exposure to the additives and their impurities, each additive's toxicological data, and other relevant information (such as published literature) available to us.

B. Safety of Petitioned Use of the Color Additives

Regarding the petitioned use, titanium dioxide and [phthalocyaninato (2-)] copper are intended to color orientation marks for IOL materials (polymers) to create white and translucent or opaque blue marks that are typically 100-250 microns (μm) in diameter and 80-150 μm in depth. Titanium dioxide will be used in amounts not to exceed the minimum reasonably required to accomplish the intended coloring effect of the orientation marks. [Phthalocyaninato (2-)] copper will be used at levels not to exceed 0.5 percent by weight of the orientation marks.

To assess safety, we compared an individual's estimated exposure to these two color additives for the petitioned use to color IOL orientation marks to the approved uses of these color additives, including in IOL haptics and opaque contact lenses, because these uses are similar. As part of our previous approval for titanium dioxide used to color contact lenses, we estimated exposure to titanium dioxide from this use to be 270 nanograms per person per day (ng/p/d) over the lens lifetime (51 FR 24815), which does not significantly contribute to the cumulative exposure when compared to the exposure to titanium dioxide from the approved uses of mica-based pearlescent pigments (of which titanium dioxide is a component) in food and pharmaceuticals (Ref. 1). Similarly, we previously estimated exposure to [phthalocyaninato (2-)] copper from the use of surgical sutures, contact lenses, and specific monofilaments used as supporting haptics for IOLs to be 310 ng/p/d, 280 ng/p/d, and 0.3 ng/p/d, respectively (64 FR 23185, April 30, 1999; 51 FR 39370, October 28, 1986; and 52 FR 15944, May 1, 1987). With respect to the petitioned use, we estimated that the worst-case lifetime exposure to titanium dioxide and [phthalocyaninato (2-)] copper used to color orientation marks would be no greater than 0.06 ng/p/d and 0.004 ng/p/d, respectively, over a 70-year lifetime (Ref. 2). This exposure estimate is conservative as it assumes 100 percent migration of the color additives from the IOLs into the ocular fluid of the eye over a lifespan of 70 years following lens implantation. However, we expect that the color additives in the orientation marks will most likely be either chemically bound or otherwise integrated into the lens material, which would limit migration of the color additives into the ocular fluid of the eye. This means that the actual exposures to titanium dioxide and [phthalocyaninato (2-)] copper to color IOL orientation marks are expected to be far less than the worst-case exposure estimates for these color additives and insignificant in comparison to the cumulative exposures from the other approved uses of these color additives that we have already established to be safe (Ref. 2).

In assessing biocompatibility and toxicity of IOLs, we consider the International Standard for intraocular lens testing for biocompatibility (ISO 11979-5) as an appropriate standard. In general, ISO 11979-5 recommends investigations on the following biological endpoints: Cytotoxicity, genotoxicity, local effects after implantation, and sensitization potential, in the context of physicochemical properties.

The petitioner conducted a cytotoxicity study in which cultured cells were exposed to a mixture of titanium dioxide and [phthalocyaninato (2-)] copper in direct contact for at least 24 hours. Both color additives were found to be noncytotoxic in this study. Cytotoxicity studies of [phthalocyaninato (2-)] copper in previous petitions also indicated no cytotoxicity (Ref. 3). Additionally, the toxicology data for [phthalocyaninato (2-)] copper from previous petitions, as well as relevant data found in the Organization for Economic Cooperation and Development's Screening Information Dataset (OECD's SIDS) database, all indicated negative results for genotoxicity, carcinogenicity, implantation safety, and sensitization potential (Ref. 3). Similarly, data on titanium dioxide in OECD's SIDS database reported negative results for genotoxicity and sensitization potential. We conclude that the available toxicology data are sufficient to support the safety of the proposed expanded uses of titanium dioxide and [phthalocyaninato (2-)] copper.

IV. Conclusion

Based on the data and information in the petition and other relevant material, we conclude that the petitioned use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for IOLs is safe. We further conclude that these additives will achieve their intended technical effect and are suitable for the petitioned use. Consequently, we are amending the color additive regulations in parts 73 and 74 as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we conclude that certification of titanium dioxide remains unnecessary for the protection of the public health. We also conclude that batch certification of [phthalocyaninato (2-)] copper continues to be necessary to protect the public health.

V. Public Disclosure and Confidentiality of Data and Information in a Color Additive Rule

In accordance with § 71.15 (21 CFR 71.15), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 71.15, we will delete from the documents any materials that are not available for public disclosure.

VI. Analysis of Environmental Impact

We previously considered the environmental effects of this rule, as stated in the March 22, 2016, notice of petition for CAP 6C0305 (81 FR 15173). We stated that we had determined, under 21 CFR 25.32(l), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

VII. Paperwork Reduction Act of 1995

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

VIII. Objections

This rule is effective as shown in the DATES section except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Division of Dockets Management (see ADDRESSES) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) of the regulation to which you object and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register.

IX. References

The following references are on display in the Division of Dockets Management (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at http://www.regulations.gov.

1. Memorandum from H. Lee, Division of Petition Review, Chemistry Review Team, to P. DeLeo, Division of Petition Review, Regulatory Group I, FDA, March 1, 2005. 2. Memorandum from H. Lee, Division of Petition Review, Chemistry Review Team, to L. Dye, Division of Petition Review, Regulatory Group I, FDA, April 20, 2016. 3. Memorandum from Y. Zang, Division of Petition Review, Toxicology Review Team, to L. Dye, Division of Petition Review, Regulatory Group I, FDA, June 30, 2016. List of Subjects 21 CFR Part 73

Color additives, Cosmetics, Drugs, Medical devices.

21 CFR Part 74

Color additives, Cosmetics, Drugs.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and re-delegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR parts 73 and 74 are amended as follows:

PART 73—LISTING OF COLOR ADDITIVES EXEMPT FROM CERTIFICATION 1. The authority citation for part 73 continues to read as follows: Authority:

21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e.

2. In § 73.3126, revise paragraph (b)(1) to read as follows:
§ 73.3126 Titanium dioxide.

(b) * * * (1) The substance listed in paragraph (a) of this section may be used as a color additive in contact lenses and intraocular lens orientation marks in amounts not to exceed the minimum reasonably required to accomplish the intended coloring effect.

PART 74—LISTING OF COLOR ADDITIVES SUBJECT TO CERTIFICATION 3. The authority citation for part 74 continues to read as follows: Authority:

21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e.

4. In § 74.3045, revise paragraphs (c)(1) introductory text and (c)(1)(i) to read as follows:
§ 74.3045 [Phthalocyaninato (2-)] copper.

(c) * * * (1) The color additive [phthalocyaninato(2-)] copper may be safely used to color polypropylene sutures, polybutester (the generic designation for the suture fabricated from 1,4-benzenedicarboxylic acid, polymer with 1,4-butanediol and alpha-hydro-omega-hydroxypoly(oxy-1,4-butanediyl), CAS Reg. No. 37282-12-5) nonabsorbable sutures for use in general and ophthalmic surgery, polybutylene terephthalate nonabsorbable monofilament sutures for general and ophthalmic surgery, nonabsorbable sutures made from poly(vinylidene fluoride) and poly(vinylidene fluoride-co-hexafluoropropylene) for general and ophthalmic surgery, polymethylmethacrylate monofilament used as supporting haptics for intraocular lenses, and polymers used in orientation marks for intraocular lenses, subject to the following restrictions:

(i) The quantity of the color additive does not exceed 0.5 percent by weight of the suture, haptic material, or orientation mark.

Dated: October 25, 2016. Susan Bernard, Director, Office of Regulations, Policy and Social Science, Center for Food Safety and Applied Nutrition.
[FR Doc. 2016-26310 Filed 10-31-16; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 117 [Docket No. FDA-2011-N-0920] What You Need To Know About the Food and Drug Administration Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food; Small Entity Compliance Guide; Availability AGENCY:

Food and Drug Administration, HHS.

ACTION:

Notification of availability.

SUMMARY:

The Food and Drug Administration (FDA, the Agency, or we) is announcing the availability of a guidance for industry entitled “What You Need To Know About the FDA Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food”—Small Entity Compliance Guide. The small entity compliance guide (SECG) is intended to help small entities comply with the final rule titled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food.”

DATES:

Submit either electronic or written comments on FDA guidances at any time.

ADDRESSES:

You may submit comments as follows:

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

Written/Paper Submissions

Submit written/paper submissions as follows:

Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

Instructions: All submissions received must include the Docket No. FDA-2011-N-0920 for “What You Need To Know About the FDA Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food (21 CFR part 117).” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

Submit written requests for single copies of the SECG to the Office of Food Safety, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the SUPPLEMENTARY INFORMATION section for electronic access to the SECG.

FOR FURTHER INFORMATION CONTACT:

Jenny Scott, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1700.

SUPPLEMENTARY INFORMATION: I. Background

In the Federal Register of September 17, 2015 (80 FR 55908), we issued a final rule titled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (the final rule) in which we modernized the longstanding current good manufacturing practice requirements in 21 CFR part 110 and added the requirements for facilities subject to registration to establish and implement hazard analysis and risk-based preventive controls for human food. The final rule, which is codified at part 117 (21 CFR part 117), became effective November 16, 2015 (except for the amendment to part 110 in instruction 13, which is effective September 17, 2018, and paragraph (2) of the definition of “qualified auditor” in § 117.3, and §§ 117.5(k)(2), 117.8, 117.405(a)(2), 117.405(c), 117.410(d)(2)(ii), 117.430(d), 117.435(d), 117.475(c)(2), and 117.475(c)(13)) but has compliance dates staggered over several years after publication of the final rule.

We examined the economic implications of the final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612) and determined that the final rule will have a significant economic impact on a substantial number of small entities. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, as amended by Pub. L. 110-28), we are making available the SECG to explain the actions that a small entity must take to comply with the rule.

We are issuing the SECG consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

II. Paperwork Reduction Act of 1995

This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 117 have been approved under OMB control number 0910-0751.

III. Electronic Access

Persons with access to the Internet may obtain the SECG at either http://www.fda.gov/FoodGuidances, or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

Dated: October 26, 2016. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2016-26315 Filed 10-31-16; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 507 [Docket No. FDA-2011-N-0922] What You Need To Know About the Food and Drug Administration Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals; Small Entity Compliance Guide; Availability AGENCY:

Food and Drug Administration, HHS.

ACTION:

Notification of availability.

SUMMARY:

The Food and Drug Administration (FDA, the Agency, or we) is announcing the availability of a guidance for industry #241 entitled “What You Need To Know About the FDA Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals”—Small Entity Compliance Guide. The small entity compliance guide (SECG) is intended to help small entities comply with the final rule titled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals.”

DATES:

Submit either electronic or written comments on FDA guidances at any time.

ADDRESSES:

You may submit comments as follows:

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

Written/Paper Submissions

Submit written/paper submissions as follows:

Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

Instructions: All submissions received must include the Docket No. FDA-2011-N-0922 for “What You Need to Know About the FDA Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

Submit written requests for single copies of the SECG to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send two self-addressed adhesive labels to assist that office in processing your request. See the SUPPLEMENTARY INFORMATION section for electronic access to the SECG.

FOR FURTHER INFORMATION CONTACT:

Jeanette Murphy, Center for Veterinary Medicine (HFV-200), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20800, 240-402-6246.

SUPPLEMENTARY INFORMATION: I. Background

In the Federal Register of September 17, 2015 (80 FR 56170), we issued a final rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals” (the final rule) in which we established requirements for facilities subject to food registration to implement current good manufacturing practices and establish and implement hazard analysis and risk-based preventive controls for food for animals. The final rule, which is codified at part 507 (21 CFR part 507), became effective November 16, 2015 (except for paragraph (2) of the definition of “qualified auditor” in § 507.3, and §§ 507.12(a)(1)(ii), 507.105(a)(2), 507.105(c), 507.110(d)(2)(ii), 507.130(d), 507.135(d), 507.175(c)(2), and 507.175(c)(13)) but has compliance dates staggered over several years after publication of the final rule.

We examined the economic implications of the final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612) and determined that the final rule will have a significant economic impact on a substantial number of small entities. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, as amended by Pub. L. 110-28), we are making available the SECG to explain the actions that a small entity must take to comply with the rule.

We are issuing the SECG consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

II. Paperwork Reduction Act of 1995

This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 507 have been approved under 0910-0789.

III. Electronic Access

Persons with access to the Internet may obtain the SECG at http://www.fda.gov/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/default.htm, http://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm253380.htm, or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

Dated: October 26, 2016. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2016-26314 Filed 10-31-16; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0936] Safety Zone; Delaware River, Philadelphia, PA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of enforcement of regulation.

SUMMARY:

The Coast Guard will enforce regulations for a safety zone for an annual fireworks event in the Captain of the Port Delaware Bay zone from 6 p.m. to 8 p.m. on November 19, 2016. Enforcement of this zone is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after this fireworks event. During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port or a designated representative.

DATES:

The regulations in 33 CFR 165.506 will be enforced from 6 p.m. to 8 p.m. on November 19, 2016, for the safety zone identified in row (a)(16) of Table to § 165.506.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this notice of enforcement, call or email MST1 Thomas Simkins, Sector Delaware Bay Waterways Management Division, U.S. Coast Guard; telephone 215-271-4889, email [email protected]

SUPPLEMENTARY INFORMATION:

From 6 p.m. to 8 p.m. on November 19, 2016, the Coast Guard will enforce regulations in 33 CFR 165.506 for the safety zone in the Delaware River in Philadelphia, PA listed in row (a)(16) in the table in that section. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display.

Our regulations for recurring firework events in Captain of the Port Delaware Bay Zone, appear in § 165.506, Safety Zones; Fireworks Displays in the Fifth Coast Guard District, which specifies the location of the regulated area for this safety zone as all waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N., longitude 075°08′28.1″ W.; thence to latitude 39°56′29″ .1 N., longitude 075°07′56.5″ W., and bounded on the north by the Benjamin Franklin Bridge.

As specified in §  165.506, during the enforcement period no vessel may transit this safety zone without approval from the Captain of the Port Delaware Bay. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 165.506 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advanced notification of this enforcement period via Broadcast Notice to Mariners (BNM).

If the Captain of the Port Delaware Bay determines that the regulated area need not be enforced for the full duration, a BNM to grant general permission to enter the safety zone may be used.

Dated: October 27, 2016. Benjamin A. Cooper, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2016-26342 Filed 10-31-16; 8:45 am] BILLING CODE 9110-04-P
LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Part 201 [Docket No. RM 2011-6] Designation of Agent To Receive Notification of Claimed Infringement AGENCY:

U.S. Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

Under the Digital Millennium Copyright Act (“DMCA”), the U.S. Copyright Office is required to maintain a “current directory” of agents that have been designated by online service providers to receive notifications of claimed infringement. Since the DMCA's enactment in 1998, online service providers have designated agents with the Copyright Office using the Office's or their own paper form, and the Office has made scanned copies these filings available to the public by posting them on the Office's Web site. Although the DMCA requires service providers to update their designations with the Office as information changes, an examination of the Office's current directory reveals that many have failed to do so, and that much of the information currently contained in the directory has become inaccurate and out of date. On September 28, 2011, the Office issued a notice of proposed rulemaking to update relevant regulations in anticipation of creating a new electronic system through which service providers would be able to more efficiently submit, and the public would be better able to search for, designated agent information. On May 25, 2016, with the electronic system in its final stages of development, the Office issued a notice of proposed rulemaking proposing significantly lower fees for designating agents through the forthcoming online system. As the next step in implementation, the Office today announces the adoption of a final rule to govern the designation and maintenance of DMCA agent information under the new electronic system and to establish the applicable fees.

DATES:

Effective December 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Sarang V. Damle, General Counsel and Associate Register of Copyrights, by email at [email protected], or Jason E. Sloan, Attorney-Advisor, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

In 1998, Congress enacted section 512 of title 17, United States Code, as part of the Digital Millennium Copyright Act (“DMCA”).1 Among other things, section 512 provides safe harbors from copyright infringement liability for online service providers that are engaged in specified activities and that meet certain eligibility requirements.2 A service provider seeking to avail itself of the safe harbor in section 512(c) (for storage of material at the direction of a user) is required to designate an agent to receive notifications of claimed copyright infringement by making contact information for the agent available to the public on its Web site, and by providing such information to the Copyright Office.3 The safe harbors in subsections 512(b) (for system caching) and (d) (for information location tools) incorporate the notice provisions of section 512(c) and thus also require that notices of infringement be sent to “the designated agent of a service provider” 4 —that is, an agent that has been designated by the service provider as described above.5

1 Public Law 105-304, 112 Stat. 2860 (1998).

2 17 U.S.C. 512.

3Id. at 512(c)(2).

4Id. at 512(c)(3)(A).

5See id. at 512(b)(2)(E), (d)(3).

The language of section 512(c)(2) makes clear that a service provider must maintain the same contact information required under section 512(c)(2)(A) and (B) both on its Web site and at the Copyright Office.6 A service provider that fails to maintain current and accurate information, both on its Web site and with the Office, may not satisfy the statutory requirements necessary for invoking the limitations on liability in section 512.

6 63 FR 59233, 59234 (Nov. 3, 1998) (“[A] service provider designates an agent by providing information required by Copyright Office regulations both on its publicly available Web site and in a filing with the Copyright Office.”); see also BWP Media USA Inc. v. Hollywood Fan Sites LLC, 115 F. Supp. 3d 397, 403 (S.D.N.Y. 2015) (“[T]he statutory scheme expressly requires two publicly available, parallel sources of a service provider's DMCA agent information (the service provider's Web site and the [Copyright Office] directory) in order for that provider to be shielded by the § 512(c) safe harbor.”); 4 Melville Nimmer & David Nimmer, Nimmer on Copyright 12B.04[B][3] (2015) (“Nimmer on Copyright”) (“In addition to providing the foregoing information to the Copyright Office, the service provider must provide the same information to the public.”).

As Congress made clear in enacting section 512(c)(2), its expectation was that “the parties will comply with the functional requirements of the notification provisions—such as providing sufficient information so that a designated agent or the complaining party submitting a notification may be contacted efficiently—in order to ensure that the notification and take down procedures set forth in this subsection operate smoothly.” 7 A service provider's failure to maintain up-to-date information would be contrary to that congressional intent, and would substantially undermine the statutory regime, as inaccurate or outdated information could significantly affect the ability of a copyright owner to contact a service provider's designated agent. The end result in such a case would be the same as if the service provider had not designated an agent at all—notifications of claimed infringement cannot effectively be submitted. Because providing inaccurate or outdated information can be functionally equivalent to not designating an agent, it follows that just as designating an agent is a prerequisite for obtaining safe harbor protection,8 keeping that designation current and accurate must be an ongoing prerequisite as well.9

7 Staff of H. Comm. on the Judiciary, 105th Cong., Section-By-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, at 32 (Comm. Print 1998).

8See 17 U.S.C. 512(c)(2) (“The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement. . . .”) (emphasis added); see also 4 Nimmer on Copyright 12B.04[B][3] (“Section 512 provides that a service provider may take advantage of the instant limitation only if it has designated an agent to receive the notifications of claimed infringement.”).

9 Several commenters in this proceeding agree that failing to keep designations current and accurate could result in the loss of safe harbor protection. See infra note 89 and accompanying text.

Moreover, the statute specifically directs the Copyright Office to “maintain a current directory of agents,” and authorizes a fee to cover the “costs of maintaining the directory.” 10 The purpose of this central repository of designated agent information—separate and apart from the information required to be maintained on each service provider's Web site—is “[t]o facilitate easy access to the identity of all designated agents” for public use.11 If designated agent contact information contained in the Office's directory is inaccurate or out of date, it would significantly hinder the ability of copyright owners to efficiently contact the service provider's agent. This is especially so because it may be difficult to locate contact information for a designated agent on a service provider's own Web site.12 Thus, in adopting regulations to implement the statute, the Office's ultimate task is to ensure that the directory fulfills its essential purpose as a convenient repository for “current” designated agent information.13

10 17 U.S.C. 512(c)(2).

11See 4 Nimmer on Copyright 12B.04[B][3]; see also BWP Media USA Inc., 115 F. Supp. 3d at 402 (citing Nimmer on Copyright).

12 As discussed below, in an effort to assess the accuracy of designations in the existing Copyright Office directory, the Office undertook a comparison of the information contained in designations in the directory against the information on service provider Web sites. In doing so, the Office also learned that it often takes a significant effort to even locate designated agent information on a service provider's Web site, and in many cases the Office was unable to locate the information at all.

13See 17 U.S.C. 512(c)(2).

Because the DMCA was effective on its date of enactment, and a procedure to enable the designation of agents needed to be in place immediately, the Copyright Office issued interim regulations governing the designation of agents to receive notifications of claimed infringement without the opportunity for a public comment period.14 While the information required to be provided by the interim regulations was originally submitted to the Office in paper hardcopy, the Office later began accepting scanned submissions of paper designations via email. Once received, the Office then scanned the filings, if necessary, and posted them to the directory on its Web site.15 This system has continued to this day.

14See 63 FR at 59233-34.

15See http://www.copyright.gov/onlinesp/.

Over time it has become clear to the Office that the designation process established under the interim regulations needs to be updated to better fulfill the objectives of section 512(c)(2). The paper designation system is inefficient and expensive for service providers, and represents a significant drain on Office resources due to the largely manual process of scanning paper designations and posting them online. Furthermore, the search capabilities of the paper-generated directory, even in its online format, are limited. To effectuate an update of the interim regulations, the Office issued a notice of proposed rulemaking on September 28, 2011 (“NPRM”) proposing a new fully-electronic system through which service providers could more efficiently designate agents and maintain service provider and agent information with the Copyright Office, and the public could more easily search for agents in an online directory.16 At the time of the NPRM, the Office also expressed concern that a sizable portion of the designations in the paper-generated directory appeared to be outdated or for defunct service providers. The Office had examined a small random sampling of designations from the directory, which revealed that a number of existing designations were associated with businesses that had ceased operations.17 Thus, although the interim regulations required a service provider that ceased operations to notify the Copyright Office of such,18 it seemed that few actually did so.19 The Office also noted that although it was unable to “discern the precise percentage of designations that contain outdated information, the number of amended designations that the Office does receive suggests that many designations are probably outdated.” 20

16See 76 FR 59953 (Sept. 28, 2011).

17 76 FR at 59954.

18 37 CFR 201.38(g) (“If a service provider terminates its operations, the entity shall notify the Copyright Office by certified or registered mail.”).

19 76 FR at 59954.

20Id.

In 2013, the Department of Commerce's Internet Policy Task Force 21 reiterated concerns regarding the accuracy of the Office's existing directory in a paper addressing various issues involving copyright and new technologies. Relying on an industry study, the Task Force found that “the database is not current and reliable.” 22

21 The Internet Policy Task Force is a group comprised of various Commerce Department bureaus, including the United States Patent and Trademark Office, the National Telecommunications and Information Administration, the International Trade Administration, the National Institute of Standards and Technology, and the Economic and Statistics Administration. Department of Commerce Internet Policy Task Force, Copyright Policy, Creativity, and Innovation in the Digital Economy, at i (2013).

22Id. at 59 & n.317 (citing a study by the Software & Information Industry Association finding that “nearly half” of emails sent to a sample of designated agents listed in the Office's directory “were returned as undeliverable” and that “[o]f those that were deliverable, many went without a response”).

More recently, to confirm the NPRM's initial assessment of the quality of the information in the current designated agent directory, the Office examined a larger sampling of 500 existing paper designations and found that approximately 70% either had inaccurate information or were for defunct service providers. Specifically, 110 (22%) appeared to be for defunct service providers.23 For the remaining, non-defunct service providers, to determine whether a service provider's designation contained inaccurate or outdated information, the Office compared the information provided in the paper designation to the information the service provider currently provides on its own Web site. As noted above, the DMCA requires a service provider to maintain the same information both on its Web site and at the Copyright Office. Where there is a discrepancy between these sources, it is fair to assume that the information in the Copyright Office's directory, rather than the information on the service provider's own Web site, is out of date, as service providers are more likely to update their own Web sites on a regular basis.

23 This figure aligns with the estimate made by the Office in calculating the appropriate fee for the new system. In the Office's May 25, 2016 notice proposing the specific fee for designating agents through the new electronic system, the Office estimated that defunct service providers constituted 15-25% of all current designations. See 81 FR 33153, 33154 (May 25, 2016). The category of defunct service providers includes service providers that have merged with another service provider. In such cases, the Web properties previously owned by the first service provider may still exist, but that service provider itself no longer exists as a going concern.

Accordingly, for each of the 390 non-defunct service providers in the sample, the Office assessed whether the telephone number, physical mail address, and email address listed for the designated agent in the Office's directory matched the contact information on the service provider's Web site. The Office found that the Web sites for 20 service providers did not appear to contain any contact information whatsoever. Although these service providers' failure to provide designated agent information on their Web sites renders them ineligible for the section 512 safe harbors, that failure also meant that the Office could not ascertain the accuracy of the designations in the Office's directory one way or the other, because there was no information against which to compare. This left the Office with a sample of 370 service providers that had at least some of the required contact information on their Web sites that the Office could use to compare against the paper designations filed with the Office.24 Out of these 370 designations, 241 (approximately 65%) were out of date, as evidenced by the fact that one or more of the telephone number, physical mail address, or email address listed for a designated agent did not match the contact information on the corresponding service provider's Web site.25

24 The Office notes that a number of even these service providers did not provide all three pieces of information contemplated by the statute—the telephone number, physical mail address, and email address for the designated agent—on their Web sites, instead providing only one or two. In those cases, the Office used whichever piece(s) of contact information that the service provider supplied on the Web site to compare against the information in the Office's directory. If that information matched, the Office counted the service's provider's designation as accurate and current.

25 This figure includes Web sites that provided contact information explicitly for a DMCA designated agent as well as Web sites that only provided general contact information for the site. To break this number down further: The Office found that for approximately 56% of the designations corresponding to Web sites with contact information specifically for a designated agent, one or more of the telephone number, physical mail address, or email address listed for a designated agent did not match the contact information on the corresponding service provider's Web site. For service providers with Web sites that only provided general contact information that did not specifically reference a designated agent, this figure was approximately 84%.

As this analysis shows, the apparent volume of designations in the Office's directory belonging to defunct service providers or containing inaccurate information is extremely high. These findings are particularly concerning because they show that service providers might unwittingly be losing the protection of the safe harbors in section 512 by forgetting to maintain complete, accurate, and up-to-date information with the Copyright Office. These findings are also concerning because the directory in many cases would seem to be an unreliable resource, at best, to identify or obtain contact information for a particular service provider's designated agent.

Though the Office did not yet know the full extent of the inaccuracy of the current directory, the Office issued the NPRM with these general concerns of accuracy, cost, and efficiency in mind. In addition to describing the proposed electronic system, the NPRM sought public comment on modified regulations that would govern the submission and updating of information relating to designated agents through such proposed system.26 In response to the NPRM, the Office received comments from trade organizations and others representing the interests of internet service providers and copyright owners.27

26See 76 FR at 59953.

27 Computer & Commc'ns Indus. Ass'n, Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (“CCIA Initial”); Elec. Frontier Found., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“EFF Initial”); Google Inc., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“Google Initial”); Google Inc., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Dec. 27, 2011) (“Google Reply”); Internet Commerce Coal., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“ICC Initial”); Matthew Neco, Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (“Neco Initial”); Microsoft Corp., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“Microsoft Initial”); MiMTiD Corp., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“MiMTiD Initial”); Motion Picture Ass'n of Am., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 23, 2011) (“MPAA Initial”); Org. for the Promotion and Advancement of Small Telecomms. Cos., Nat'l Telecomms. Coop. Ass'n, Am. Cable Ass'n, Indep. Tel. & Telecomms. Alliance, W. Telecomms. Alliance, Rural Indep. Competitive All., Joint Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“Telecomm Parties Initial”); Pub. Knowledge, Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“Public Knowledge Initial”); Recording Indus. Ass'n of Am., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (“RIAA Initial”); Verizon Commc'ns Inc., Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (“Verizon Initial”).

To effectuate the system described in the NPRM, the Library of Congress authorized the necessary software development effort through its Information and Technology Services unit (now called the Office of the Chief Information Officer). Over the past year, the Library has committed development resources to this effort and it is now anticipated that the new electronic system to register designated agents with the Office will be launched on December 1, 2016.

As the software development effort was reaching its final stages, the Office on May 25, 2016 issued a notice of proposed rulemaking to lower the fee for designating an agent through the new system (“Fee NPRM”).28 The Fee NPRM proposed reducing the current fee of $105, plus an additional fee of $35 for each group of one to ten alternate names used by the service provider, to a flat fee of $6 per designation—whether registering a new designation, or amending or resubmitting a previously registered designation.29 The Office solicited comments on the proposed change in fees and received a number of comments in response.30

28 Designation of Agent To Receive Notification of Claimed Infringement, 81 FR 33153 (May 25, 2016).

29Id. at 33154.

30 Ass'n of Am. Publishers, Comments Submitted in Response to U.S. Copyright Office's May 25, 2016 Notice of Proposed Rulemaking (June 24, 2016) (“AAP Fee”); Computer & Commc'ns Indus. Ass'n, Comments Submitted in Response to U.S. Copyright Office's May 25, 2016 Notice of Proposed Rulemaking (June 23, 2016) (“CCIA Fee”); Elec. Frontier Found. et al., Comments Submitted in Response to U.S. Copyright Office's May 25, 2016 Notice of Proposed Rulemaking (June 24, 2016) (“EFF Fee”); Internet Ass'n, Comments Submitted in Response to U.S. Copyright Office's May 25, 2016 Notice of Proposed Rulemaking (“IA Fee”).

Having reviewed and carefully considered all of the public comments received in response to the NPRM and the Fee NPRM, the Copyright Office now issues a final rule, effective as of the implementation of the new electronic system on December 1, 2016, governing the designation of agents to receive notifications of claimed infringement with the Office pursuant to 17 U.S.C. 512(c)(2), including associated fees. The Register's authority to implement such system and promulgate these regulations governing the designation of agents and the use and operation of the electronic system derive directly from section 512(c)(2), which explicitly permits the Register to require service providers to supply “contact information which [she] may deem appropriate” and expressly requires the Register to “maintain a current directory of agents available to the public.” 31 In addition, the Copyright Act gives the Register general authority to “establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title.” 32 Sections 512 and 702 together necessarily authorize such regulations as the Register may deem appropriate to ensure both a “current directory” and that the registration system and directory are acceptably “maintain[ed]” for continued usability. As noted, the purpose of the directory is “[t]o facilitate easy access to the identity of all designated agents” for public use,33 and the rule announced today serves this end by establishing an electronic system that makes it easier for the public to more effectively find current and accurate designated agent contact information.

31 17 U.S.C. 512(c)(2).

32Id. at 702.

33See 4 Nimmer on Copyright 12B.04[B][3].

II. Discussion

The new electronic system to designate agents with the Copyright Office pursuant to 17 U.S.C. 512(c)(2) will fully replace the paper-based system implemented through the interim regulations adopted in 1998. Beginning December 1, 2016, a service provider must use the online registration system to electronically submit service provider and designated agent information to the Copyright Office. Accordingly, as of December 1, 2016, the Office will no longer accept paper designations.

The comments received in response to the NPRM and Fee NPRM indicate widespread support for the creation of an electronic registration system,34 with no commenter suggesting that the paper system should be retained. Indeed, given that online service providers, by definition, operate in an online environment, an electronic-only designation procedure is not only logical but should pose no special burden for service providers. In addition, the electronic system significantly increases the administrative efficiency of the designation process, resulting in a dramatic reduction of costs to the Office and, therefore, in the filing fees to be charged to the service provider community. Such a system also better ensures that service providers will be supplying and maintaining accurate information with the Office by making it easier and cheaper to update designations. The system includes automatic checks to confirm that the requisite information is being provided and will verify certain types of submitted data. Moreover, the electronic registration system seamlessly integrates with the online directory, making it quicker and easier for the public to find a service provider's current designation.

34See, e.g., AAP Fee at 1-2; IA Fee at 2; ICC Initial at 1; Microsoft Initial at 2; MPAA Initial at 1; Public Knowledge Initial at 1.

As detailed above, the Copyright Office has confirmed that a substantial amount of the designated agent information currently listed in the Office's directory is inaccurate or out of date. To ensure that the new electronic directory is accurate and up to date, all service providers seeking to comply with 17 U.S.C. 512(c)(2), including those that have previously designated an agent using the paper process under the Office's interim regulations, are required to submit new designations through the electronic system by December 31, 2017. Moreover, the Office made clear that “[i]nterim designations filed pursuant to these interim regulations will be valid until the effective date of the final regulations. At that time, service providers wishing to invoke section 512(c)(2) will have to file new designations that satisfy the requirements of the final regulations, which will include the payment of the fee required under the final regulations.” 35

35 63 FR at 59234.

While service providers must file new designations in the electronic system, they will have over a year to do so. Previously filed paper designations will continue to satisfy the service provider's statutory obligations under section 512(c)(2) until the service provider registers electronically, or through December 31, 2017, whichever occurs earlier. For a further discussion of this aspect of the final rule, including responses to public comments, see “Phaseout of Paper Directory and Requirement to Register in Electronic Directory” below.

As under the old system, service providers will be required to keep their designations current and accurate by timely updating information in the system when it has changed (i.e., “amending” their designations). Additionally, to help ensure that designations in fact remain current and accurate, a service provider's designation will expire and become invalid three years after it is registered with the Office, unless the service provider renews such designation by either amending it to correct or update all relevant information or resubmitting it without amendment to confirm the designation's continued accuracy. This constitutes the requirement to periodically “renew” a designation. Either amending or resubmitting a designation, as appropriate, through the online system begins a new three-year period before such designation must be renewed. The new system, which will include automated reminders to service providers to review and renew their designations, is designed to encourage effective compliance with the requirements of section 512(c)(2). It will also better serve the public by helping to ensure that service providers maintain current information about their designated agents, including up-to-date contact information, on file with the Copyright Office, as Congress intended. For a further discussion of these aspects of the final rule, including responses to public comments, see “Amending and Renewing a Designation” below.

A. Registering a Service Provider and Designated Agent

Creating a Registration Account. In order to access the online registration system, a service provider must establish an account that will be used to log into the system and register itself and its designated agent. There is no charge to establish a registration account. Registration of any designation with the Office, including any subsequent amendment or resubmission (see “Amending and Renewing a Designation” below) must be made through such an account. To set up a registration account, the service provider must select a login ID and password, and provide the first name, last name, position or title, organization, physical mail address, telephone number, and email address of two representatives of the service provider who will serve as primary and secondary points of contact for purposes of communications with the Copyright Office. These representatives will receive automated confirmation emails generated by the system and correspondence from the Office, such as notices that a designation needs to be renewed and other communications about the system or account. The Office may also contact these individuals if there are any questions about the designation or registration account. These individuals' identities and contact information will not be made publicly available in the online directory and are not required to be listed on service provider Web sites, as the Office is requiring this information pursuant to the Register's statutory authority to “maintain” the directory, not under her authority to require additional contact information for inclusion in a service provider's designation.36 The Office's ability to communicate with these individuals is essential to the functioning and continued usability of the registration system and directory.

36See 17 U.S.C. 512(c)(2) (“The Register of Copyrights shall maintain a current directory of agents available to the public. . . .”) (emphasis added).

The Office notes that one commenting party asked that an email address for the individual who actually registered the designation be made available in the public directory.37 The Office declines to adopt this suggestion, as it is not apparent how this information would further the statutory purpose of the directory, which is to ensure that copyright owners can send notifications of claimed infringement to the designated agent of a service provider (rather than the individual who may have registered that agent).

37 RIAA Initial at 2.

In the NPRM, the Office mentioned its willingness to consider allowing a service provider to delegate responsibility for managing the registration process or otherwise administering its account to a third-party entity.38 The Office noted a potential concern with the accuracy of the required information if the information is not supplied by the service provider itself.39 Only one commenter echoed this concern, suggesting that a third party might also fail to follow the directions of the service provider.40 Other commenters disagreed with that view, arguing that delegation to third parties is more efficient and would be particularly helpful to smaller service providers with minimal staffing.41 They explained that third-party firms that provide assistance to service providers have developed the expertise to accurately and efficiently comply with regulatory requirements.42 Furthermore, they contended that third parties have every incentive to be accurate so as to establish a positive reputation to retain and grow their client base.43

38 76 FR at 59954.

39Id.

40 RIAA Initial at 1.

41See, e.g., Microsoft Initial at 1-2; MPAA Initial at 3-4; Telecomm Parties Initial at 3.

42 Telecomm Parties Initial at 3.

43Id.

After considering these competing comments, the Office finds no compelling reason to deny a service provider the option of hiring a third party to manage its designation on its behalf, so long as the service provider is willing to accept the risk that it could lose the safe harbor protections of section 512 if such third party fails to provide accurate information and maintain an up-to-date designation at the Copyright Office. In light of this conclusion, the electronic system has been designed to facilitate third-party management of service provider designations. In particular, a single registrant is able to use a single account to designate agents (and amend and resubmit designations) for multiple service providers.

Registering a New Designation. Once a registration account has been created, an authorized user can log into the account to register a service provider's designation with the Office by providing the information requested by the system, which is described in detail in the section below, “Information Required for Service Providers and Designated Agents.”

Related Service Providers. An issue that the Office considered in designing the new system was whether related or affiliated service providers that are separate legal entities (e.g., parent and subsidiary companies) should be permitted to file a single, joint designation.44 Under the interim regulations, related companies were deemed to be separate service providers and thus required to file separate designations. The Office has received occasional complaints from service providers about the inefficiency of this practice. The NPRM noted the Office's receptiveness to allowing joint designations, but also discussed some of the difficulties it could pose.45 Many commenters favored allowing joint designation of related service providers, perceiving it as more efficient and less costly.46 One commenter opposed it, stating that the directory's accuracy would be better preserved by continuing to require separate designations.47

44 76 FR at 59958.

45Id.

46See, e.g., CCIA Initial at 1; ICC Initial at 5-6; Microsoft Initial at 4; MPAA Initial at 11; Telecomm Parties Initial at 4-5; Verizon Initial at 1.

47 RIAA Initial at 4.

After reviewing the comments and working with the Library's software development team, the Office has concluded that permitting joint designations as originally conceived in the NPRM would needlessly complicate the online registration system and would also require a significantly more complex and costly development effort. As explained above, the Office has designed the system so that a single account user can register and manage designations for multiple service providers. Thus, a parent company can manage the designations of all of its subsidiaries through one central account should it so choose. The ability of a single registrant to manage multiple designations, combined with the modest fee for registration, set at $6 (see “Fees” below), should largely address the concerns that would have been addressed by permitting joint designations. Accordingly, under the final rule, as under the interim rule, related or affiliated service providers that are separate legal entities are considered separate service providers, and each must have its own separate designation.

B. Information Required for Service Providers and Designated Agents

The Office has determined that the information required from service providers through the online registration system will remain, for the most part, the same as has been required under the interim regulations. A service provider is required to supply its full legal name, physical street address (not a post office box), telephone number, email address, any alternate names used by the service provider, and the name, organization, physical mail address, telephone number, and email address 48 of its designated agent. These requirements are described in more detail below. Although the system requires contact information for the service provider, the designated agent, and the primary and secondary contacts for the registration account, the Office notes that the same person may serve in multiple roles so long as the primary and secondary contacts associated with the registration account are different people.

48 The NPRM noted concerns that had previously been expressed to the Office about displaying email addresses on the Office's Web site, and noted that some had suggested that the Office should display email addresses in a format that could not easily be harvested by automated software and used for spamming purposes (e.g., “userid at domain dot com”). 76 FR at 59956-57. However, no commenter recommended adoption of this suggestion, and instead the system will display traditionally formatted email addresses (e.g.,[email protected]”).

Service Provider's Identity and Alternate Names. The NPRM provided that in addition to the legal name of the service provider, the Office would require a service provider to list any alternate names under which it is doing business (as required under the interim regulations), including any names that the service provider would expect members of the public to be likely to use to search the directory for the service provider's designated agent.49 The NPRM explained that such names should enable a copyright owner to identify the service provider and its designated agent.50

49 76 FR at 59959.

50Id. at 59957.

The Office has modified this provision to clarify that the requirement to provide alternate names is not limited solely to names under which a service provider is doing business, such as a “d/b/a” name. Rather, service providers must list all alternate names that the public would be likely to use to search for the service provider's designated agent in the directory, including all names under which the service provider is doing business, Web site names and addresses (i.e., URLs, such as “_.com” or “_.org”), software application names, and other commonly used names. The purpose of this requirement is to identify the service provider sufficiently so that the public can locate the service provider's designated agent information in the directory.51

51 The Office declines to adopt the Recording Industry Association of America (“RIAA”)'s suggestion to require service providers to disclose any shareholders or related groups of shareholders with a majority ownership of the service provider and any persons or entities with a controlling interest in or decisionmaking power over the service provider. See RIAA Initial at 3; see also Google Reply at 2 (arguing that such a requirement has no basis in the statute). The Office does not at this time see sufficient justification to burden service providers with such an additional requirement.

Separate legal entities, however—such as corporate parents or subsidiaries—are not considered alternate names. As noted above, each separate legal entity must have its own separately registered designation (though such separate designations may be managed by a single user through a single registration account).

Some commenters noted that it could be burdensome to list all of a service provider's Web sites in the system.52 The Office does not believe that such a requirement is unduly onerous, especially when weighed against the benefits of allowing the public to search the directory using Web site names or addresses rather than the corporate names of service providers, which may not be well known. But to facilitate compliance with the alternate names requirement, the system is designed to allow names to be uploaded in bulk using an Excel spreadsheet, in addition to being entered one at a time. Once entered or uploaded, the list can be modified as necessary to reflect new and/or discontinued names. These factors should significantly diminish any potential burden associated with providing alternate names.

52See, e.g., Public Knowledge Initial at 12-13 (“[T]he Copyright Office can require service providers to list their domain names as separate fields in the agent designation form. . . . However, even this may result in too burdensome amendment requirements for providers that frequently obtain new domain names, even if those amendments do not make the service provider actually easier to find by a copyright owner.”); see also Microsoft Initial at 3-4; MPAA Initial at 11-12.

Contact Information for the Service Provider. As under the interim regulations and proposed in the NPRM, the Office is continuing to require service providers to supply a physical mail address, pursuant to the Register's authority under section 512(c)(2) to require any additional contact information the Register deems appropriate. As under the interim regulations, a service provider's physical mail address will continue to be made public through the online directory and remains part of the information that a service provider is required to display on its Web site. Furthermore, as the NPRM proposed, the Office is requiring that the physical mail address be a street address, and not a post office box. The rationale for this requirement is that there are circumstances where it is important for a copyright owners to be able to physically locate the service provider (e.g., for accurate identification of the service provider or to serve a legal notice).53 Two commenters supported this aspect of the proposal,54 and none objected.55

53 Although the Office is requiring a street address for the service provider, the Office declines to adopt RIAA's suggestion to require proof of this address. See RIAA Initial at 4. RIAA asserted that a significant problem facing copyright owners is that information provided by service providers is not accurate and the information cannot be used to locate the service provider to serve a subpoena. Id. While the Office is sympathetic to this concern, the Office believes that the new renewal requirement should largely resolve this issue.

54See MPAA Initial at 10; Google Initial at 2 (explaining that “all of” the NPRM's proposed clarifications concerning contact information for service providers “appear sound”).

55 Although some commenters argued in favor of permitting designated agents to provide a post office box in lieu of a street address, none objected to requiring service providers to provide a street address. See, e.g., CCIA Initial at 1-2; ICC Initial at 6; Google Reply at 2. The Office notes that, in rare situations, the requirement to provide a street address could raise safety or security concerns for an individual who is operating the service. The final rule thus provides a mechanism to submit a written request for a waiver of the prohibition on post office boxes in exceptional circumstances. If the request is approved, the service provider may display the post office box address on its Web site and will receive instructions from the Office on how to complete the Office's electronic registration process. Upon successful completion of the registration process in accordance with the Office's instructions, the registered designation will not be considered invalid due to any failure to comply with the service provider address requirement, and the Office will override the system to insert the post office box as the service provider's address.

In addition, pursuant to the Register's separate authority to issue regulations necessary to “maintain” the public directory, the Office is now also requiring service providers to provide a telephone number and email address, solely for use by the Office for administrative purposes essential to the functioning and continued usability of the registration system and directory—for example, to send system confirmations, renewal reminders, or other notices about its designation or the system itself.56 A service provider's telephone number and email address will not be shown in the public directory, and are not required to be displayed on the service provider's Web site.

56 Though the NPRM only proposed requiring an email address, the Office is now requesting a telephone number as well as an alternative and more expedient method for the Office to communicate directly with service providers, if necessary.

Agent's Identity. Section 512(c)(2)(A) specifies that to invoke the limitation of liability provided under subsection (c), the service provider must provide “the name, address, phone number, and electronic mail address of the agent.” Under the interim regulations, the Office initially required the service provider to provide the name of a natural person to act as the service provider's designated agent. As a result of concerns that personnel changes could inadvertently render the designation of a natural person obsolete, however, the Office has subsequently allowed service providers to designate a specific position or a particular title (e.g., “Copyright Manager”), rather than an individually named person, as its agent.57

57 This expansion was a matter of internal practice as the interim rule has always required the “name of the agent.” See 37 CFR 201.38(c)(3).

The NPRM proposed continuation of the practice of allowing service providers to designate an agent either by name or by position or title.58 The NPRM also stated, however, that the Office was not inclined to permit a service provider to designate an entity generally (e.g., a law firm or copyright management agency).59 The Office expressed concern that notices of claimed infringement addressed to a general entity, rather than a natural person or specific title, might be overlooked or not attended to in a timely fashion, and that this concern is reduced when a service provider designates a specific position or title at an entity or a natural person as its agent, particularly when that role is associated with a specific email address.60 The NPRM further proposed, however, that service providers be permitted to designate an agent either within the service provider's organization itself or at an unrelated third party.61

58 76 FR at 59957.

59Id.

60Id.

61Id. The NPRM also stated that the Office was not inclined to permit the designation of multiple agents, as doing so would unjustifiably complicate the statutory process. Id. All commenters seemed to agree with this. See, e.g., MPAA Initial at 10; RIAA Initial at 3.

There was widespread support among commenters for maintaining the Office's current practice of allowing service providers to designate agents by position or title rather than an individual's proper name, both to address the problem of personnel changes and to avoid misuse of personal information.62 Moreover, none of the commenters opposed the Office's position that an employee of either the service provider or a third party could serve as a designated agent.63 There was debate, however, concerning whether it would be appropriate to name a third-party entity as a whole (e.g., a law firm or copyright management agency) as an agent. One trade organization representing copyright owners was against it, arguing that it would increase the likelihood that notices are not handled expeditiously and further complicate the ability of rights holders to efficiently contact the individual responsible when there are failures to act on notices, to follow up on the handling of notices, or to take other action.64 But Public Knowledge, a public advocacy organization, urged the Office to allow designation of third-party entities as a whole, noting that regardless of whether the designated agent is a person, title, or entity, it does not change the service provider's obligation to respond to notices expeditiously.65 Public Knowledge further contended that section 512 does not limit designations to specifically identifiable persons, and that at least one federal court has suggested that designating an entire department as an agent satisfies the statute.66

62See, e.g., Google Initial at 2; Microsoft Initial at 3; MPAA Initial at 9-10; Telecomm Parties Initial at 4. Only RIAA seemed to oppose this, suggesting that the best way to ensure notices reach live persons is to require that they be sent to an email address for which a particular employee has responsibility. RIAA Initial at 3.

63Cf. MPAA Initial at 10 (supporting concept of allowing service provider employees or third parties to serve as designated agents).

64 MPAA Initial at 9.

65 Public Knowledge Initial at 9-11.

66Id. at 9-10 (citing Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1092 n.13 (C.D. Cal. 2001)).

After considering the comments and reevaluating its initial inclination with respect to the naming of an individual or position versus a department or entity as a whole to serve as a designated agent, the Office has concluded that any one of these appears to be a reasonable interpretation of the statute. The Office believes, contrary to its initial inclination, that the sounder policy is to allow a service provider to designate as its agent an individual (e.g., “Jane Doe”), a specific position or title held by an individual (e.g., “Copyright Manager”), a specific department within the service provider's organization or within a third-party entity (e.g., “Copyright Compliance Department”), or a third-party entity generally (e.g., “ACME Takedown Service”). The Office agrees with the point made by Public Knowledge that service providers are already obligated by statute to respond “expeditiously” to take down requests; this is true whether they rely on a particular individual, a corporate department, or a third-party entity to process their notices. The Office is also cognizant of the current realities of the notice-and-takedown system, where some large service providers now receive millions of takedown requests per day, making a requirement that a designated agent be a single person simply infeasible.67 Indeed, the designation of a single person to receive all takedown requests for further processing by others would not allay the Office's original concerns of overlooked notices and untimely action, but might well work against the efficient processing of such requests.68

67See, e.g., Chris Welch, Google received over 75 million copyright takedown requests in February, VERGE (Mar. 7, 2016), http://www.theverge.com/2016/3/7/11172516/google-takedown-requests-75-million (stating that Google received over 75 million DMCA takedown requests in a single month and that “Google is effectively processing over 100,000 URLs per hour”).

68 RIAA also urged the Office to require a service provider's designated agent to accept service of process on behalf of the service provider. RIAA Initial at 3. Google opposed this, stating that RIAA's request has no basis in the statute and is contrary to its purpose of providing an expeditious, nonjudicial way of removing infringing material. Google Reply at 1-2. The Office declines to adopt RIAA's suggestion; requiring designated agents to accept service of process appears to go beyond the main purpose of the statute.

The Copyright Office emphasizes, however, that these changes to the rule are in no way intended to excuse the loss or mishandling of notices addressed to departments or entities rather than individuals, or to otherwise absolve service providers from their statutory responsibility to “respond[ ] expeditiously” to notices of claimed infringement.69 Rather, it is the Office's hope that by making these practical accommodations—which may be especially useful for service providers that receive large volumes of notices—the rule will in fact enable greater attention to notices and faster response times.

69See 17 U.S.C. 512(c)(1)(C).

Contact Information for the Designated Agent. In addition to the agent's identity, the amended regulations continue to require a designated agent's physical mail address, telephone number, and email address.70 Section 512(c)(2)(A) requires this information to be supplied to the Copyright Office and also to appear on the service provider's Web site. The interim rule's requirement of a facsimile number, however, is being discontinued due to the fact that faxing has become a relatively obsolete technology.

70See id. at 512(c)(2)(A). Microsoft requested that in addition to this basic information, the Office include an optional field in the online system to permit service providers to designate a particular Web site location linking to the service provider's designated agent contact information or to additional information or online tools to use a service provider's specific process for receiving notices of claimed infringement. Microsoft Initial at 3-4. While service providers have the option of suggesting the use of specific procedures on their Web site (in addition to providing contact information for a designated agent as required under section 512(c)(2)), the Office declines to adopt Microsoft's suggestion at this time. The Office notes that no other commenter addressed this proposal, and the Office has insufficient information at this time to determine whether such a proposal should be adopted.

Because an individual serving as a designated agent may be located outside of the service provider's organization, the Office is now also requiring that the designated agent's organization be identified, when applicable. If the designated agent is an individual, a position or title, or a department within a service provider, the agent's organization would simply be the service provider. If the agent is an individual, position or title, or a department at a third-party entity, the agent's organization would be the legal name of that third-party entity. If the agent is a third-party entity as a whole, then the name of the agent and the organization fields should have the same information. If the agent is an individual acting outside of the context of any organization, the field can be marked “None” or “N/A.”

The NPRM proposed permitting post office boxes to serve as a designated agent's address due to concerns about agents' privacy and safety, particularly where an agent's only address is a home address.71 A number of commenters echoed these concerns.72 Others argued that the agent is a public-facing position and rightsholders need to be able to contact the agent directly to report claims of infringement, including by street address if telephone and email efforts prove insufficient.73 They further claimed that using a post office box provides a layer of anonymity that is not warranted, and that requiring a street address better ensures that the agent is a real person and the information provided in the designation is reliable.74

71 76 FR at 59958.

72See, e.g., CCIA Initial at 1-2; ICC Initial at 6; Google Reply at 2.

73See, e.g., MPAA Initial at 10; RIAA Initial at 4.

74See, e.g., MPAA Initial at 10; RIAA Initial at 4. RIAA also asserted that where the agent is an individual with only a home address, the individual is either the sole owner of the service provider (in which case he or she must supply his or her physical address anyway as part of the service provider contact information) or an employee or consultant of a very small company with no central office. RIAA argued that in these situations, the need to supply a physical address will underscore the importance of responding to notices. RIAA Initial at 4.

After weighing these conflicting viewpoints, the Office has determined that, consistent with the proposed rule, the final rule will allow a designated agent to specify a post office box and will not require a street address. Irrespective of the safety and privacy concerns of designated agents, requiring a physical street address is unnecessary to achieve the goals of the statute. To satisfy section 512(c)(2), service providers are required to supply accurate and reliable information for their designated agents, regardless of whether their agents are using a street address or post office box. While a post office box may not be as direct of a point of contact as a street address, copyright owners may still contact the designated agent by telephone or email. Moreover, allowing use of post office boxes may actually allow for faster and more efficient processing of mailed notices. For example, a large corporate mailroom receiving a broad mix of correspondence might be slower in identifying time-sensitive notices and delivering them to the responsible person within the organization. In contrast, a post office box could be dedicated solely to the receipt of DMCA takedown requests and could be checked directly by the agent.

Signature and Attestation. The Office has eliminated the signature requirement contained in the interim rule. Because all designations in the online registration system require the creation of a user account, as well as payment via Pay.gov (operated by the U.S. Department of the Treasury) with a credit or debit card or a bank account, the system reasonably verifies and authenticates the identity of the person designating the agent (or amending or resubmitting such designation). The registration system as designed by the Library requires each account to be protected by a twelve character password, and the Pay.gov system additionally requires a credit card or bank account holder name, if a credit or debit card, a billing address and card number, and if a bank account, the account and routing numbers.

Furthermore, in designating an agent, or amending or resubmitting such designation, the online registration system requires the account user to attest both to having the authority of the service provider to take that action and to the accuracy and completeness of the information being submitted to the Office by checking a box acknowledging the user's agreement to such an attestation. The transaction cannot be completed without such attestation.75

75 More generally, existing federal law prohibits the making of any “knowingly and willfully” “materially false, fictitious, or fraudulent statement[s] or representation[s].” 18 U.S.C. 1001(a).

C. DMCA Designated Agent Directory

The new registration system described is directly tied to the public, searchable DMCA designated agent directory. Information submitted by service providers through the registration system will automatically populate in the directory, providing fast and efficient public access to designated agent information. Members of the public will be able to access the directory through the Office's Web site and can search the directory either by service provider name or alternate name to obtain contact information for a designated agent. The search results will show not only service provider names and alternate names matching the search query, but will also indicate whether the agent designation is still active.

Prior Versions of Electronic Designations. The NPRM asked for comment on whether earlier versions of electronic designations should be made available, free of charge, through the public online directory of designated agents, or whether those versions should instead be kept offline, and made available to the public only upon request to the Copyright Office.76 Some commenters argued that listing prior versions of designations could create confusion for users as to which entry is current and might result in notifications being sent to the wrong person.77 Others were concerned with the additional cost of developing this functionality.78 On the other side, some commenters asserted that having immediate access to prior versions of designations would make it easier to determine whether a service provider qualified for safe harbor protection and might also assist scholars in certain research pursuits.79 Some commenters also suggested that if prior versions are included, they be clearly marked as such or maintained in a separate part of the directory.80

76 76 FR at 59954-55.

77See, e.g., ICC Initial at 4; MPAA Initial at 5-6.

78See, e.g., ICC Initial at 4; RIAA Initial at 2.

79See, e.g., Public Knowledge Initial at 8-9; RIAA Initial at 2; see also Microsoft Initial at 3.

80See, e.g., MPAA Initial at 5-6; Public Knowledge Initial at 8-9.

Having weighed these comments, the Office has decided to make prior versions of electronic designations available in the online directory so that the public can access them immediately and free of charge. At present, the Office plans for the directory to contain prior versions going back for up to ten years. Each time a designation is amended or resubmitted, the system creates a new version of the designation. Additionally, new versions are created whenever a designation, after having expired or been terminated, is reactivated. Because the earlier records are automatically maintained by the system, there is little added cost to the Office to permit users to access this information. Such historical information may be useful, for example, in a litigation or research context.

In addition, the Office has designed the directory layout to clearly indicate whether a designation is currently active or historical, and any results from a search of the directory will initially only display the most recent version of a designation. From there, a user can then navigate to prior versions of that designation. Accordingly, there should be little confusion about the status of a particular designation. The anticipated ten-year time frame was selected due to concerns that displaying more than ten years of records could become voluminous and contain large amounts of outdated information that is simply irrelevant for the vast majority of users.81 Electronic designations filed before that ten-year period will be maintained consistent with the Office's record retention policies, and would be made available via a request for copies of records pursuant to 37 CFR 201.2.

81 The design of the system is sufficiently flexible that the ten-year period can be increased in the future if there is sufficient demand for older records.

Prior Versions of Paper Designations. For the same reasons just discussed, following the transition from the current paper-generated directory to the new electronically-generated directory (see “Phaseout of Paper Directory and Requirement to Register in Electronic Directory” below), the Office plans to continue to make the paper-generated directory available on the Office's Web site for ten years following the conclusion of the transition period. After this time, paper designations filed pursuant to the interim regulations will be maintained consistent with the Office's record retention policies, and made available via a request for copies of records pursuant to 37 CFR 201.2.

D. Amending and Renewing a Designation

Amending a Designation. It is prudent for service providers to keep the information in their designations, both on their Web sites and with the Office, current and accurate, as courts may find that inaccurate or outdated information constitutes a failure to comply with the statutory requirements necessary for invoking the limitations on liability in section 512. The new online registration system permits a service provider to review the accuracy and currency of the information in its designation and to amend the designation at any time. The fee for amending a designation will initially be set at $6 (see “Fees” below). Upon successful receipt of payment, the system will confirm, both in the system and via email, that the designation has been updated in the public directory, and has therefore been renewed as of that date (see “Periodic Renewal of Designations” below).

Periodic Renewal of Designations. As discussed above (see “Background”), the Office has found that an extremely high number of designations in the current directory appear to contain inaccurate or outdated information, or are for defunct service providers. In order to help maintain the accuracy and utility of the online directory of designated agents made available to the public, and to ensure that service providers do not inadvertently lose the protections of the section 512 safe harbors, the NPRM proposed requiring service providers to periodically review their designations and, as necessary, update them to correct inaccurate or outdated information, or confirm their continued accuracy by resubmitting them through the online system.82 Under the proposed rule, the renewal period was two years.83 The NPRM also proposed that the online registration system would send out reminder emails ahead of the renewal deadline and explained how that process might work.84 Lastly, the NPRM proposed that a failure to renew would result in the expiration of the designation.85

82 76 FR at 59954-55.

83Id. at 59959.

84Id. at 59955.

85Id. at 59955.

A number of commenters opposed the requirement of periodic renewal.86 Opponents offered several arguments for this positon. They argued that once a service provider initially makes a valid designation, that designation should remain effective unless and until it is amended by the service provider.87 Opponents claimed that a renewal requirement is contrary to the statute because section 512 does not require service providers to take any further action so long as their designations remain accurate and up to date, and the Register is only authorized to specify additional contact information required for new designations—not to impose additional requirements on previously registered designations.88 They argued that the statute already motivates service providers to keep their designations current and accurate because failing to do so can result in a loss of safe harbor eligibility independent of compliance or noncompliance with any Copyright Office-imposed renewal requirement.89 They further stated that such situations should be adjudicated in court, and that the Office should not categorically strip service providers of safe harbor eligibility for failing to renew their designations.90

86See, e.g., CCIA Initial at 2-6; CCIA Fee at 2-7; EFF Initial at 1-3; EFF Fee at 2-5; IA Fee at 2-4; Microsoft Initial at 2-3; MPAA Initial at 4-5; Neco Initial at 1; Public Knowledge Initial at 4-8.

87See, e.g., EFF Initial at 1; EFF Fee at 2; Neco Initial at 1.

88See, e.g., CCIA Initial at 3-5; CCIA Fee at 2-3; IA Fee at 3; Public Knowledge Initial at 4-8.

89See, e.g., CCIA Initial at 3-5; CCIA Fee at 5; EFF Initial at 3; Microsoft Initial at 2-3; MPAA Initial at 4-5; Public Knowledge Initial at 4-8.

90See, e.g., EFF Initial at 3; Public Knowledge Initial at 8.

Opponents also complained that the proposed renewal requirement was an unreasonable burden, especially on smaller service providers.91 Opponents further argued that the potential loss of safe harbor protection would be a disproportionally severe consequence for a failure to renew, especially when the failure was due to inattention or clerical error rather than purposeful conduct.92 They opined that, even with an emailed reminder, a service provider might inadvertently fail to renew its designation and should not be punished for doing so.93

91See, e.g., CCIA Fee at 3-4; EFF Initial at 2-3; EFF Fee at 4; MPAA Initial at 4-5; Neco Initial at 1; Public Knowledge Initial at 5, 7-8; IA Fee at 3.

92See, e.g., CCIA Initial at 5; EFF Initial at 2; EFF Fee at 3; IA Fee at 3.

93See, e.g., Neco Initial at 1.

On the other side, trade associations representing both copyright owners and a coalition of large internet companies, including broadband providers and technology companies like Amazon, eBay and Google, agreed with the NPRM that renewal is important to address the issue of stale information and ensure the continued accuracy of the directory.94 These associations also agreed that two years is an appropriate time frame for the requirement.95 Furthermore, the Department of Commerce's Internet Policy Task Force examined this aspect of the Office's proposal and expressed no objection to it; indeed, it stated that it “support[ed] the Copyright Office's efforts.” 96

94 ICC Initial at 3-4; RIAA Initial at 2; see also Verizon Initial at 1.

95 ICC Initial at 3-4; RIAA Initial at 2.

96 Department of Commerce Internet Policy Task Force, Copyright Policy, Creativity, and Innovation in the Digital Economy 59 (2013).

Having considered the competing views of stakeholders concerning the renewal requirement—as well as its own research into the accuracy of the listings under the existing paper system without a renewal requirement—the Office concludes that in order to “maintain a current directory” of designated agents, as the Register is obligated to do under section 512(c)(2), the Office should adopt a periodic renewal requirement. That said, in view of the concerns expressed by some regarding the burden of renewal—particularly with respect to smaller entities—the Office believes it is reasonable to extend the renewal period from two years to three.

A service provider may fulfill the periodic renewal requirement by reviewing its existing designation and either amending it to correct or update information or, if the information is still accurate and no changes are necessary, simply resubmitting it through the online system without amendment—a process that should take no more than a few minutes.97 The fee to amend or resubmit a designation in connection with the renewal requirement will initially be set at $6 (see “Fees” below).

97 The Office declines to adopt the suggestion of the Motion Picture Association of America (“MPAA”) that an account user managing multiple designations be allowed to renew all of them simultaneously without having to review each designation individually. See MPAA Initial at 5. The purpose of renewal is to require a service provider that has not reviewed or updated its designation during the previous three-year period to examine the designation to make sure it is still correct. MPAA's suggestion would be contrary to that goal.

The final rule also makes clear that the three-year renewal period will be reset after a service provider either amends or resubmits its designation through the online system. To illustrate, if a service provider registers a new designation on January 1, 2017, and thereafter makes no amendment to that designation, it must renew the designation prior to January 1, 2020. But if that service provider instead amends its initial designation on March 1, 2019 to update it with new information, the three-year renewal clock is reset, and March 1, 2022 becomes the date prior to which the service provider must renew the designation.

To alleviate any concern that a service provider may accidentally forget to renew its designation during the three-year period, the online registration system will automatically generate a series of reminder emails well in advance of the renewal deadline to every email address associated with the service provider in the system (including the primary and secondary account contacts, the service provider, and the designated agent).

Should a service provider fail to renew within the allotted time, the designation will expire and become invalid, resulting in its being labeled as “terminated” in the directory. The primary and secondary account contacts, service provider, and designated agent will be notified of this. A service provider whose designation has expired, however, will be able to reactivate the expired designation by logging into the system and following the same process as a renewal (including payment of the applicable fee). Once the process is complete and payment has been successfully received, the designation will no longer be invalid and will be relabeled as “active” in the directory. Reactivation of a designation will create a new version of the designation in the historical record (see “Prior Versions of Electronic Designations” above). Thus, the directory will show a gap in time between expiration and reactivation, during which the service provider had no active designated agent listed in the Office's directory.

The Copyright Office finds the arguments made against the renewal requirement unpersuasive. First, imposition of a renewal requirement is within the authority delegated to the Office by the Copyright Act. Section 512(c)(2) not only requires service providers to maintain up-to-date information, but explicitly obligates the Register of Copyrights to “maintain a current directory of agents available to the public.” 98 The Register's obligation to maintain a “current directory” exists separate and apart from the obligations placed on service providers themselves.99 Accordingly, the Register has the authority to issue rules designed to ensure that the directory remains “current.” 100

98See 17 U.S.C. 512(c)(2) (emphasis added).

99 Indeed, an opponent of the renewal requirement, the Computer and Communications Industry Association (“CCIA”), acknowledged that Congress assigned the burden of maintaining a “current” directory to the Register. See CCIA Initial at 4.

100See 17 U.S.C. 702 (authorizing the Register to “establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title”).

Second, contrary to opponents' arguments, relying on service providers' general statutory obligation to maintain accurate designations is an inadequate means of ensuring the directory remains current. For instance, the Office's interim regulations have long obligated service providers to affirmatively notify the Office when they terminate operations.101 But, as discussed above, this obligation is not often satisfied. Moreover, as also discussed above, even as to service providers that remain in business, a significant number of designations in the existing directory are out of date or inaccurate.102

101See 37 CFR 201.38(g).

102 In the Fee NPRM, the Office estimated—for the purposes of the fee calculation—that 75% to 85% of designations in the current directory were for active service providers. 81 FR at 33154. In responding to that proposal, one commenter implied that this estimate militates against requiring periodic renewal of designations or mandatory electronic submission of previously filed paper designations, stating that “the Office itself concedes in the NPRM that the current registrations are generally accurate.” See CCIA Fee at 5. This logic is mistaken. First, it is sufficiently problematic if as many as 25% of the designations currently in the system (i.e., approximately 5,825 designations) are for service providers that are no longer in business. Second, the estimate made in the Fee NPRM does not account for the high number of inaccurate or outdated designations filed by service providers that are still in business (as previously noted above). The periodic renewal and mandatory electronic submission requirements are aimed at mitigating that problem as well.

One commenter stated that the presence of designations by defunct service providers is harmless because the public will not be searching for them.103 But there are many cases where this would not be true. For instance, as discussed in the “Conflicting Designations” section below, where one service provider is purchased by or merges with another service provider and fails to terminate its designation in the Copyright Office's directory, there could be conflicting information in the directory (e.g., duplicate entries referencing web properties that were transferred in the sale) absent some regular process to clear out inactive designations. Similar confusion could result if a defunct domain name is purchased by another entity, who then files a conflicting designation in the system. In any event, the commenter's critique ignores the high prevalence of noncompliant designations for service providers that continue to be in business.

103See CCIA Initial at 2-3; CCIA Fee at 6.

Third, with respect to the burden imposed and severity of the consequences for the failure to renew, opponents' arguments are significantly overstated. Renewal—which will initially cost a mere $6, take minutes to complete, and need only be attended to when information has changed or once every three years—should be a manageable proposition for even the smallest of service providers. Nor does the rule create “a trap for the unwary” as some opponents allege; 104 as explained above, the system is designed to send a series of reminders to all email addresses associated with a service provider, including its designated agent. If, after those multiple reminders, a service provider fails to renew its designation, it can hardly be said to have let its designation lapse unwittingly. In addition, given that service providers already routinely manage an array of other recurring obligations that are integral to their businesses—including business licenses,105 software licenses,106 trademarks,107 web hosting,108 leases on web domain names,109 real estate leases, and insurance policies—the Office cannot see how such a renewal requirement could be viewed as excessively burdensome. At the same time, such a requirement carries significant benefits both for the public and for the service providers themselves, by ensuring that up-to-date information is maintained in the system, and that information from defunct service providers is cleared out of the system.110

104See, e.g., CCIA Initial at 5; CCIA Fee at 3; MPAA Initial at 4-5.

105See, e.g., New Business Registration, S.F. Treasurer & Tax Collector, http://sftreasurer.org/registration (last visited Oct. 12, 2016) (San Francisco requires renewal every year); Business License Frequently Asked Questions, L.A. County Treasurer & Tax Collector, https://ttc.lacounty.gov/proptax/Business_License_FAQ.htm (last visited Oct. 12, 2016) (Los Angeles requires renewal every year); Frequently Asked Questions: Business Licensing, Dep't of Consumer & Reg. Aff., http://dcra.dc.gov/node/545242 (last visited Oct. 12, 2016) (District of Columbia requires renewal every two years).

106See, e.g., Comparison of Creative Cloud Plans, ADOBE, https://creative.adobe.com/plans (last visited Oct. 12, 2016) (requiring monthly or annual renewal).

107See 15 U.S.C. 1059(a) (requiring renewal every ten years).

108See, e.g., List of Web Hosting Plans, GoDaddy, https://www.godaddy.com/hosting/web-hosting-config-new.aspx?src=gs&plan=plesk_tier1_036mo (last visited Oct. 12, 2016) (requiring renewal between every three and thirty-six months depending on plan).

109See, e.g., FAQs, ICANN, https://www.icann.org/resources/pages/faqs-2014-01-21-en (last visited Oct. 12, 2016) (leases on web domain names may need to be renewed as often as every year, and at minimum must be renewed every ten years).

110 The renewal requirement is nothing like the copyright formalities referenced by commenters. See, e.g., CCIA Initial at 5; CCIA Fee at 6-7. Renewal is necessary to maintain a current and accurate directory and should in many cases actually assist service providers in retaining their safe harbor, rather than serving to deprive them of it.

Indeed, while opponents highlight the consequences of failing to comply with the renewal requirement, the fact is that opponents' preferred solution—which would rely on service providers to remember to update their information with the Copyright Office—is more likely to lead to negative consequences. Under the current regime, a service provider (particularly a smaller or less sophisticated one) might file its designation with the Copyright Office once, and easily forget to amend the designation as its information changes, sometimes years later.111 As a trade association opposing the renewal requirement correctly observed, a “failure to comply with the existing requirements [of section 512] results in the loss of service providers' safe harbor.” 112 That is not a better result for service providers.113

111 As to any argument that the system should only generate reminder notices, the Office believes that requiring service providers to actively review and either amend or resubmit their information is much more likely to lead to current and accurate information in the directory. In addition, simply sending out reminders would not help clear out defunct service providers from the system.

112 CCIA Fee at 5.

113 At the same time, the Office emphasizes that if a service provider's designated agent information changes within the three-year period before renewal is required, a service provider that wishes to remain compliant should promptly submit amended information to the Office (in addition to updating its Web site).

E. Phaseout of Paper Directory and Requirement To Register in Electronic Directory

As of the effective date of this rule, the Office will no longer accept paper designations and amendments; service providers must use the online system to submit designations. Furthermore, service providers that have previously designated agents with the Office under the interim regulations must submit new designations through the electronic system. The final rule gives service providers a generous period—until December 31, 2017—to register their designations in the online system. Previously filed paper designations will continue to be effective until the service provider has registered using the new online system or through December 31, 2017, whichever is earlier.

As discussed above (see “Prior Versions of Paper Designations” above), the Office will continue to maintain the old paper-generated directory on its Web site during the transition period and for ten years following it, in addition to the new electronically-generated directory. During the 13-month transition period—that is, through December 31, 2017—members of the public will need to search both directories for designated agent information, since a service provider may have a valid designation in either. To the extent there is a discrepancy between designations registered in the old and new systems, the information in the new directory will control. As of January 1, 2018, all paper designations will become invalid and only those designations made through the online registration system will satisfy the statutory requirement for designating an agent with the Copyright Office.

The Office is requiring service providers who have previously filed a paper designation to register in the electronic system for two principal reasons. First, as discussed above, the old paper-generated directory contains a significant amount of outdated information, including information about service providers that no longer exist. The electronic submission requirement will encourage service providers that have neglected to update their designations to provide updated information as necessary. Second, for the Office to migrate information from the old directory into the new directory would require extensive manual review and data entry, an effort that would be extraordinarily burdensome and expensive for the Office to undertake. The old directory consists of approximately 23,300 designations, all in PDF format. It would be a significant drain on the Copyright Office's limited resources to have Office personnel manually transfer information from the PDFs into the new database.114 And, after all of this effort, the end result would be a new electronic database full of obsolete and erroneous records.

114 Some commenters asked the Office to explore technological means of transferring data from the old directory automatically into the new one. See, e.g., MPAA Initial at 3; Public Knowledge Initial at 6. The paper designations, however, are not all in the same format, and some have been filled out by hand. In any event, as explained, even assuming that information could be easily transferred into the new directory, there remains the underlying problem concerning the significant amount of outdated information in the old directory.

The arguments made by commenters opposed to the requirement to re-register in the electronic system were essentially the same as those made by commenters opposed to renewals: It is burdensome, it is a trap for the unwary, it imposes potentially harsh consequences for noncompliance, and the Office lacks authority to implement it.115 But, as the, the Office made clear in its interim regulations in 1998 that “[i]nterim designations filed pursuant to these interim regulations will be valid until the effective date of the final regulations. At that time, service providers wishing to invoke section 512(c)(2) will have to file new designations that satisfy the requirements of the final regulations, which will include the payment of the fee required under the final regulations.” 116 Therefore, it was always understood that there would be a requirement to re-register upon the adoption of a final rule. Moreover, as noted, requiring electronic registration is an effective means of ensuring that the Copyright Office can fulfill its statutory duty of maintaining a “current” directory of designated agents. It is not a trap for the unwary; service providers will have over a year to submit their designations through the online process. In addition, the Office plans to engage in public outreach activities to ensure that service providers are aware of the new system and the electronic submission requirement.117

115See, e.g., CCIA Initial at 2-5; EFF Initial at 2-3; MPAA Initial at 3; Public Knowledge Initial at 3-7.

116 63 FR at 59234.

117 Again, the Department of Commerce's Internet Policy Task Force expressed no objection to this aspect of the Office's proposal, and instead stated that it “support[ed] the Copyright Office's efforts.” Department of Commerce Internet Policy Task Force, Copyright Policy, Creativity, and Innovation in the Digital Economy 59 (2013).

F. Fees

In keeping with the specific fee-setting authority in section 512(c)(2), the NPRM proposed establishing fees to designate agents.118 It also proposed continuing to charge additional fees for alternate names.119 Following the NPRM, the Office issued the Fee NPRM, which proposed reducing the current registration fee from $105 (plus an additional fee of $35 for each group of one to ten alternate names used by the service provider), to a flat fee of $6 per designation—whether registering a new designation, or amending or resubmitting a previously registered designation.120 The Fee NPRM explained that the old fee reflected the cost to the Office of receiving, reviewing, scanning, and posting the paper designations submitted by service providers, which has been a largely manual process.121 The Office believed that based on an analysis of the cost of operating and maintaining the new electronic system, the fee to designate an agent to receive a notification of claimed infringement could be much lower, and should be established at $6 per designation.122 The Office believed that an additional fee to include alternate names with a designation was not warranted because the Office did not foresee appreciable additional costs due to service provider submission of alternate names through the online process.123 The Office explained that the significantly lower proposed fee reflected the far greater efficiency of the electronic system for the Copyright Office.124

118See 76 FR at 59956.

119Id.

120 81 FR at 33154.

121Id.

122Id.

123Id.

124Id.

Although some comments filed in response to the NPRM argued against imposition of any fee, or for the imposition of a reduced fee, in certain cases,125 those particular points were not renewed in response to the Fee NPRM, likely due to the modesty of the fee adopted.126 Significantly, no commenter specifically argued against setting the fee at $6.127 In any event, the Office sees no reason to provide reduced fees or no fees for renewals, amendments, or resubmissions, which would result in needing to charge higher fees for initial designations in the new system. The Office declines to structure the fee this way, as it is fairer to impose the ongoing costs of the system on those service providers that continue to use the system, rather than requiring a higher upfront fee regardless of how long a service provider maintains a designation. Therefore, pursuant to the Register's authority under sections 512(c)(2) and 708(a) of title 17,128 and for the reasons described in the Fee NPRM, the Office adopts the $6 fee as originally proposed.

125 Some commenters argued that charging any fee for amendments would discourage timely updates to designations. See, e.g., MPAA Initial at 6-7; RIAA Initial at 2; Telecomm Parties Initial at 5. Others argued that no fee should be assessed for renewals or that fees for renewals should be less than for an initial designation. See, e.g., ICC Initial at 3-4; Verizon Initial at 1. Still others asserted that no fee should be assessed for electronic submission of designations contained in the old paper-generated directory. See, e.g., Public Knowledge Initial at 6-7.

126 Many of the arguments regarding the fee made in response to the Fee NPRM were simply vehicles to contest the requirement that service providers must re-register electronically and periodically renew their designations. See CCIA Fee at 2-7; EFF Fee at 2-5; IA Fee at 2-4. These arguments have been addressed. See “Periodic Renewal of Designations” and “Phaseout of Paper Directory and Requirement to Register in Electronic Directory” above.

127 The Office declines to adopt EFF's proposals to offer an option for service providers to make single one-time registration to remain permanently effective and to restructure the fee so that the same revenue can be collected without the renewal requirement. See EFF Fee at 2, 5. Permitting either of these would defeat the purpose of the renewal requirement, which is to ensure a current and accurate directory—not to generate funds for the Office beyond its costs. If the Office had determined that renewal was unnecessary, the fee would have been adjusted accordingly.

128See 17 U.S.C. 512(c)(2) (authorizing the Register of Copyrights to “require payment of a fee by service providers to cover the costs” of maintaining a directory of agents designated to receive notifications of claimed infringement); id. 708(a) (more generally authorizing the Register to fix fees for Office services based on the cost of providing the service).

G. Miscellaneous Issues

Conflicting Designations. As discussed in the NPRM, there is a potential concern with duplicative entries in the directory that can arise when a service provider transfers one of the Web sites it controls to another company, but fails to update its designation to remove that Web site from the list of alternate names.129 As a result, when the purchasing company registers or updates its designation with the Office and lists the purchased Web site as an alternate name, there may be conflicting entries in the public directory associated with that alternate name—one pointing to the seller's designation and the other pointing to the purchaser's designation. A similar problem can occur when a service provider itself is acquired, and the acquired service provider's designation is not terminated, either because the acquired service provider has no incentive to do so itself, or because the purchasing entity does not have access to the acquired service provider's designated agent registration account. These scenarios can create confusion if copyright owners find two different agents identified in the directory for the same Web site or same service provider.

129 76 FR at 59955-56.

The NPRM proposed two potential solutions to this problem.130 The first option was to simply allow both designations to exist in the online directory until expiration of the renewal period of the old designation; at that time, the old designation would either expire or be updated with accurate information. In the meantime, people seeking the identity of and contact information for a service provider's agent could find two inconsistent listings for the service provider's designated agent. The NPRM suggested that users could cover themselves by serving a notice of claimed infringement on both the old and the new designated agent. The second option was to include, as part of the final rule, a requirement that the seller, who has control of the existing entry in the online registration system, amend the designation or terminate it as appropriate. Commenters offered competing ideas for how best to resolve the issue of conflicting designations.131 Having weighed these comments, the Office concludes that it should not impose any requirements on a buyer or seller to update or terminate the prior designation. The Office sees no good way to enforce such a requirement, and remains disinclined to involve itself in policing the system for conflicting entries. As noted above, the Office also believes that the concern about conflicting entries is mitigated by the periodic renewal requirement, as the outdated designations will be updated or expire after three years. But to help minimize conflicting entries, the Office has designed the system to warn a registration account user if he or she attempts to register a designation for a service provider with the same name as a service provider that has already been registered in the system. The system will not, however, bar the creation of the new designation, as it is possible for two service providers to legitimately have the same name.

130Id.

131See, e.g., Microsoft Initial at 3 (supporting requiring either the seller or buyer to amend the existing designation or replace it with a new designation); MPAA Initial at 7 (opposing imposing a requirement on sellers or buyers, noting the lack of an enforcement mechanism); ICC Initial at 5 (urging that any concern is mitigated by the renewal requirement, and that sending notices to two agents in the meantime is not a significant inconvenience for copyright owners); RIAA Initial at 2 (suggesting that the system be designed to inform service providers of conflicting designations).

Purported Abuse of the DMCA Notice-and-Takedown System. Some commenters requested that the Office use this opportunity to take specific steps to address various alleged “ongoing abuses” of the DMCA notice-and-takedown system by copyright owners, such as where it is used (1) in connection with peer-to-peer file sharing activities where the material alleged to be infringed does not reside on a service provider's system or network, (2) in connection with trademark infringement, where the process does not apply, (3) in situations where material is protected by fair use, and (4) as an abusive litigation tactic in “copyright troll” lawsuits.132 They noted that such misuse significantly burdens service providers, making it more difficult to respond to legitimate notices and slowing down that process.133 They specifically asked that the Office present users of the online directory with a prominent warning and informational notice describing proper use of the notice-and-takedown process, warning against improper use, and alerting users to the potential penalties under section 512(f) for making material misrepresentations.134

132See, e.g., ICC Initial at 7-8; Verizon Initial at 2.

133See, e.g., ICC Initial at 7-8; Verizon Initial at 2.

134See, e.g., ICC Initial at 7-8; Verizon Initial at 2.

The Office believes that this rulemaking and the online directory are not the proper forums to attempt to police rights holders who send improper notices or otherwise misuse the process. The Office notes that in fact, such issues are among those currently being reviewed in the Office's pending study of section 512.135 The Office has, however, included information on the front page of the system describing the statutorily required elements for notices.

135See Section 512 Study: Notice and Request for Public Comment, 80 FR 81862 (Dec. 31, 2015).

Clarity and Readability Edits. In addition to adjustments to the NPRM's proposed regulatory language reflecting the foregoing conclusions, the Copyright Office has made additional non-substantive modifications for purposes of clarity and readability.

List of Subjects in 37 CFR Part 201

Copyright.

Final Regulations

For the reasons set forth above, the Copyright Office amends 37 CFR part 201 as follows:

PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

17 U.S.C. 702.

2. Amend § 201.3 by revising paragraph (c)(17) to read as follows:
§ 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division.

(c) * * *

Registration, recordation, and related services Fees
  • ($)
  • *         *         *         *         *         *         * (17) Designation of agent under 17 U.S.C. 512(c)(2) to receive notification of claimed infringement, or amendment or resubmission of designation 6 *         *         *         *         *         *         *
    3. Revise § 201.38 to read as follows:
    § 201.38 Designation of agent to receive notification of claimed infringement.

    (a) General. This section prescribes the rules pursuant to which service providers may designate agents to receive notifications of claimed infringement pursuant to section 512 of title 17 of the United States Code. Any service provider seeking to comply with section 512(c)(2) of the statute must:

    (1) Designate an agent by making available through its service, including on its Web site in a location accessible to the public, and by providing to the Copyright Office, the service provider and designated agent information required by paragraph (b) of this section;

    (2) Maintain the currency and accuracy of the information required by paragraph (b) both on its Web site and with the Office by timely updating such information when it has changed; and

    (3) Comply with the electronic registration requirements in paragraph (c) to designate an agent with the Office.

    (b) Information required to designate an agent. To designate an agent, a service provider must make available through its service, including on its Web site in a location accessible to the public, and provide to the Copyright Office in accordance with paragraph (c) of this section, the following information:

    (1)(i) The full legal name and physical street address of the service provider. Related or affiliated service providers that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate service providers, and each must have its own separate designation.

    (ii) A post office box may not be substituted for the street address for the service provider, except in exceptional circumstances (e.g., where there is a demonstrable threat to an individual's personal safety or security, such that it may be dangerous to publicly publish a street address where such individual can be located) and, upon written request by the service provider, the Register of Copyrights determines that the circumstances warrant a waiver of this requirement. To obtain a waiver, the service provider must send a signed letter, addressed to the “U.S. Copyright Office, Office of the General Counsel” and sent to the address for time-sensitive requests set forth in section 201.1(c)(1), containing the following information: The name of the service provider; the post office box address that the service provider wishes to use; a detailed statement providing the reasons supporting the request, with explanation of the specific threat(s) to an individual's personal safety or security; and an email address and/or physical mail address for any responsive correspondence from the Office. There is no fee associated with making this request. If the request is approved, the service provider may display the post office box address on its Web site and will receive instructions from the Office as to how to complete the Office's electronic registration process.

    (2) All alternate names that the public would be likely to use to search for the service provider's designated agent in the Copyright Office's online directory of designated agents, including all names under which the service provider is doing business, Web site names and addresses (i.e., URLs), software application names, and other commonly used names. Separate legal entities are not considered alternate names.

    (3) The name of the agent designated to receive notifications of claimed infringement and, if applicable, the name of the agent's organization. The designated agent may be an individual (e.g., “Jane Doe”), a specific position or title held by an individual (e.g., “Copyright Manager”), a specific department within the service provider's organization or within a third-party entity (e.g., “Copyright Compliance Department”), or a third-party entity generally (e.g., “ACME Takedown Service”). Only a single agent may be designated for each service provider.

    (4) The physical mail address (street address or post office box), telephone number, and email address of the agent designated to receive notifications of claimed infringement.

    (c) Electronic registration with the Copyright Office. Service providers designating an agent with the Copyright Office must do so electronically by establishing an account with and then utilizing the applicable online registration system made available through the Copyright Office's Web site. Designations, amendments, and resubmissions submitted to the Office in paper or any other form will not be accepted. All electronic registrations must adhere to the following requirements:

    (1) Registration information. All required fields in the online registration system must be completed in order for the designation to be registered with the Copyright Office. In addition to the information required by paragraph (b) of this section, the person designating the agent with the Office must provide the following for administrative purposes, and which will not be displayed in the Office's public directory and need not be displayed by the service provider on its Web site:

    (i) The first name, last name, position or title, organization, physical mail address (street address or post office box), telephone number, and email address of two representatives of the service provider who will serve as primary and secondary points of contact for communications with the Office.

    (ii) A telephone number and email address for the service provider for communications with the Office.

    (2) Attestation. For each designation and any subsequent amendment or resubmission of such designation, the person designating the agent, or amending or resubmitting such designation, must attest that:

    (i) The information provided to the Office is true, accurate, and complete to the best of his or her knowledge; and

    (ii) He or she has been given authority to make the designation, amendment, or resubmission on behalf of the service provider.

    (3) Amendment. All service providers must ensure the currency and accuracy of the information contained in designations submitted to the Office by timely updating information when it has changed. A service provider may amend a designation previously registered with the Office at any time to correct or update information.

    (4) Periodic renewal. A service provider's designation will expire and become invalid three years after it is registered with the Office, unless the service provider renews such designation by either amending it to correct or update information or resubmitting it without amendment. Either amending or resubmitting a designation, as appropriate, begins a new three-year period before such designation must be renewed.

    (d) Fees. The Copyright Office's general fee schedule, located at section 201.3 of title 37 of the Code of Federal Regulations, sets forth the applicable fee for a service provider to designate an agent with the Copyright Office to receive notifications of claimed infringement and to amend or resubmit such a designation.

    (e) Transitional provisions. (1) As of December 1, 2016, any designation of an agent pursuant to 17 U.S.C. 512(c)(2) must be made electronically through the Copyright Office's online registration system.

    (2) A service provider that has designated an agent with the Office under the previous version of this section, which was effective between November 3, 1998 and November 30, 2016, and desires to remain in compliance with section 512(c)(2) of title 17, United States Code, must submit a new designation electronically using the online registration system by December 31, 2017. Any designation not made through the online registration system will expire and become invalid after December 31, 2017.

    (3) During the period beginning with the effective date of this section, December 1, 2016, through December 31, 2017 (the “transition period”), the Copyright Office will maintain two directories of designated agents: the directory consisting of paper designations made pursuant to the prior interim regulations (the “old directory”), and the directory consisting of designations made electronically through the online registration system (the “new directory”). During the transition period, a compliant designation in either the old directory or the new directory will satisfy the service provider's obligation under section 512(c)(2) of title 17, United States Code to designate an agent with the Copyright Office.

    Dated: October 26, 2016. Karyn Temple Claggett, Acting Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress.
    [FR Doc. 2016-26257 Filed 10-31-16; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R02-OAR-2016-0161; FRL-9954-60-Region 2] Approval and Promulgation of State Plans for Designated Facilities and Pollutants; State of New York, State of New Jersey and Commonwealth of Puerto Rico; Other Solid Waste Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve the Clean Air Act (CAA) section 111(d)/129 negative declarations for the States of New York and New Jersey and the Commonwealth of Puerto Rico, for other solid waste incineration (OSWI) units. Other solid waste incineration (OSWI) unit means either a very small municipal waste combustion unit or an institutional waste incineration unit within our regulations. This negative declaration certifies that OSWI units subject to sections 111(d) and 129 of the CAA do not exist within the jurisdiction of the States of New York and New Jersey and the Commonwealth of Puerto Rico.

    The EPA is accepting the negative declaration in accordance with the requirements of the CAA.

    DATES:

    This direct final rule will be effective January 3, 2017, without further notice, unless the EPA receives adverse comment by December 1, 2016. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-OAR-2016-0161, to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make.

    The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system).

    For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, New York 10007-1866 at 212-637-3764 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to the EPA. This section provides additional information by addressing the following:

    I. Background II. Analysis of State Submittal III. Statutory and Executive Order Reviews I. Background

    The Clean Air Act (CAA) requires that state 1 regulatory agencies implement the emission guidelines and compliance times using a state plan developed under sections 111(d) and 129 of the CAA.

    1 Section 302(d) of the CAA includes the Commonwealth of Puerto Rico in the definition of the term “State.”

    The general provisions for the submittal and approval of state plans are codified in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A. section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants.

    Section 129 requires emission guidelines to be promulgated for all categories of solid waste incineration units, including OSWI units. Section 129 mandates that all plan requirements be at least as protective and restrictive as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and Title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the emission guidelines and compliance times.

    States have options other than submitting a state plan in order to fulfill their obligations under CAA sections 111(d) and 129. If a State does not have any existing OSWI units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the State (i.e., negative declaration) in lieu of a state plan.

    The negative declaration exempts the State from the requirements of subpart B that would otherwise require the submittal of a CAA section 111(d)/129 plan.

    On March 21, 2011 (76 FR 15372), the EPA established emission guidelines and compliance times for existing OSWI units. The emission guidelines and compliance times are codified at 40 CFR 60, subpart FFFF.

    In order to fulfill obligations under CAA sections 111(d) and 129, the State of New York submitted a negative declaration letter to the EPA on November 13, 2006, the State of New Jersey submitted a negative declaration letter to the EPA on April 5, 2006 and the Commonwealth of Puerto Rico submitted a negative declaration letter to the EPA on September 25, 2006.

    The submittal of these declarations exempts the State of New York, State of New Jersey and Commonwealth of Puerto Rico from the requirement to submit a state plan for existing OSWI units.

    II. Analysis of State Submittal

    In this Direct Final action, the EPA is amending part 62 to reflect receipt of the negative declaration letters from the State of New York, State of New Jersey and Commonwealth of Puerto Rico, certifying that there are no existing OSWI units subject to 40 CFR part 60, subpart FFFF, in accordance with section 111(d) of the CAA.

    The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment.

    However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the negative declaration if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a section 111(d)/129 plan submission that complies with the provisions of the Act and applicable Federal regulations. 40 CFR 62.04.

    Thus, in reviewing section 111(d)/129 plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA.

    Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.

    For that reason, this action:

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

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

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

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

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

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

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

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

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

    In addition this action does not have tribal implications as specified by Executive Order 13175 because the section 111(d)/129 plan is not approved to apply in Indian country located in the state, and EPA notes will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this section.

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2017.

    Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements, Sewage sludge incinerators.

    Dated: October 3, 2016. Judith A. Enck, Regional Administrator, Region 2.

    For the reasons stated in the preamble, EPA amends 40 CFR part 62 as set forth below:

    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 1. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart FF—New Jersey 2. Subpart FF is amended by adding an undesignated center heading and § 62.7606 to read as follows: Air Emissions From Other Solid Waste Incineration (OSWI) Units Constructed on or Before December 16, 2005
    § 62.7606 Identification of plan-negative declaration.

    Letter from New Jersey Department of Environmental Protection submitted April 5, 2006 to Alan J. Steinberg Regional Administrator EPA Region 2 certifying there are no existing OSWI units in the State of New Jersey subject to 40 CFR part 60, subpart FFFF.

    Subpart HH—New York 3. Subpart HH is amended by adding an undesignated center heading and § 62.8109 to read as follows: Air Emissions From Other Solid Waste Incineration (OSWI) Units Constructed on or Before December 16, 2005
    § 62.8109 Identification of plan-negative declaration.

    Letter from New York State Department of Environmental Conservation submitted November 13, 2006 to Alan J. Steinberg Regional Administrator EPA Region 2 certifying that there are no existing OSWI units in the State of New York subject to 40 CFR part 60, subpart FFFF.

    Subpart BBB—Puerto Rico 4. Subpart BBB is amended by adding an undesignated center heading and § 62.13110 to read as follows: Air Emissions From Other Solid Waste Incineration (OSWI) Units Constructed on or Before December 16, 2005
    § 62.13110 Identifcation of plan-negative declaration.

    Letter from Commonwealth of Puerto Rico, Office of Environmental Quality Board, September 25, 2006 to Alan Steinberg Regional Administrator EPA Region 2 certifying that there are no existing OSWI units in the Commonwealth of Puerto Rico subject to 40 CFR part 60, subpart FFFF.

    [FR Doc. 2016-26171 Filed 10-31-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 10 and 11 [PS Docket No. 15-91; PS Docket No. 15-94; FCC 16-127] Wireless Emergency Alerts; Amendments to Rules Regarding the Emergency Alert System AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) adopts revisions to Wireless Emergency Alert (WEA) rules to take advantage of the significant technological changes and improvements experienced by the mobile wireless industry since the passage of the Warning, Alert and Response Network (WARN) Act, and deployment of Wireless Emergency Alerts (WEA) to improve utility of WEA as a life-saving tool. By this action, the Commission adopts rules that will improve Alert Message content in order to help communities communicate clearly and effectively about imminent threats and local crises. It also adopts rules to meet alert originators' needs for the delivery of the Alert Messages they transmit and creates a framework that will allow emergency managers to test, exercise, and raise public awareness about WEA. Through this action, the Commission hopes to empower state and local alert originators to participate more fully in WEA, and to enhance the utility of WEA as an alerting tool.

    DATES:

    Amendments and revisions to §§ 10.280, 10.400, 10.410, 10.430, 10.510, and the addition of § 10.350(c) are effective May 1, 2019. The addition of § 10.480 is effective November 1, 2018. The addition of § 10.441 is effective November 1, 2017. Amendments to § 10.450 are effective January 3, 2017. Removal of § 10.440, and amendments to § 10.350 (section heading and introductory text), § 10.350(b), § 10.520(d), and § 11.45 are effective December 1, 2016. Section 10.320(g) contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing an effective date.

    FOR FURTHER INFORMATION CONTACT:

    James Wiley, Attorney Advisor, Public Safety and Homeland Security Bureau, at (202) 418-1678, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order in PS Docket No. 15-91, No. 15-94, FCC 16-127, released on September 29, 2016. The document is available for download at http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0929/FCC-16-127A1.pdf. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    Final Paperwork Reduction Act of 1995 Analysis

    This Report and Order adopts new or revised information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 3501-3520). The requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507 of the PRA. The Commission will publish a separate notice in the Federal Register inviting comment on the new or revised information collection requirements adopted in this document. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

    Final Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) the Commission incorporated an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the WEA NPRM (80 FR 77289, Dec. 14, 2015). No comments were filed addressing the IRFA regarding the issues raised in the WEA NPRM. Because the Commission amends the rules in this WEA Report and Order, the Commission has included this Final Regulatory Flexibility Analysis (FRFA). This present FRFA conforms to the RFA

    A. Need for, and Objectives of, the Rules

    2. Today's WEA Report and Order adopts rules to empower alert originators to participate more fully in WEA and to enhance the utility of WEA as an alerting tool. In this WEA Report and Order, we adopt rules that fall into three categories, message content, message delivery, and testing and outreach.

    3. Specifically, with respect to message content, we increase the maximum Alert Message length from 90 to 360 characters for 4G-LTE and future networks only. We classify Public Safety Messages as an Alert Message eligible to be issued in connection with any other class of Alert Message. We require Participating Commercial Mobile Service (CMS) Providers to support embedded references, and allow Participating CMS providers to include embedded references in all Alert Message types for the purpose of an industry-led pilot of this functionality. We also require Participating CMS Providers to support transmission of Spanish-language Alert Messages.

    4. With respect to message delivery, we require Participating CMS Providers to narrow their geo-targeting of Alert Messages to an area that best approximates the alert area specified by the alert originator. We require that mobile devices process and display Alert Messages concurrent with other device activity. We also require Participating CMS Providers to log Alert Messages, to maintain those logs for at least 12 months, and to make those logs available upon request.

    5. With respect to testing and outreach, we require support for State/Local WEA Tests and encourage emergency managers to engage in proficiency training exercises using alert origination software. We require periodic testing of the broadcast-based backup to the C-interface. Finally, we allow federal, state, local, tribal and territorial entities, as well as non-governmental organizations (NGOs) in coordination with such entities to issue Public Service Announcements (PSAs) aimed at raising public awareness about WEA.

    B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

    6. No commenter raised issues in response to the IRFA included in the WEA NPRM. We conclude that these mandates provide Participating CMS Providers with a sufficient measure of flexibility to account for technical and cost-related concerns. In the event that small entities face unique circumstances that restrict their ability to comply with the Commission's rules, we can address them through the waiver process. We have determined that implementing these improvements to WEA is technically feasible and the cost of implementation is small.

    C. Description and Estimate of the Number of Small Entities To Which the Rules Will Apply

    7. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    8. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 88, 506 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

    9. Wireless Telecommunications Carriers (except satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules for the category Wireless Telecommunications Carriers (except satellite) is that a business is small if it has 1,500 or fewer employees. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of fewer than 1000 employees. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small.

    10. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission initially defined a “small business” for C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For F-Block licenses, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that claimed small business status in the first two C-Block auctions. A total of 93 bidders that claimed small business status won approximately 40 percent of the 1,479 licenses in the first auction for the D, E, and F Blocks. On April 15, 1999, the Commission completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22. Of the 57 winning bidders in that auction, 48 claimed small business status and won 277 licenses.

    11. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.

    12. Narrowband Personal Communications Service. To date, two auctions of narrowband personal communications services (PCS) licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards.

    13. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions.

    14. 700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

    15. Lower 700 MHz Band Licenses. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Additionally, the lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (MSA/RSA) licenses—“entrepreneur”—which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA approved these small size standards. An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status.

    16. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order. An auction of 700 MHz licenses commenced January 24, 2008 and closed on March 18, 2008, which included, 176 Economic Area licenses in the A Block, 734 Cellular Market Area licenses in the B Block, and 176 EA licenses in the E Block. Twenty winning bidders, claiming small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years) won 49 licenses. Thirty three winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) won 325 licenses.

    17. Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the Commission revised its rules regarding Upper 700 MHz licenses. On January 24, 2008, the Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were available for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and one nationwide license in the D Block. The auction concluded on March 18, 2008, with 3 winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) and winning five licenses.

    18. Advanced Wireless Services. AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the Commission has defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. For AWS-2 and AWS-3, although we do not know for certain which entities are likely to apply for these frequencies, we note that the AWS-1 bands are comparable to those used for cellular service and personal communications service. The Commission has not yet adopted size standards for the AWS-2 or AWS-3 bands but proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS service and AWS-1 service due to the comparable capital requirements and other factors, such as issues involved in relocating incumbents and developing markets, technologies, and services.

    19. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)). In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

    20. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

    21. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we estimate that at least 2,336 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services we must, however, use the most current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2007, there were a total of 996 firms in this category that operated for the entire year. Of this total, 948 firms had annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small. In the Paging Third Report and Order, we developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small business size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. Also, according to Commission data, 365 carriers reported that they were engaged in the provision of paging and messaging services. Of those, we estimate that 360 are small, under the SBA-approved small business size standard.

    22. Wireless Communications Service. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity.

    23. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The Small Business Administration has established a size standard for this industry of 750 employees or less. Census data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 819 establishments operated with less than 500 employees. Based on this data, we conclude that a majority of manufacturers in this industry is small.

    24. Software Publishers. Since 2007 these services have been defined within the broad economic census category of Custom Computer Programming Services; that category is defined as establishments primarily engaged in writing, modifying, testing, and supporting software to meet the needs of a particular customer. The SBA has developed a small business size standard for this category, which is annual gross receipts of $25 million or less. According to data from the 2007 U.S. Census, there were 41,571 establishments engaged in this business in 2007. Of these, 40,149 had annual gross receipts of less than $10,000,000. Another 1,422 establishments had gross receipts of $10,000,000 or more. Based on this data, the Commission concludes that the majority of the businesses engaged in this industry are small.

    25. NCE and Public Broadcast Stations. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” The SBA has created a small business size standard for Television Broadcasting entities, which is: Such firms having $13 million or less in annual receipts. According to Commission staff review of the BIA Publications, Inc., Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 (twelve) million or less. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

    26. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. There are also 2,117 low power television stations (LPTV). Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.

    27. The Commission has, under SBA regulations, estimated the number of licensed NCE television stations to be 380. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    28. In the WEA Report and Order, we amend our Part 10 rules for Participating CMS Providers, as defined in the WEA rules, to require them to create and maintain logs of Alert Messages received at their Alert Gateway from FEMA IPAWS, and to make available to emergency management agencies information about the measures they take to geo-target Alert Messages transmitted by that agency.

    29. We consider compliance costs associated with the alert logging and geo-targeting disclosure rules that we adopt today to be reporting and recordkeeping costs. These costs include a one-time expense to establish the Alert Gateway logging capability for the few Participating CMS Providers that may not already have this capability, and the small, annual expense of automatically generating and maintaining alert logs, and the potentially larger expense of the employment of a clerical worker to respond to emergency management agencies' requests for alert log data or requests for information about geo-targeting. These alert logging and reporting requirements represent a somewhat more lenient version of the alert logging requirements we proposed in the WEA NPRM. To the extent these costs may still present a burden to non-nationwide Participating CMS Providers, we offer such entities an extended timeframe for compliance with our alert logging requirement in order to allow them to standardize appropriate gateway behavior and integrate any updates into their regular technology refresh cycle.

    E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    30. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its conclusions, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”

    31. The compliance requirements in this WEA Report and Order have been adjusted to accommodate the special circumstances of non-nationwide Participating CMS Providers with respect to our WEA geo-targeting requirements and our alert logging requirements. According to the Annual Competition Report, “there are four nationwide providers in the U.S. with networks that cover a majority of the population and land area of the country—Verizon Wireless, AT&T, Sprint, and T-Mobile.” Consistent with the Annual Competition Report, we refer to other providers with “networks that are limited to regional and local areas” as non-nationwide Participating CMS Providers. We allow non-nationwide Participating CMS Providers one year within which to comply with our WEA geo-targeting rules and two years to comply with our alert logging rules, instead of sixty days from the rules' publication in the Federal Register, in light of a non-nationwide Participating CMS Provider's inability to meet that standard immediately, and our concern that other non-nationwide Participating CMS Providers may be similarly situated. We believe that applying the same rules equally to all entities in this context is not necessary to alleviate potential confusion from adopting different rules for Participating CMS Providers because most consumers do not have insight into the relative accuracy of various Participating CMS Providers geo-targeting capabilities, and because alert logging is not a consumer facing service. We believe, and the record in this proceeding confirms, that the costs and/or administrative burdens associated with the rules will not unduly burden small entities, particularly in light of the special consideration we provide to them. These requirements will implicate no additional legal concerns, and will require no additional professional assistance for non-nationwide Participating CMS Providers.

    32. Based on our review of the record, we find that it is practicable for all Participating CMS Providers, including non-nationwide Participating CMS Providers, to implement WEA improvements without incurring unduly burdensome costs, especially considering the special treatment that we afford non-nationwide Participating CMS Providers. The WEA Report and Order recognizes that technical and operational issues must be addressed before compliance can be required, and allows sufficient time for nationwide and non-nationwide Participating CMS Providers to achieve compliance with today's rules.

    33. In considering the record received in response to the WEA NPRM, we examined additional alternatives to ease the burden on non-nationwide EAS Participants. These alternatives included adopting longer compliance timeframes than those initially proposed; requiring Participating CMS Providers to support WEA Alert Messages that contain only 360 characters, as opposed to 1,380, as considered by the Updated START Report; requiring support for only additional languages that are currently supported by standards, as opposed to others as initially proposed; and allowing Participating CMS Providers geo-target an Alert Message to an area that “best approximates” the target area, as opposed to one that is “no larger than” the target area using device-based geo-fencing techniques, as proposed. Additionally, the rules adopted in this WEA Report and Order are technologically neutral in order to enable small entities flexibility to comply with our rules using technologies offered by a variety of vendors. Finally, we sought further comment on some issues where the record demonstrated that it would be premature to adopt rules at this time, particularly for non-nationwide CMS Providers.

    34. Finally, in the event that small entities face unique circumstances with respect to these rules, such entities may request waiver relief from the Commission. Accordingly, we find that we have discharged our duty to consider the burdens imposed on small entities.

    F. Legal Basis

    35. The legal basis for the actions taken pursuant to this WEA Report and Order is contained in 47 U.S.C. 151, 152, 154(i) and (o), 301, 301(r), 303(v), 307, 309, 335, 403, 544(g), 606 and 615 of the Communications Act of 1934, as amended, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act.

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

    36. None

    H. Congressional Review Act

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

    Synopsis I. Report and Order

    A. Alert Message Content

    1. Increasing Maximum Alert Message Length From 90 to 360 Characters

    38. We amend Section 10.430 to expand the character limit for Alert Messages from 90 to 360 characters for 4G-LTE and future networks. A 360-character maximum Alert Message length balances emergency managers' needs to communicate more clearly with their communities with the technical limitations of CMS networks. While Hyper-Reach states that support for “1,000+” characters would be preferable because it would be consistent with the START Report's findings that messages longer than 1,380 characters produce “better outcomes for interpretation, personalization and milling, than did the standard 90-character WEA message,” this approach is not supported by the weight of the record. Beaufort County cautions, for example, that “people will stop reading” Alert Messages once they get past the second screen of text, diminishing the value of any additional characters that extend beyond that, and moreover, longer Alert Messages may contribute to distracted driving. On balance, we find that a 360-character maximum for Alert Message text “is appropriate for disseminating official, targeted, immediate, and actionable information.” We note that establishing 360 characters as the maximum character length leaves emergency managers free to issue Alert Messages that are shorter than 360 characters in appropriate situations. We defer to emergency managers' experience and best practices to determine the appropriate message length for their particular needs.

    39. We also find that expanding the maximum character length to 360 for 4G-LTE networks is technically feasible. As we observed in the WEA NPRM, CSRIC IV recommended that the Commission expand the character limit for WEA Alert Messages on 4G LTE networks to a maximum of 280 characters, pending confirmation by the Alliance for Telecommunications Industry Solutions (ATIS) that such an increase would be feasible. Not only did ATIS' feasibility study conclude that it was feasible for 4G-LTE networks to transmit 280-character WEA Alert Messages, but it found that Participating CMS Providers could transmit 360-character Alert Messages just as easily. ATIS found that transmission of WEA Alert Messages longer than 360 characters, on the other hand, would cause additional delays in the delivery of the Alert Message and could drain battery life. Commenting Participating CMS Providers and device manufacturers agree. In addition to the feasible steps that compliance with this rule will require Participating CMS Providers to take, FEMA states that the increased message length will require “software modifications to CAP message authoring tools, IPAWS OPEN, [and] the ‘C’ Interface.” We find that we can achieve our goal of expanding the maximum character limit for WEA Alert Messages on 4G-LTE networks without presenting WEA stakeholders with undue technical burdens.

    40. We also find, however, that we should continue to allow Participating CMS Providers to transmit 90-character Alert Messages on legacy networks until those networks are retired. While many public safety commenters, including APCO and Harris County OSHEM, state that it would be feasible and desirable to support 360-character Alert Messages on legacy networks by linking together (concatenating) multiple 90-character messages, we are convinced by AT&T that message concatenation would be problematic because “[m]essages are not guaranteed to be received by the device in the correct order,” which would likely cause confusion that would be exacerbated during the pendency of multiple alerts. Further, according to AT&T, concatenating 90-character Alert Messages on legacy networks would have an adverse effect on mobile device battery life. T-Mobile, Sprint and Microsoft agree that, unlike 4G-LTE networks, it would be infeasible to expand the character limit for legacy networks due to the technical limitations of those networks, and because of financial disincentives to continue to update networks that will soon be retired. The risks that public confusion and other complications would result from Alert Message concatenation are too great for public safety messaging where the potential for panic is heightened, and the consequences of misinterpretation could be deadly.

    41. Emergency managers will be free to transmit an Alert Message containing as many as 360 characters as of the rules' implementation date. FEMA IPAWS will make this possible, while also ensuring that all community members in the target area, including those on legacy networks, can receive an Alert Message, by automatically generating a 90-character Alert Message from the CAP fields of a 360-character message for distribution on legacy networks whenever an emergency manager transmits only a 360-character Alert Message. Once a CMS network is able to support 360-character messages, it will cease to receive the 90-character version, and begin to receive the full 360-character version instead. CSRIC IV and FEMA attest that this co-existence of 90- and 360-character Alert Messages is technically feasible. Indeed, FEMA IPAWS already treats Alert Messages that do not contain free-form text in this manner, and their approach is consistent with the methodology that the Participating CMS Provider Alert Gateway will use to process Alert Messages in multiple languages. For example, if FEMA IPAWS receives an Alert Message today without free-form text, it will use the CAP parameters [hazard][location][time][guidance][source] to generate Alert Message text along the lines of “Tornado Warning in this area until 6:30 p.m. Take Shelter. Check Local Media.—NWS.” The CMS Provider Alert Gateway will send the longer free-form message to devices on 4G-LTE networks, and the automatically generated 90-character Alert Message to mobile devices on legacy networks. Pursuant to the approach we adopt today, no matter how an alert originator transmits a WEA Alert Message, members of their community in the target area will receive a version of it.

    42. Increasing the maximum character length for WEA Alert Messages will produce valuable public safety benefits. Emergency managers state that the current 90-character limit is insufficient to communicate clearly with the public because 90-character Alert Messages rely on difficult-to-understand jargon and abbreviations. Expanding the character limit will reduce reliance on these potentially confusing terms and will allow emergency managers to provide their communities with information that is clear and effective at encouraging swift protective action. The value of this benefit will be increased when taken together with several of the improvements that we adopt in this Report and Order. For example, according to Jefferson Parish Emergency Management, the additional characters are necessary to adequately communicate critical information, such as shelter locations, that could prevent unnecessary loss of life and property damage. The additional characters will also support the inclusion of embedded references in Alert Messages, help facilitate message comprehension for individuals with disabilities, and will facilitate the translation of English-language Alert Messages into the Spanish language. Further, our approach to the co-existence of 90- and 360-character Alert Messages has the additional benefit of ensuring that emergency managers will be able to simply initiate one 360-character Alert Message in instances where every second counts. In sum, this action will improve the likelihood that the public will understand and properly respond to WEA Alert Messages, increasing the likelihood that WEA will save lives.

    2. Establishment of a New Alert Message Classification (Public Safety Messages)

    43. We amend Section 10.400 to create a fourth classification of Alert Message, “Public Safety Message.” The current rules only provides for three classes of WEA: (1) Presidential Alert; (2) Imminent Threat Alert; and (3) AMBER Alert. For an alert originator to issue an Alert Message using WEA, it must fall within one of these three classifications. Whereas we proposed to name this new Alert Message classification “Emergency Government Information” in the WEA NPRM, we agree with FEMA that it should be named “Public Safety Message” because the title “Emergency Government Information” is “vague and could be confusing,” and because FEMA's recommended title more accurately describes the intended message content. We define a Public Safety Message as “an essential public safety advisory that prescribes one or more actions likely to save lives and/or safeguard property,” as we proposed. By defining Public Safety Messages in this way and by tailoring their use as we describe below, we strike an appropriate balance between some commenters' requests for discretion in the use of this new Alert Message classification, and others' warnings that Public Safety Messages may be overused and contribute to alert fatigue if they are defined in an over-inclusive manner.

    44. Public Safety Messages will only be eligible for issuance in connection with an Imminent Threat Alert, an AMBER Alert, or a Presidential Alert, as recommended by AT&T, CTIA and several emergency management agencies. We do not expand the definition of an “emergency” situation in which it is appropriate to issue an Alert Message so as to avoid alert fatigue. Instead, we add a tool for emergency managers to better communicate with the public during and after emergencies, in a manner that naturally complements existing Alert Message classifications. We note that several commenters state that our new Alert Message classification should be eligible for issuance even in the absence of another Alert Message type. If we were to allow Public Safety Messages to stand alone, however, it would expand the definition of an “emergency” during which the issuance of a WEA Alert Message is appropriate, contrary to our reasoning in the WEA First Report and Order that the existing Alert Message classifications are sufficient to communicate information about “bona fide emergencies.” Further, we believe that a broader definition of an “emergency” would risk increasing alert fatigue and consumer opt out.

    45. Any entity authorized to use WEA may initiate Public Safety Messages. Some commenters state that we should limit eligibility to issue Public Safety Messages to government entities. This may be because it would not make sense for non-governmental entities to issue Alert Messages under our proposed title, “Emergency Government Information.” Moreover, we agree with the majority of emergency managers treating the issue that all entities that have completed FEMA IPAWS alert originator authorization process may send Public Safety Messages. We thus defer to FEMA, as we have done since WEA's deployment, to determine the suitability of agencies as WEA alert originators.

    46. Within this framework, we agree with commenters that the development of best practices around the use of Public Safety Messages will help ensure that this new Alert Message classification is used appropriately. NYCEM offers a number of best practices that would help inform emergency managers' determination of whether it is appropriate to send a Public Safety Message. These best practices include answering the following questions prior to initiating a Public Safety Message: “ ‘Is your emergency operations center activated?' `Has a competent, authorized party declared a state of emergency and/or are emergency orders being issued?' `Is there a need for broad public action or awareness of a condition that is occurring or likely to occur?' `Will the message prevent public fear or serve to preserve critical public safety functions that are (or could be) overwhelmed (e.g., inappropriate use of 911)?’ ” We encourage emergency management agencies to build upon these best practices and incorporate them into any alert origination training modules that they may develop for their staff. We expect that emergency managers will be best positioned to determine the specific situations in which it is appropriate to issue Public Safety Messages. We will monitor the use of this new Alert Message classification, and will take further action in the event it becomes evident that our adopted definition is either too narrow or too broad.

    47. We do not agree with commenters that, rather than create a new Alert Message classification, we should clarify that the types of Alert Messages that would be issued as Public Safety Messages can be issued as Imminent Threat Alerts. The term “Imminent Threat Alert” is defined in our rules as “an alert that meets a minimum value for each of three CAP elements: Urgency, Severity, and Certainty.” Public Safety Messages would not fit within this definition because the “severity” and “urgency” elements of an Imminent Threat Alert describe the underlying imminently threatening emergency condition, whereas Public Safety Messages are intended to provide supplemental instructions about how to protect life or property during an AMBER Alert, Presidential Alert, or Imminent Threat Alert. We anticipate that this separate and broader applicability for Public Safety Messages will make them more versatile emergency management tools than if we were to limit such Alert Messages to the preexisting definition of an Imminent Threat Alert.

    48. In addition to tailoring the scope of emergency managers' use of Public Safety Messages, we also take steps to ensure that the public receives Public Safety Messages in an appropriate manner. Specifically, we amend Section 10.280 to specify that Participating CMS Providers shall provide for their subscribers to receive Public Safety Messages by default, and may provide their subscribers with the option to opt out of receiving Public Safety Messages if they decide that they no longer wish to receive them. We agree with the majority of commenters that the public should be opted in to receiving Public Safety Messages by default because the information that they provide is essential by definition. We agree with Hyper-Reach that treating Public Safety Messages in this manner ensures that a greater percentage of the public will receive the information that Public Safety Messages are intended to provide than would be possible if the public were opted out of receiving Public Safety Messages by default.

    49. Further, we allow, but do not require Participating CMS Providers to associate a unique attention signal or vibration cadence with Public Safety Messages. We agree with ATIS that requiring a new, unique attention signal and vibration cadence could create “significant technical impacts” for currently deployed WEA-capable mobile devices. We also agree with FEMA, however, that “the option to silence alerts that do not present an immediate threat” may have value in reducing consumer opt out. By allowing Participating CMS Providers to offer this functionality, we allow the market to determine whether or not any costs that may be implicated by these personalization options are outweighed by the benefits. Similarly, we will allow, but do not require Participating CMS Providers to provide their customers with the ability to turn off Public Safety Messages during certain hours. For example, if customers want to receive Public Safety Messages, but only during the daytime, they may be given the option to suppress the presentation of Public Safety Messages during nighttime hours.

    50. APCO and many emergency management agencies support our creation of a new Alert Message classification because it “will enable public safety alert originators to take advantage of WEA when helpful, as compared to less secure and less immediate methods they may be employing presently.” We agree with commenters that adding a new Alert Message classification will allow emergency managers to expand their “capabilities of informing the public . . . to keep the residents and community safe and aware of potential situations” during and after emergencies in a manner that complements existing Alert Message classifications. We also agree with Peoria County EMA that a new classification of Alert Messages would allow emergency managers to include specific secondary information, like shelter locations and other helpful disaster recovery instructions in WEA for the first time. Finally, we agree with commenters and CSRIC IV that it is technically feasible to support the transmission of this new Alert Message classification provided the sufficient time that we allow industry to update relevant standards.

    3. Supporting Embedded References and Multimedia

    51. We require Participating CMS Providers to support embedded references, as proposed. Accordingly, Participating CMS Providers must support the transmission of embedded URLs and phone numbers in WEA Alert Messages. This rule will become effective one year from the rules' publication in the Federal Register. Further, thirty days from the date the rules are published in the Federal Register, we allow voluntary, early adoption of embedded references through an industry-established and industry-led pilot program. With respect to multimedia, we find that the inclusion of multimedia capability in WEA Alert Messages can result in tremendous public safety benefits. At the same time, however, we recognize that additional standards development remains necessary. Accordingly, we seek comment in the Further Notice regarding the establishment of an appropriate regulatory framework and timeframe for incorporating multimedia capability into WEA Alert Messages. In order to facilitate the development of standards for multimedia in the swiftest timeframe possible, we allow voluntary, early prototyping of certain multimedia capabilities in Public Safety Messages 30 months from the effective date of the rules, as described in greater detail below.

    52. Participating CMS Providers express concern that allowing embedded references in Alert Messages would risk network congestion, but the weight of the record supports our conclusion that this action will be more likely to reduce network loading than to increase it. The public already accesses public safety and other resources using the data network upon receipt of WEA messages that do not include embedded references. This behavior, known as “milling,” is a predictable public response to receiving an Alert Message, as members of the public will seek to confirm that the indicated emergency condition is indeed occurring, and to gather additional information not provided by the Alert Message to inform their response. Milling is considered undesirable from a public safety perspective because it increases the delay between receiving an Alert Message and taking an appropriate protective action, and from a network management perspective because it increases use of the data network. We agree with FEMA, the National Weather Service (NWS), NYCEM, Dennis Mileti, Professor Emeritus of Sociology at The University of Colorado, and the many emergency managers treating this issue that providing access to additional text and resources through URLs embedded in WEA Alert Messages could actually reduce network congestion by channeling the public's milling behavior through a single authoritative and comprehensive resource. This finding is also supported by the 2014 and 2015 START Reports, which state that providing the public with access to enhanced information in WEA Alert Messages can help to convince people to take protective action more quickly. Upon review of these studies and expert analyses, we are persuaded that embedded references are likely to reduce network load when included in Alert Messages.

    53. Finally, Participating CMS Providers who claim that embedded references will result in harmful network congestion have offered no network models, or any other form of rigorous network analysis, to support their proposition that allowing embedded references in WEA would cause or contribute to network congestion. While all network activity contributes to network congestion to some degree, the unsupported assertion of a risk of network congestion cannot be the sole basis for declining to adopt any measure that utilizes the data network, particularly a measure that has been demonstrated to have a statistically significant impact on WEA's ability to save lives. In the absence of data to the contrary, and in light of the significant record outlined above, we conclude that even if support for embedded references were to result in an incremental increase in data network usage in some cases, this increase would be insufficient to affect network performance during emergencies. Further, we observe that many WEA-capable mobile devices are set to offload network usage to Wi-Fi where available by default, and nearly all smartphones make this option available through the settings menu. Thus, many individuals who choose to click on an embedded reference will not use the mobile data network to access them at all.

    54. At the same time, however, we seek to ensure that Participating CMS Providers are able to assess the performance of their networks in real-world conditions and have an opportunity to make any necessary adjustments to accommodate embedded references. AT&T and CCA support “moving ahead with a time-limited trial on their wireless network for purposes of determining whether embedded URLs result in unmanageable congestion when included in Amber Alerts.” We therefore allow voluntary, early adoption of embedded references through an industry-established and industry-led pilot. In this regard, we allow Participating CMS Providers, if they choose, to “pressure test” the use of embedded references in Alert Messages in a sample of their network area or subscriber base, prior to full implementation. To this end, Participating CMS Providers may voluntarily coordinate with NCMEC, NWS, FEMA, and other stakeholders to accomplish a targeted, pilot deployment of embedded references in WEA in a particular geographic location, Alert Message classification, or to a particular subset of subscribers thirty days from the rule's publication in the Federal Register, and prior to the effective date of our rule requiring support for embedded references. We encourage all WEA alert initiators to work with Participating CMS Providers as this functionality is piloted and deployed in order to establish best practices for the inclusion of embedded references in Alert Messages, including the development of any network congestion mitigation strategies as appropriate. For example, stakeholders could voluntarily agree to constrain the amount of data that is made available through an embedded reference. We note that NCMEC already states that it intends to use a low-bandwidth (15kB or less), mobile-friendly version of their Web site (missingkids.com) in connection with their issuance of WEA AMBER Alerts. C Spire, FEMA and NWS have suggested that limiting the bandwidth requirements of embedded references will likely mitigate the risk of network congestion by limiting the amount of data that will need to be transferred. We defer to Participating CMS Providers to identify the specific terms and timeframe of any such pilot deployment on their own initiative, as well as to undertake any necessary coordination, whether they do so individually or through a third-party coordinator of their choosing.

    55. CSRIC IV and FEMA agree that support for embedded references in alert origination software, IPAWS, the C-interface, and on mobile devices can be enabled through a straightforward process of updating standards and software. The successful use of embedded references will also require the development of appropriate best practices. Specifically, CSRIC IV observes that some individuals, particularly those with feature phones, may not have access to the data connection necessary to access content made available by URLs. We share this concern, and urge emergency managers to continue to convey the most important actionable information through the Alert Message text to ensure that all members of the public are able to receive that information, even if they are unable to access the URL. Commenters also express concern that inadequately prepared web servers or call centers may become overloaded as a result of mass access. NCMEC assures us that the AMBER Alerts Web site is capable of handling the expected increase in traffic, and we urge all alert originators to take appropriate steps to ensure the preparedness of their web hosting service before initiating an Alert Message that contains a URL. Further, we urge emergency managers to consider the capacity of their call centers or hotlines before embedding a phone number in an Alert Message.

    56. Finally, commenters express concern that allowing embedded references in Alert Messages may provide an opportunity for a malicious actor to compromise WEA. To the extent that Participating CMS Providers take part in this opportunity to pilot the use of embedded references in WEA Alert Messages, they should take appropriate steps, in concert with their pilot program partners, to ensure the integrity of the embedded references they transmit. We also encourage emergency management agencies to continue to work with FEMA and Participating CMS Providers to ensure the authenticity and integrity of every Alert Message they initiate. For example, NCMEC confirms that it already authenticates the content on every AMBER Alert on its Web site and that it will take measures to ensure the security of any URL that it might embed in a WEA AMBER Alert. We note that all WEA Alert Messages are protected with a CAP digital signature that effectively prevents malicious intrusion into Alert Message content in transit. We also note that industry has already begun to take steps to address any particular cybersecurity issues that may be implicated by allowing URLs to be included in WEA. Pursuant to the recommendation of CSRIC V, ATIS is completing a best practice standard to address potential threat vectors for WEA, including embedded references. We also encourage Participating CMS Providers and alert originators to work with FEMA to develop protocols that may help to mitigate potential risks.

    57. Commenters identify the inclusion of embedded references in Alert Messages as the most critical among all of our proposed improvements to WEA. NCMEC, in particular, has found this capability to be paramount to the success of AMBER Alerts. We agree that allowing emergency managers to embed URLs in Alert Messages empowers them to offer the public multimedia-capable, comprehensive emergency response resources. Including an authoritative URL will also likely lead to swifter community response by reducing the likelihood that consumers will seek to verify information through additional sources before taking action. We also agree with commenters that allowing URLs to be included in Alert Messages will improve WEA accessibility, could streamline the public's use of 911 services, and would provide alert originators with a method to ensure the public has access to up-to-date information.

    58. In addition to embedded URLs, allowing embedded phone numbers to be included in Alert Messages will offer the public significant public safety benefits. We agree with emergency managers, disability rights advocates and individuals that support including phone numbers in Alert Messages because integrating clickable phone numbers into WEA will provide an accessible method to quickly contact public safety officials. This capability may be particularly relevant to WEA AMBER Alerts where emergency management organizations will often establish special hotlines or call centers to receive reports about missing children that may be reached at a phone number other than 911 that may not be as commonly known. According to FEMA, providing the public with a direct emergency telephone number could hasten emergency response, and help to ensure that calls to 911 will not have to be rerouted. In sum, allowing embedded references to be included in WEA Alert Messages will dramatically improve WEA's effectiveness at moving the public to take protective action.

    59. With respect to multimedia, our decision to require support for embedded references in WEA Alert Messages is an important first step towards ensuring that WEA can be used to provide the public with actionable multimedia content during emergencies. The record shows that WEA's effectiveness depends on its ability to help the all members of the public to close the thought-action gap, and that including multimedia content in Alert Messages themselves would hasten protective action taking, reduce milling, and improve Alert Message accessibility. We therefore believe that support for multimedia content has the potential to provide tremendous public safety benefits and should be implemented as soon as technically feasible. Recognizing that further standards development remains necessary to integrate multimedia technology into WEA, we seek comment in the Further Notice on how best to implement the support of multimedia content in WEA Alert Messages in a reasonable timeframe. In particular, as described in greater detail in the Further Notice, we seek comment on the inclusion of thumbnail-sized images, including hazard symbols, in Public Safety Messages on 4G LTE and future networks. In the interim, in order to facilitate the swift development of standards for supporting multimedia content in WEA, we allow the industry to participate in voluntary prototyping of this functionality in Public Safety Messages, in coordination with FEMA, emergency management agencies, and other relevant WEA stakeholders, as of the effective date of our rule requiring support for Public Safety Messages.

    4. Supporting Spanish-Language Alert Messages

    60. We adopt a new Section 10.480 requiring Participating CMS Providers to support the transmission of Spanish-language Alert Messages. This, along with Section 10.500(e) of the Commission's WEA rules, which requires “extraction of alert content in English or the subscriber's preferred language,” will provide a framework to ensure that Spanish-language Alert Messages will be processed and displayed properly. Pursuant to this framework, we would expect that Spanish-language WEA Alert Messages would be displayed on and only on WEA-capable mobile devices where the subscriber has specified Spanish as their preferred language.

    61. The record demonstrates that it is technically feasible for Participating CMS Providers to support Spanish-language Alert Messages. ATIS has developed standards that support the Alert Gateway, the CMS Provider network and mobile devices in receiving, transmitting and displaying Alert Messages in Spanish as well as English. We applaud ATIS for completing these standards, and encourage their continued efforts to standardize network functionality for Alert Messages in additional languages. According to Microsoft, multilingual alerting is already taking place in other countries.

    62. We agree with Participating CMS Providers that they should not be responsible for Alert Message translation. Rather, emergency managers are the entities best equipped to determine message content, including content in other languages. We recognize that some emergency management agencies report that they do not currently have the capability to initiate Alert Messages in languages other than English. Other emergency management agencies, such as Harris County OHSEM, state that they do have this capability, and “NYCEM is in the final stages of preparing to offer . . . [its] 80 most common messages in the 13 most commonly spoken languages in New York City, including American Sign Language,” but those messages would have to be transmitted using alternative alerting platforms until WEA's multilingual alerting capabilities improve.

    63. We anticipate that requiring Participating CMS Providers to support Spanish-language Alert Messages where available will encourage other emergency management agencies to continue to develop their multilingual alerting capabilities. Indeed, many emergency managers state that they can use State/Local WEA Tests as a tool to exercise and improve their multilingual alerting capability over time with the help of voluntary community feedback. We do not agree with NYCEM and Clark County OEM, however, that we should facilitate Alert Message translation by requiring Participating CMS Providers to “place a `translate' button/link” in WEA Alert Messages. Rather, we agree with FEMA and the majority of emergency management agencies that automatic translation technologies that may reside on some mobile devices are currently too inaccurate to support emergency messaging.

    64. The overwhelming majority of emergency management agencies support expanding WEA's language capabilities because it will help them to reach members of their communities that are currently inaccessible to them. Emergency managers in areas with large Spanish-speaking populations, as well as those in areas popular among tourists, state that requiring support for Spanish-language WEA Alert Messages will be particularly beneficial. We also anticipate that this action will allow emergency managers to better facilitate the inclusion of Spanish-speaking individuals, and particularly those with limited English proficiency, into their emergency response plans.

    B. Alert Message Delivery 1. Logging Alert Messages at the Participating CMS Provider Alert Gateway

    65. We require Participating CMS Providers to log their receipt of Alert Messages at their Alert Gateway and to appropriately maintain those records for review. Specifically, we adopt a new Section 10.320(g) that will require Participating CMS Providers' Alert Gateways to log Alert Messages as described below. Based on the record, we have modified the rules we proposed in the WEA NPRM in order to accommodate the varied approaches Participating CMS Providers take to alert logging.

    Logging Requirements. Participating CMS Providers are required to provide a mechanism to log the CMAC attributes of all Alert Messages received at the CMS Provider Alert Gateway, along with time stamps that verify when the message is received, and when it is retransmitted or rejected by the Participating CMS Provider Alert Gateway. If an alert is rejected, a Participating CMS Provider is required to log the specific error code generated by the rejection.

    Maintenance of Logs. Participating CMS providers are required to maintain a log of all active and cancelled Alert Messages for at least 12 months after receipt of such alert or cancellation.

    Availability of Logs. Participating CMS Providers are required to make their alert logs available to the Commission and FEMA upon request. Participating CMS Providers are also required to make alert logs available to emergency management agencies that offer confidentiality protection at least equal to that provided by the federal Freedom of Information Act (FOIA) upon request, but only insofar as those logs pertain to alerts initiated by that emergency management agency. We encourage, but do not require, Participating CMS Providers to work with alert origination software vendors to automate transmission of alert log data to emergency managers' alert origination software.

    66. We find that compliance with these minimal alert logging requirements will be technically feasible. Indeed, the approach we adopt today is a more flexible and less burdensome alternative to that which we proposed in the WEA NPRM, and allows Participating CMS Providers to take a variety of approaches to achieve compliance. T-Mobile, Verizon, AT&T, Bluegrass Cellular and C Spire already log Alert Messages, and we anticipate that many other Participating CMS Providers may already be doing so as well, as part of their own system maintenance best practices. While Participating CMS Providers have taken different approaches to logging Alert Messages relative to the Trust Model recommended by CMSAAC, we anticipate that those Participating CMS Providers that already do log Alert Messages would log at least the CMAC attributes of all Alert Messages received, and be capable of sending error reports to the FEMA Alert Gateway consistent with those stipulated in the CMSAAC Report. We recognize Verizon's concern that requiring logging of information more granular than CMAC attributes and time stamps, or requiring alert logging at junctures in the WEA system other than the Alert Gateway would “impose burdensome paperwork and IT-related requirements,” but the requirements that we adopt today require only basic logging functionality at the Alert Gateway. We also recognize T-Mobile's concern that a uniform system of alert logging would be required in order to aptly compare Participating CMS Provider alert logs. We do not require Participating CMS Providers to take a uniform approach to alert logging today, only that they log the relevant information, maintain that information and make it available to appropriate parties. Further, the CMSAAC Report already stipulates a standard set of error code messages for communication between Participating CMS Provider and FEMA Alert Gateways. Finally, we recognize CTIA's concern about requiring alert logs to be maintained longer than necessary. By requiring alert logs to be maintained for 12 months, rather than 36, as proposed, we reduce the burden that alert log maintenance may pose for Participating CMS Providers. CTIA observes that a shorter alert log maintenance timeframe would incentivize emergency management agencies to request alert log data after every test or alert out of concern that alert log data may be deleted if they delay. At the same time, however, necessitating emergency management agencies to request logging information after every test is burdensome for both CMS Providers (who must produce this data) and the emergency managers (who must request the data). We believe that requiring that alert logs be retained for one year strikes an appropriate balance that will allow emergency management agencies to request reports less frequently, posing lesser burdens on Participating CMS Providers and emergency management agencies, without requiring providers to retain logs for an extended period of time. Further, circumstances may arise that warrant a retrospective examination of prior log data that represents a sufficient period of time to accurately identify and represent trends or anomalies.

    67. Alert logging has been a fundamental aspect of the WEA Trust Model. As we adopt changes to our rules that reflect our four years of experience with WEA and the underlying advancements of technology, it is time to ensure this fundamental component of system integrity is implemented. Authorized WEA alert originators agree that alert logs maintained at the Participating CMS Provider Alert Gateway have potential to increase their confidence that WEA will work as intended when needed. According to emergency managers, this increased confidence in system availability will encourage emergency managers that do not currently use WEA to become authorized. Alert logs are also necessary to establish a baseline for system integrity against which future iterations of WEA can be evaluated. Without records that can be used to describe the quality of system integrity, and the most common causes of message transmission failure, it will be difficult to evaluate how any changes to WEA that we may adopt subsequent to this Report and Order affect system integrity. We disagree with AT&T, Sprint and ATIS that the responsibility for alert logging properly belongs with FEMA IPAWS because FEMA has access to sufficient information to generate these reports. We find that alert logging is particularly important at Participating CMS Providers' Alert Gateway because even though FEMA IPAWS maintains an alert log at their Alert Gateway as well, that alert log alone could not capture and describe alert delivery across the C-interface, which is arguably the most critical interface in the WEA architecture because it describes the connection between the public aspect of WEA (FEMA IPAWS) and the private aspect (CMS Providers). Additionally, the time stamps that we require Participating CMS Providers to log for Alert Message receipt and retransmission may represent a useful model for collecting latency data throughout the WEA system, as proposed in the Further Notice. As discussed in further detail below, developing a stronger understanding of the extent of alert delivery latency is also crucial to building emergency managers' confidence that the system will work as intended when needed. We anticipate that the alert log maintenance requirements that we adopt today will serve to ensure that alert logs are available when needed, both to the Commission and to emergency management agencies. Indeed, any alert logging requirement would be seriously undermined if those logs could be overwritten as soon as they were recorded, or if they could not be reviewed in appropriate circumstances. Further, we observe that the alert log maintenance requirements that we adopt today are consistent with CMSAAC's initial recommendations for the WEA system. Finally, we observe that implementing these CMSAAC-recommended procedures would be beneficial in harmonizing our WEA logging requirements with those already in place for EAS Participants.

    2. Narrowing Geo-Targeting Requirements

    68. We narrow our WEA geo-targeting requirement from the current county-level standard to a polygon-level standard. Specifically, we amend Section 10.450 to state that a Participating CMS Provider must transmit any Alert Message that is specified by a geocode, circle, or polygon to an area that best approximates the specified geocode, circle, or polygon. While we initially proposed that Participating CMS Providers should transmit the Alert Message to an area “no larger than” the specified area, the record shows that implementation of such a standard, in the absence of geo-fencing, would routinely and predictably lead to under alerting. We acknowledge, as do many emergency managers, that cell broadcast technology has a limited capacity for accurate geo-targeting. The “best approximates” standard we adopt today, recommended by CSRIC IV and supported by Participating CMS Providers, requires Participating CMS Providers to leverage that technology to its fullest extent, given its limitations. At the same time, as we discuss below, we acknowledge that emergency managers need even more granular geo-targeting than the “best approximates” standard requires. We commend Participating CMS Providers for voluntarily geo-targeting Alert Messages more accurately than our rules require, where possible, in the years since WEA's deployment. We expect that Participating CMS Providers will continue to innovate in order to provide their subscribers with the best emergency alerting service it is feasible for them to offer. In this regard, we clarify that the geo-targeting requirement we adopt today does not preclude Participating CMS Providers from leveraging the location-sensing capability of WEA-capable mobile devices on their networks to geo-target Alert Message more accurately. As discussed below, the Commission will be adopting even more granular, handset-based, geo-targeting requirements. Our ultimate objective is for all Participating CMS Providers to match the target area provided by an alert originator.

    69. Some alert originators remain concerned that a “best approximates” standard will continue to result in over-alerting and subsequent consumer opt-out. NYCEM, for example, warns that the “best approximates” approach is vague and risks weakening our current geo-targeting requirement. While we do not adopt specific parameters for what constitutes “best approximates,” we expect Participating CMS Providers to take reasonable efforts to leverage existing technology to its fullest extent, as noted above. We observe that in a recently adopted report, CSRIC V articulates expectations for cell broadcast-based geo-targeting in rural, suburban and urban areas pursuant to a “best approximates” approach. Specifically, in rural areas, CSRIC V expects that Participating CMS Providers would be able to approximate the target area with 30,000 meters of “overshoot.” In suburban areas, where cell broadcast facilities are likely to be more densely deployed, CSRIC V expects that geo-targeting would become more accurate, achieving an average overshoot of five miles. In urban areas, CSRIC V expects that geo-targeting would be more accurate still, averaging two miles of overshoot. We find that these values would satisfy reasonable efforts to “best approximate” the alert area, consistent with our requirement. In this regard, we believe we strike an appropriate balance between the limitations of Participating CMS Providers' current geo-targeting capabilities using cell broadcast, and WEA stakeholders' goal of sending WEA Alert Messages only to those members of the public who are at risk.

    70. We find that compliance with this geo-targeting requirement is technically feasible, and, in fact, every commenting CMS Provider except one states that they already use network-based cell broadcast techniques, such as algorithm-based facility selection and cell sectorization, to geo-target Alert Messages to polygonal areas more granular than required by our current “county-level” requirement. In this sense, the rule we adopt today will require most Participating CMS Providers only to continue to employ the techniques that they have been deploying as a matter of best practice. Emergency managers such as the NWS have also already transitioned from county- to polygon-level geo-targeting, and express a need for WEA to keep pace with their ability to forecast with granularity the areas that will be impacted by weather events. We observe that in the event Participating CMS Providers are unable to practice polygon-level geo-targeting, we continue to allow Participating CMS Providers to transmit Alert Messages to an area not exceeding the propagation area of a single transmission site, as described in Section 10.450. We make conforming amendments to Section 10.450, however, to reflect the new geo-targeting standard that we adopt today and specify that “[i]f, however, the Participating CMS Provider cannot broadcast the Alert Message to an area that best approximates the target area, a Participating CMS Provider may transmit the Alert Message to an area not larger than the propagation area of a single transmission site.”

    71. Participating CMS Providers' support for polygon-level geo-targeting will produce significant public safety benefits. Relative to county-level geo-targeting, we expect that polygon-level geo-targeting will reduce over-alerting. When the public regularly receives alerts that do not apply to them, it creates alert fatigue, a driving factor behind consumers' decisions to opt out of receiving WEA Alert Messages. Further, the Houston Office of Public Safety and Homeland Security comments that “[c]ounty-level WEA warning is not only inconvenient, but can be dangerous, as protective actions may vary depending on the proximity to the hazard.” Under-alerting also poses severe public safety risks. According to Austin Homeland Security and Emergency Management, under a county-level geo-targeting standard, “if there are no cell towers physically located in the warning area, the alert may not be transmitted at all by some carriers.” This would be impermissible under the “best approximates” standard we adopt today. We also agree with Dennis Mileti, Professor Emeritus of Sociology at The University of Colorado, that with improved geo-targeting, “it is quite likely that milling after a received WEA message would decrease since people would not need to determine if they are in the intended audience for the WEA.” A reduction in milling is desirable because it reduces the delay between the time an Alert Message is received, and the time that the public will begin to take protective action. This reduction in milling behavior is also likely to benefit Participating CMS Providers by reducing network usage at times when their network is otherwise vulnerable to congestion due to the pending emergency event. Finally, we agree with BRETSA and Douglas County Emergency Management that more granular alerting will encourage emergency managers to become authorized as WEA alert originators. Simply put, Participating CMS Providers' support for polygon-level geo-targeting is an important step towards ensuring that everyone affected by an emergency has access to the emergency information provided by WEA, and contributes to the public perception that “if you receive a WEA, take action, because it applies to you.”

    72. Our decision to require support for Participating CMS Providers' best approximation of the target area is an important step towards ensuring that WEA Alert Messages can be sent to only those individuals for whom they are relevant. The record shows that over-alerting leads to alert fatigue, residents that ignore the Alert Messages, and public safety officials who refrain from using WEA in emergencies. The record also demonstrates consensus among emergency managers and Participating CMS Providers that we should clear a path forward for even more accurate geo-targeting, and that we should make progress towards the achievement of this goal by adopting an appropriate regulatory framework, and by continuing to collaborate with WEA stakeholders to establish standards and best practices, and to better understand technical issues. Recognizing that standards development and network modifications may be necessary to further improve geo-targeting, in the Further Notice we seek comment on any issues that remain to be addressed and on an appropriate timeframe for compliance.

    73. Finally, we take action to ensure that emergency alert originators better understand the manner in which their messages will be geo-targeted. In the WEA NPRM we sought comment on whether to require Participating CMS Providers to report data to alert originators about their provision of WEA along key performance metrics, including the accuracy of geo-targeting. In response, emergency managers observe that information about geo-targeting, in particular, would be helpful to inform their emergency response planning efforts by improving transparency and understanding of IPAWS/WEA among emergency managers authorized to use WEA. Commenters also indicate that this transparency, in turn, could increase WEA adoption by non-participating emergency managers. In light of the demonstrated benefits of improving emergency managers' understanding of the geographic area to which their WEA Alert Messages will be targeted, we require that, upon request from an emergency management agency, a Participating CMS Provider will disclose information regarding their capabilities for geo-targeting Alert Messages (e.g., whether they are using network-based technology to “best approximate” the target area, or whether they are using device-based geo-fencing). A Participating CMS Provider is only required to disclose this information to an emergency management agency insofar as it would pertain to Alert Messages initiated by that emergency management agency, and only so long as the emergency management agency offers confidentiality protection at least equal to that provided by the federal FOIA.

    3. Presenting Alert Messages Concurrent With Other Device Activity

    74. We amend Section 10.510 to require WEA-capable mobile devices to present WEA Alert Messages as soon as they are received. We expect that devices engaged in active voice or data sessions on 4G-LTE networks will receive and prominently present WEA Alert Messages as soon as they are available, whereas WEA-capable mobile devices engaged in active voice or data sessions on legacy networks will not be able to receive available Alert Messages until the active voice or data session concludes. This approach is consistent with the ATIS/TIA Mobile Device Behavior Specification's treatment of Alert Message prioritization.

    75. We also allow Participating CMS Providers to provide their subscribers with the option to specify how the vibration cadence and attention signal should be presented when a WEA Alert Message is received during an active voice or data session in a manner that does not “preempt” it. Pursuant to the ATIS/TIA Mobile Device Behavior Specification, a “momentary interruption of a voice call or active data session, such as a brief visual, audible and/or vibration indication that a CMAS message has been received, is not considered preemption so long as the voice call/data session is not terminated and facilities to support that voice call or data session are not seized or released.” We note that, according to ATIS, WEA-capable mobile devices currently take a variety of approaches to the use of the vibration cadence and audio attention signal to make the user aware of the receipt of an Alert Message while he/she is engaged in other device activity, but, according to AT&T, it “is possible to display the WEA alert in LTE VoLTE with the alert tone suppressed” during active voice sessions. We encourage Participating CMS Providers to leverage this capability by providing their customers with the option to change the manner in which the common attention signal and vibration cadence are used during active voice and data sessions.

    76. This approach reflects the critical importance of a WEA Alert Message to its recipient, while also respecting that the Alert Message recipient may be using their mobile device to engage in a protective action that should not be interrupted, such as placing a call to 911, at the time the Alert Message is received. This approach is consistent with mobile device manufacturers' perspective that giving full priority to WEA Alert Messages during active voice calls “would be distracting to the user,” and that the WEA Alert Message should not disrupt the voice telephony capability of the device. It is also consistent with emergency managers' perspective that the readily recognizable common attention signal and vibration cadence should be presented to the public as quickly as technically possible, particularly during emergency situations where every second is critical. Conversely, we agree with commenters that a “priority access” requirement that would require ongoing voice and data sessions to be terminated by the receipt of a WEA Alert Message would not be in the public interest because it could result in the termination of other critical emergency communications.

    C. Testing and Outreach 1. Supporting State/Local WEA Testing and Proficiency Training Exercises

    77. We require Participating CMS Providers to support State/Local WEA Tests, as proposed in the WEA NPRM. Specifically, we adopt a new Section 10.350(c) to require Participating CMS Providers to support the receipt of State/Local WEA Tests from the Federal Alert Gateway Administrator, and to distribute such tests to the desired test area in a manner consistent with the Commission's Alert Message requirements. We reason that requiring State/Local WEA Tests to be received and delivered in accordance with our Alert Message requirements will ensure that emergency managers have the opportunity to test in an environment that mirrors actual alert conditions and evaluate, for example, the accuracy with which various Participating CMS Providers geo-target Alert Messages in their community. Unlike other Alert Messages, however, consumers will not receive State/Local WEA Tests by default. Participating CMS Providers should provide their subscribers with the option to receive State/Local WEA Tests, and subscribers would have to affirmatively select this option in order to receive these test messages. According to CTIA, “[t]his way, unwanted test messages will not disturb wireless consumers who could become confused or annoyed by test messages and opt out of WEA entirely.” We also agree with Sprint that making State/Local WEA Tests available on an opt-in basis minimizes any risk of call center congestion. Another respect in which a State/Local WEA Test will differ from an actual Alert Message is that we require State/Local WEA Tests to include conspicuous language sufficient to make clear to the public that the message is, in fact, only a test. This will minimize any chance that such test messages might be misconstrued as actual Alert Messages.

    78. The 24-hour delivery window that currently applies to RMTs under Section 10.350(a)(2) will not apply to State/Local WEA Tests. Rather, we require that Participating CMS Providers transmit State/Local WEA Tests immediately upon receipt. We agree with commenters that allowing Participating CMS Providers to delay delivery of State/Local WEA Tests would make it impossible for emergency managers to evaluate message delivery latency, and might result in individuals who do opt in to receive State/Local WEA Tests receiving them in the middle of the night, which is unlikely to promote participation. A Participating CMS Provider may not forgo or delay delivery of a State/Local WEA Test, except when the test is preempted by actual Alert Message traffic, or if an unforeseen condition in the Participating CMS Provider infrastructure precludes distribution of the State/Local WEA Test. If a Participating CMS Provider Gateway forgoes or delays a State/Local WEA Test for one of these reasons, it shall send a response code to the Federal Alert Gateway indicating the reason consistent with how we currently require Participating CMS Providers to handle forgone RMTs. We anticipate that allowing Participating CMS Providers to forgo transmittal of a State/Local WEA Test if it is preempted by actual alert traffic or if unforeseen conditions arise will ensure that State/Local WEA Tests do not “overwhelm wireless provides' limited resources, ” as stated by CTIA. We defer to emergency managers to determine how frequently testing is appropriate, given this constraint.

    79. We encourage emergency management agencies to engage in proficiency training exercises using this State/Local WEA Testing framework where appropriate. We agree with commenters that proficiency training exercises are a helpful and meaningful way for emergency managers to engage with alert and warning issues. Moreover, we agree with San Joaquin County OES that “proficiency training is an essential element of verifying competency” in the alert origination skill set necessary to issue effective WEA Alert Messages. We observe that our rules allow such proficiency training exercises now. We agree with APCO that alert origination software can be used to support internal proficiency training exercises where emergency managers wish to iterate alert origination best practices in a closed environment, and that the State/Local WEA Testing framework described above is sufficient to support cases where emergency management agencies find it appropriate to involve the public in their WEA exercises. We hope that proficiency training exercises will provide emergency management agencies with a method of generating their own WEA alert origination best practices, particularly with respect to the kinds of enhanced Alert Messages enabled by this proceeding (i.e., Alert Messages up to 360 characters in length that may include embedded references, may be issued in Spanish, and may be intended to supplement an already-issued Alert Message).

    80. We find that requiring Participating CMS Providers to support this State/Local WEA Testing framework is technically feasible, requiring only updates to software and standards in order to allow users the option to opt in to receive such tests, and that it will result in significant public safety benefits. Specifically, we agree with Clarion County OES and the Lexington Division of Emergency Management that while occasional system failures are probable, a solid testing and training platform such as this can ensure that failures can be corrected during a period where no real emergency exists. We also agree with Calcasieu Parish Police Jury Office of Homeland Security and Emergency Preparedness that regular readiness testing and proficiency training are critical to maintaining WEA alert origination competency because “[i]f you don't use it you lose it.” According to FEMA, requiring Participating CMS Providers to support State/Local WEA Testing will improve WEA by providing confidence to the public that their handsets are capable of receiving an Alert Message from local emergency management agencies, and by rendering WEA suitable for use in coordinated public warning exercises, such as those required by the Nuclear Regulatory Commission for local emergency preparedness programs. Further, we agree with Harris County Office of Homeland Security and Emergency Management that State/Local WEA Tests, in conjunction with targeted outreach efforts, may be useful to emergency managers as a tool to improve their competency at initiating Alert Messages in languages other than English. Importantly, emergency managers may also use State/Local WEA Tests to voluntarily collect and share information about geo-targeting, alert delivery latency, and other vital performance metrics. We encourage emergency managers and related entities to engage in extensive outreach to their respective communities in order to socialize the benefits of public participation in State/Local WEA Tests, and otherwise to raise public awareness about the benefits of receiving WEA messages, including through the use of PSAs.

    2. Testing the NCE Public Television C-Interface Back-up

    81. We agree with the public broadcasting and NCE commenters that in order to be fully effective and reflective of WEA system needs, a test of the public television broadcast-based backup to the C-interface should be implemented as an end-to-end test from the IPAWS to the CMS Provider Gateways. Accordingly, we amend our rules to make it clear that periodic C interface testing must include the testing of its public television broadcast-based backup. Pursuant to this framework, FEMA would initiate a test of the broadcast-based C-interface backup by sending a test message through that infrastructure to the CMS Provider Alert Gateway, which would respond by returning an acknowledgement of receipt of the test message to the FEMA Gateway. This approach ensures reliable continuity between FEMA and Participating CMS Providers, even during a disaster in which internet connectivity may be lost. We defer to FEMA as the IPAWS and Federal Alert Gateway administrator to determine the periodicity of these tests in conversation with Participating CMS Providers.

    82. By requiring CMS Providers to participate in periodic testing of the broadcast-based backup to the C-interface, “we develop and implement the appropriate safeguards to ensure delivery of critical infrastructure services,” as recommended by the CSRIC v. WEA Security Report. PBS, APTS, and CPB agree that this approach to testing the C-interface backup presents NCE public broadcasting entities with no additional cost burdens. We agree with PBS, APTS, and CPB that this rule will require no “material intervention” by such stations because their receipt and retransmission of test messages will be entirely automated, and will use equipment already installed at their facilities. Accordingly, we anticipate that stations in compliance with our rules today will have to take no additional steps in order to comply with this new testing requirement.

    3. Facilitating WEA PSAs

    83. We amend Sections 11.45 and 10.520 to allow federal, state and local, tribal and territorial entities, as well as non-governmental organizations (NGOs) in coordination with such entities, to use the attention signal common to EAS and WEA to raise public awareness about WEA. WEA PSAs that use the WEA attention signal must make clear that it is being used in the context of the PSA, “and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program,” including by explicitly stating that the WEA attention signal is being used in the context of a PSA for the purpose of educating the public about WEA.

    84. We agree with commenters that facilitating federal, state, local, tribal and territorial governments' issuance of WEA PSAs, as proposed, is in the public interest, and that the utility of WEA PSAs will only be augmented by allowing NGOs to produce them in coordination with governmental entities by promoting effective community partnership. Specifically, WEA PSAs can be effective tools to raise public awareness about, and promote positive perceptions of WEA, which may reduce consumer opt-out and reduce milling. We note the PSA campaign of Minnesota Emergency, Community Health and Outreach (ECHO), a program and service of Twin Cities Public Television, as an example of how governmental entities can partner with NGOs to raise community awareness about the significance of the common alerting attention signal for EAS and WEA. We also note that WEA PSAs have become a critical part of FEMA's Ready campaign that has “shown that it can enhance the public's understanding of how the WEA functions and increase the public's benefits from the WEA and thereby benefit public safety generally.” We agree with commenters that the issuance of WEA PSAs is particularly appropriate in the context of the rules we adopt today. For example, with respect to increasing the maximum WEA character limit, FEMA notes that it will “need to . . . conduct additional public information efforts to inform people of the new format of Alert Messages they may receive on their cellular phones.” Additionally, we anticipate that PSAs will be an effective method to acclimate the public to the fact that they may receive supplemental instructions about how to respond to an emergency through the newly adopted WEA Public Safety Message classification. Indeed, we commit to work with WEA stakeholders to develop community outreach plans and raise public awareness about each of the WEA enhancements made possible by this Report and Order. Moreover, we agree with Professor Denis Mileti, Professor Emeritus, University of Colorado, that WEA PSAs can reduce milling by “build[ing] the reputation of the WEA system with the American public,” making it a more credible and authoritative single resource for emergency information.

    D. Compliance Timeframes Rule amendment Compliance timeframe Rule(s) affected Increasing Maximum WEA Character Length Within 30 months of the rule's publication in the Federal Register 47 CFR 10.430. Classifying Public Safety Messages Within 30 months of the rules' publication in the Federal Register 47 CFR 10.280(a), 47 CFR 10.400(d), 47 CFR 10.410. Supporting Embedded References and Multimedia The removal of our prohibition on the use of embedded references is effective 30 days from the rules' publication in the Federal Register Our requirement to support embedded references is effective one year from the rules' publication in the Federal Register 47 CFR 10.440, 47 CFR 10.441. Spanish-language Alerting Within 2 years of the rule's publication in the Federal Register 47 CFR 10.480. Alert Logging Within 60 days of publication in the Federal Register of a notice announcing the approval by the Office of Management and Budget of the modified information collection requirements 47 CFR 10.320(g). WEA Geo-targeting Within 60 days of the rule's publication in the Federal Register 47 CFR 10.450. WEA Presentation Within 30 months of the rule's publication in the Federal Register 47 CFR 10.510. State/Local WEA Testing Within 30 months of the rule's publication in the Federal Register 47 CFR 10.350(c). C-interface Backup Testing Within 30 days of the rule's publication in the Federal Register 47 CFR 10.350(b). WEA PSAs Within 30 days of the rule's publication in the Federal Register 47 CFR 10.520(d).

    85. Therefore, nationwide Participating CMS Providers' subscribers should have greater confidence that WEA Alert Messages they receive are intended for them as of February, 2017. Participating CMS Providers' subscribers should expect to be able to receive Alert Messages in Spanish by 2019. Then, by June 2019, they should expect to see 360-character maximum alerts on 4G LTE and future networks, Public Safety Messages, Alert Messages that contain embedded references, and State/Local WEA Tests presented as soon as they are received. While we expect that updates to our WEA PSA, C-interface backup testing, and alert logging rules will produce significant public safety benefits, as described below, we do not anticipate that consumers will immediately notice a change in service due to these updates.

    II. Ordering Clauses

    86. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 301(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206, that the WEA Report and Order and Further Notice of Proposed Rulemaking in PS Docket Nos. 15-91 and 15-94 is hereby adopted.

    87. It is further ordered that the Commission's rules are hereby amended as set forth in Appendix A.

    88. It is further ordered that the rules adopted herein will become effective as described herein,1 including those rules and requirements which contain new or modified information collection requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act that will become effective after publication in the Federal Register of a notice announcing such approval and the relevant effective date.2

    1See supra Section III.D (Compliance Timeframes.)

    2 Public Law 104-13, 109 Stat. 163 (May 22, 1995), codified at 44 U.S.C. 3501 et seq.

    89. Governmental Affairs Bureau, Reference Information Center, shall send a copy of the WEA Report and Order and Further Notice of Proposed Rulemaking, including the Final and Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    The rules in this part are issued pursuant to the authority contained in the Warning, Alert, and Response Network Act, Title VI of the Security and Accountability for Every Port Act of 2006, Public Law 109-347, Titles I through III of the Communications Act of 1934, as amended, and Executive Order 13407 of June 26, 2006, Public Alert and Warning System, 71 FR 36975 (June 28, 2006).

    List of Subjects 47 CFR Part 10

    Communications common carriers, Emergency alerting.

    47 CFR Part 11

    Radio, Television, Emergency alerting.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 10 and 11 to read as follows:

    PART 10—WIRELESS EMERGENCY ALERTS 1. The authority citation for part 10 continues to read as follows: Authority:

    47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606; sections 602(a), (b), (c), (f), 603, 604 and 606 of Pub. L. 109-347, 120 Stat. 1884.

    2. Effective May 1, 2019, § 10.280 is amended by revising paragraph (a) to read as follows:
    § 10.280 Subscribers' right to opt out of WEA notifications.

    (a) CMS providers may provide their subscribers with the option to opt out of the “Child Abduction Emergency/AMBER Alert,” “Imminent Threat Alert” and “Public Safety Message” classes of Alert Messages.

    3. Effective on the date to be announced by the Commission in a document published in the Federal Register, § 10.320 is amended by adding paragraph (g) to read as follows:
    § 10.320 Provider alert gateway requirements.

    (g) Alert logging. The CMS provider gateway must perform the following functions:

    (1) Logging requirements. Log the CMAC attributes of all Alert Messages received at the CMS Provider Alert Gateway, including time stamps that verify when the message is received, and when it is retransmitted or rejected by the Participating CMS Provider Alert Gateway. If an Alert Message is rejected, a Participating CMS Provider is required to log the specific error code generated by the rejection.

    (2) Maintenance of logs. Participating CMS Providers are required to maintain a log of all active and cancelled Alert Messages for at least 12 months after receipt of such alert or cancellation.

    (3) Availability of logs. Participating CMS Providers are required to make their alert logs available to the Commission and FEMA upon request. Participating CMS Providers are also required to make alert logs available to emergency management agencies that offer confidentiality protection at least equal to that provided by the federal Freedom of Information Act (FOIA) upon request, but only insofar as those logs pertain to Alert Messages initiated by that emergency management agency.

    4. Effective December 1, 2016, § 10.350 is amended by revising the section heading, introductory text, and paragraph (b) to read as follows:
    § 10.350 WEA testing and proficiency training requirements.

    This section specifies the testing that is required of Participating CMS Providers.

    (b) Periodic C interface testing. In addition to the required monthly tests, a Participating CMS Provider must participate in periodic testing of the interfaces between the Federal Alert Gateway and its CMS Provider Gateway, including the public television broadcast-based backup to the C-interface. This periodic interface testing is not intended to test the CMS Provider's infrastructure nor the mobile devices but rather is required to ensure the availability/viability of both gateway functions. Each CMS Provider Gateway shall send an acknowledgement to the Federal Alert Gateway upon receipt of such interface test messages. Real event codes or Alert Messages shall not be used for this periodic interface testing.

    5. Effective May 1, 2019, § 10.350 is amended by adding paragraph (c) to read as follows:
    § 10.350 WEA testing and proficiency training requirements.

    (c) State/Local WEA Testing. A Participating CMS Provider must support State/Local WEA Tests in a manner that complies with the Alert Message Requirements specified in Subpart D.

    (1) A Participating CMS Provider's Gateway shall support the ability to receive a State/Local WEA Test message initiated by the Federal Alert Gateway Administrator.

    (2) A Participating CMS Provider shall immediately transmit a State/Local WEA Test to the geographic area specified by the alert originator.

    (3) A Participating CMS Provider may forego a State/Local WEA Test if the State/Local WEA Test is pre-empted by actual alert traffic or if an unforeseen condition in the CMS Provider infrastructure precludes distribution of the State/Local WEA Test. If a Participating CMS Provider Gateway forgoes a State/Local WEA Test, it shall send a response code to the Federal Alert Gateway indicating the reason.

    (4) Participating CMS Providers shall provide their subscribers with the option to opt in to receive State/Local WEA Tests.

    6. Effective May 1, 2019, § 10.400 is amended by revising the introductory text and adding paragraph (d) to read as follows:
    § 10.400 Classification.

    A Participating CMS Provider is required to receive and transmit four classes of Alert Messages: Presidential Alert; Imminent Threat Alert; Child Abduction Emergency/AMBER Alert; and Public Safety Message.

    (d) Public Safety Message. A Public Safety Message is an essential public safety advisory that prescribes one or more actions likely to save lives and/or safeguard property during an emergency. A Public Safety Message may only be issued in connection with an Alert Message classified in paragraphs (a), (b) or (c) of this section.

    7. Effective May 1, 2019, § 10.410 is revised to read as follows:
    § 10.410 Prioritization.

    A Participating CMS Provider is required to transmit Presidential Alerts upon receipt. Presidential Alerts preempt all other Alert Messages. A Participating CMS Provider is required to transmit Imminent Threat Alerts, AMBER Alerts and Public Safety Messages on a first in-first out (FIFO) basis.

    8. Effective May 1, 2019, § 10.430 is revised to read as follows:
    § 10.430 Character limit.

    A Participating CMS Provider must support transmission of an Alert Message that contains a maximum of 360 characters of alphanumeric text. If, however, some or all of a Participating CMS Provider's network infrastructure is technically incapable of supporting the transmission of a 360-character maximum Alert Message, then that Participating CMS Provider must support transmission of an Alert Message that contains a maximum of 90 characters of alphanumeric text on and only on those elements of its network incapable of supporting a 360 character Alert Message.

    § 10.440 [Removed].
    9. Effective December 1, 2016, remove § 10.440. 10. Effective November 1, 2017, § 10.441 is added to read as follows:
    § 10.441 Embedded references.

    Participating CMS Providers are required to support Alert Messages that include an embedded Uniform Resource Locator (URL), which is a reference (an address) to a resource on the Internet, or an embedded telephone number.

    11. Effective January 3, 2017, § 10.450 is revised to read as follows:
    § 10.450 Geographic targeting.

    This section establishes minimum requirements for the geographic targeting of Alert Messages.

    (a) A Participating CMS Provider will determine which of its network facilities, elements, and locations will be used to geographically target Alert Messages. A Participating CMS Provider must transmit any Alert Message that is specified by a geocode, circle, or polygon to an area that best approximates the specified geocode, circle, or polygon. If, however, the Participating CMS Provider cannot broadcast the Alert Message to an area that best approximates the specified geocode, circle, or polygon, a Participating CMS Provider may transmit an Alert Message to an area not larger than the propagation area of a single transmission site.

    (b) Upon request from an emergency management agency, a Participating CMS Provider will disclose information regarding their capabilities for geo-targeting Alert Messages. A Participating CMS Provider is only required to disclose this information to an emergency management agency insofar as it would pertain to Alert Messages initiated by that emergency management agency, and only so long as the emergency management agency offers confidentiality protection at least equal to that provided by the federal FOIA.

    12. Effective November 1, 2018, § 10.480 is added to subpart D to read as follows:
    § 10.480 Language support.

    Participating CMS Providers are required to transmit WEA Alert Messages that are issued in the Spanish language or that contain Spanish-language characters.

    13. Effective May 1, 2019, § 10.510 is revised to read as follows:
    § 10.510 Call preemption prohibition.

    Devices marketed for public use under part 10 must present an Alert Message as soon as they receive it, but may not enable an Alert Message to preempt an active voice or data session. If a mobile device receives a WEA Alert Message during an active voice or data session, the user may be given the option to control how the Alert Message is presented on the mobile device with respect to the use of the common vibration cadence and audio attention signal.

    14. Effective December 1, 2016, § 10.520 is amended by revising paragraph (d) to read as follows:
    § 10.520 Common audio attention signal.

    (d) No person may transmit or cause to transmit the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test, except as designed and used for Public Service Announcements (PSAs) by federal, state, local, tribal and territorial entities, and non-governmental organizations in coordination with those entities, to raise public awareness about emergency alerting, provided that the entity presents the PSA in a non-misleading manner, including by explicitly stating that the emergency alerting attention signal is being used in the context of a PSA for the purpose of educating the viewing or listening public about emergency alerting.

    PART 11—EMERGENCY ALERT SYSTEM 15. The authority citation for part 11 continues to read as follows: Authority:

    47 U.S.C. 151, 154 (i) and (o), 303(r), 544(g) and 606.

    16. Effective December 1, 2016, § 11.45 is revised to read as follows:
    § 11.45 Prohibition of false or deceptive EAS transmissions.

    No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS, or as specified in § 10.520(d) of this chapter.

    [FR Doc. 2016-26120 Filed 10-31-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 395 [Docket No. FMCSA-2016-0096] Hours of Service of Drivers: Specialized Carriers & Rigging Association (SC&RA); Application for Exemption; Final Disposition AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Notice of final disposition; partial grant and partial denial of application for exemption.

    SUMMARY:

    FMCSA announces its decision to grant the Specialized Carriers & Rigging Association (SC&RA) an exemption from the 30-minute rest break rule of the Agency's hours-of-service (HOS) regulations for certain commercial motor vehicle (CMV) drivers. The Agency denies SC&RA's further request for exemption from the 14-hour driving window of the HOS rules. All qualifying motor carriers and drivers operating mobile cranes with a rated lifting capacity of greater than 30 tons are exempt from the 30-minute break provision. FMCSA has analyzed the exemption application and public comments and has determined that the exemption, subject to the terms and conditions imposed, will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.

    DATES:

    The exemption is effective November 1, 2016 and expires on November 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For information concerning this notice, contact Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 614-942-6477. Email: [email protected] If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.

    SUPPLEMENTARY INFORMATION:

    Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

    The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reasons for denying or granting the application and, if granted, the name of the person or class of persons receiving the exemption, and the regulatory provision from which the exemption is granted. The notice must also specify the effective period and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

    Request for Exemption

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule amending its HOS regulations for drivers of property-carrying CMVs. The rule requires most drivers to take a rest break during the workday. Generally, if 8 hours have passed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes, the driver may not operate a CMV until he or she takes at least 30 minutes off duty (49 CFR 395.3(a)(3)(ii)). FMCSA did not specify when drivers must take the 30-minute break. The HOS rules also limit drivers of property-carrying CMVs to a 14-hour driving window each duty day (49 CFR 395.3(a)(2)). The window begins when the driver comes on duty following at least 10 consecutive hours off duty. After the 14th consecutive hour from that point, the driver cannot operate a CMV until he or she obtains at least 10 consecutive hours off duty. The requirements of the HOS rules apply to drivers of CMVs and to their motor carrier employers who direct the drivers to operate the CMVs.

    On June 18, 2015, FMCSA granted SC&RA an exemption from the 30-minute rest-break requirement for qualifying drivers operating certain large and heavy vehicles that require an oversize/overweight (OS/OW) permit issued by State or local government (80 FR 34957). The Agency granted this exemption for the maximum period of 2 years permitted by the FMCSRs at that time. On December 4, 2015, the President signed the “Fixing America's Surface Transportation Act” (FAST Act)(Pub. L. 114-94). Section 5206(a)(3) of the FAST Act amended 49 U.S.C. 31315(b) to give FMCSA the authority to grant exemptions for up to 5 years. In addition section 5206(b)(2)(A) extended any HOS exemption in effect on the date of enactment for a period of 5 years from the date it was issued. While that provision automatically extended SC&RA's June 2015 exemption for drivers of vehicles requiring an oversize/overweight permit, FMCSA is using its authority under 49 U.S.C. 31315(b)(2)(1) to issue the exemption from the 30-minute break requirement for mobile crane operators for 2 years from the date of this notice.

    SC&RA advises that there are approximately 85,000 trained and certified mobile crane operators in the United States, and, of these, approximately 65,000 operate cranes with a lifting capacity over 30 tons. While some of these cranes require a permit due to their size or weight, others do not. SC&RA seeks an exemption from the 14-hour rule and the requirement for a 30-minute break for drivers operating mobile cranes with a rated lifting capacity of greater than 30 tons. SC&RA states that the HOS rules create complications because it is difficult to find suitable parking when crane drivers are required to go off duty. SC&RA cites data indicating that there is a shortage of parking places for CMVs in the United States and notes ongoing Federal and State efforts to address this problem. Parking for cranes is even more limited because of their size. SC&RA asserts that these two HOS rules often require crane drivers to stop operating a CMV to avoid violating their provisions. The result is that cranes are often parked on the shoulder of public roads. SC&RA states the width of some cranes means they cannot be parked entirely off the travel lanes, creating a safety hazard for their own drivers and others.

    SC&RA describes the unpredictable nature of the typical workday of a crane operator. It lists a variety of variables that can complicate the scheduling of operations, including delays waiting for the item to be lifted to arrive at the work site or to be rigged for lifting. Unexpected inclement weather can also trigger delays. SC&RA asserts that the primary result is that the workday may be extended unexpectedly. Thus, timing a crane's movement from the worksite and onto public roads at the end of the day is highly problematic. It notes that State and local restrictions limit the hours of the day, and sometimes the days of the week, that cranes may move on public roads. In addition, the movement of cranes may require a pilot car, the display of signs and lights, and even a police escort. Cranes normally move much slower than the posted speed limit, and are highly susceptible to weather and traffic conditions.

    SC&RA does not foresee any negative impact to safety from the requested exemption. It believes that granting the exemption would have a favorable impact on overall safety by reducing the frequency of cranes being parked along public roads. It points out that its members generally drive a crane less than 2 hours a day and have low crash rates.

    Public Comments

    FMCSA published the SC&RA exemption application for comment on March 16, 2016 (81 FR 14052). The Agency received 13 comments, most supporting the exemption. These commenters asserted that crane operators actually drive very little on public roads, and thus are less likely to suffer from driving fatigue than long-haul CMV drivers. Commenters also described the typical duty day of crane operators at the work site, and pointed out that there are substantial periods when they have to wait for others to complete preparations for the lift. These commenters also described the relatively short distances cranes are driven on public roads at the beginning and end of the day. NationsBuilders Insurance Services, Inc. commented that the drive unit of a crane generally logs only 60,000 miles in 9 years.

    Commenters opposing the exemption suggest that motor carriers could avoid or ameliorate their scheduling difficulties by employing a second crane driver. Advocates for Highway and Auto Safety (Advocates) found the application for exemption fatally deficient because it “fails to include any analysis of the safety impacts of the requested exemption.” Advocates also stated that SC&RA ignored the requirement that it “carefully review the regulation to determine whether there are any practical alternatives already available” that would allow it to conduct its operations and comply with the HOS rules. Advocates also believes that SC&RA carriers could overcome the numerous variables affecting these operations by stronger management of their CMV fleets.

    FMCSA Decision

    FMCSA has evaluated SC&RA's application and the public comments and has decided to grant an exemption from the 30-minute rule but to deny an exemption from the 14-hour rule. The Agency believes that the exempt crane drivers will likely achieve a level of safety that is equivalent to or greater than, the level of safety achieved without the exemption [49 CFR 381.305(a)]. The schedules of these CMV drivers are characterized by daytime hours, low-stress periods of waiting during the workday, and very limited hours of actual driving on public roads. In addition, these loads are sometimes escorted by other vehicles and operate at low speeds.

    The unpredictable workday of a mobile-crane operator, with its frequent interruptions and down time, reduces the risk of cumulative fatigue and thus the urgency of a 30-minute break. Providing an exemption from the break will also reduce the number of situations where a crane operator has to park at roadside midway through a move between job sites in order to comply with the 30-minute break rule. The Agency is concerned with parking shortages, especially for very large vehicles. It is highly undesirable to have cranes parked on the shoulders of highways, much less extending into the travel lanes. No matter how well marked, trucks parked at roadside, especially at night, are too easily mistaken for moving vehicles and struck at full speed, with serious consequences.

    However, the Agency is not granting exemption from the 14-hour rule. The absence of this limit would allow drivers to operate without any restriction on the length of their duty day. The risk that safety would deteriorate in the absence of this requirement is high. While we agree that the 30-minute break rule is unnecessarily restrictive for operators of large mobile cranes, the 14-hour window is far less restrictive. It is a critical factor in containing fatigue that might otherwise develop. The 14-hour rule is a limit that should be built into the planning of mobile crane operations.

    For these reasons, the Agency grants an exemption from the 30-minute rest-break requirement, subject to the terms and conditions in this Federal Register notice, but denies an exemption from the 14-hour rule.

    Terms of the Exemption

    1. All motor carriers and drivers operating mobile cranes with a rated lifting capacity of greater than 30 tons are exempt from the 30-minute break requirement of 49 CFR 395.3(a)(3)(ii). The lifting capacity of the crane must be displayed on a manufacturer's certification plate on the crane or in manufacturer's documentation carried on the vehicle.

    2. Drivers must have a copy of this exemption document in their possession while operating under the terms of the exemption. The exemption document must be presented to law enforcement officials upon request.

    3. Motor carriers operating under this exemption must have a “Satisfactory” safety rating with FMCSA, or be “Unrated.” Motor carriers with “Conditional” or “Unsatisfactory” FMCSA safety ratings are prohibited from using this exemption.

    Period of the Exemption

    This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is granted for the period from 12:01 a.m., November 1, 2016 through 11:59 p.m., November 1, 2018.

    Extent of the Exemption

    This exemption is limited to the provisions of 49 CFR 395.3(a)(3)(ii). These motor carriers and drivers must comply with all other applicable provisions of the FMCSRs.

    Preemption

    In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable to interstate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption. States may, but are not required to, adopt the same exemption with respect to operations in intrastate commerce.

    Notification to FMCSA

    Any motor carrier utilizing this exemption must notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMV drivers operating under the terms of this exemption. The notification must include the following information:

    a. Name of Exemption: “SC&RA cranes”

    b. Name of operating motor carrier and USDOT number,

    c. Date of the accident,

    d. City or town, and State, in which the accident occurred, or closest to the accident scene,

    e. Driver's name and license number and State of issuance

    f. Vehicle number and State license plate number,

    g. Number of individuals suffering physical injury,

    h. Number of fatalities,

    i. The police-reported cause of the accident,

    j. Whether the driver was cited for violation of any traffic laws or motor carrier safety regulations, and

    k. The driver's total driving time and total on-duty time prior to the accident.

    Reports filed under this provision shall be emailed to [email protected]

    Termination

    FMCSA believes motor carriers conducting crane operations under this exemption will continue to maintain their safety record while operating under this exemption. However, should safety be compromised, FMCSA will take all steps necessary to protect the public interest, including revocation or restriction of the exemption. The FMCSA will immediately revoke or restrict the exemption for failure to comply with its terms and conditions.

    Issued on: October 20, 2016. T.F. Scott Darling, III, Administrator.
    [FR Doc. 2016-26333 Filed 10-31-16; 8:45 am] BILLING CODE 4910-EX-P
    NATIONAL TRANSPORTATION SAFETY BOARD 49 CFR Parts 800, 803, and 804 [Docket No.: NTSB-GC-2017-001] RIN 3147-AA03, 3147-AA08, 3147-AA09 Administrative Rules; Official Seal; Rules Implementing the Government in the Sunshine Act AGENCY:

    National Transportation Safety Board (NTSB).

    ACTION:

    Final rule.

    SUMMARY:

    The NTSB makes technical updates and corrects citations in its administrative regulations governing agency organization and functions, delegations of authority to staff members, and procedures for adopting rules, regulations governing the agency's official seal, and regulations implementing the Government in the Sunshine Act. These revisions make no substantive changes.

    DATES:

    This rule is effective November 1, 2016.

    ADDRESSES:

    A copy of this Final Rule, published in the Federal Register (FR), is available for inspection and copying in the NTSB's public reading room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-2003. Alternatively, a copy is available on the government-wide Web site on regulations at http://www.regulations.gov (Docket ID Number NTSB-GC-2017-001).

    FOR FURTHER INFORMATION CONTACT:

    Matthew D. McKenzie, Attorney-Advisor, (202) 314-6080, [email protected].

    SUPPLEMENTARY INFORMATION: I. Legal Basis for the Final Rule

    The Administrative Procedure Act (APA), 5 U.S.C. 553, provides exceptions to its notice and public comment rulemaking procedures where (1) the rules are rules of agency organization, procedure, or practice; or (2) the agency finds there is good cause to forego notice and comment, and incorporates the finding and a brief statement of reasons therefore in the rule issued. Generally, good cause exists where the agency determines that notice and public comment procedures are impractical, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b).

    Parts 800, 803, and 804 govern internal agency organization, procedure, or practice. Part 800, subparts A and B, describes the organization of the agency. Part 800, subpart C, prescribes procedures for the agency's rulemakings. Part 803 describes the agency's seal and limits its use. Part 804 prescribes procedures for the agency's open meetings.

    The amendments made in this final rule merely correct inadvertent errors and omissions, remove obsolete references, and make minor editorial changes to improve clarity and consistency. The technical amendments do not impose any new requirements, nor do they make any substantive changes to the Code of Federal Regulations. For these reasons, the NTSB finds good cause that notice and public comment on this final rule are unnecessary. For these same reasons, this rule will be effective on the date of publication in the Federal Register.

    II. Background

    On June 25, 2012, the NTSB announced its plan to review its regulations, 49 CFR parts 800 through 850, to comply with Executive Order (E.O.) 13563, Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011); E.O. 13579, Regulation and Independent Regulatory Agencies, 76 FR 41587 (July 11, 2011); and E.O. 13610, Identifying and Reducing Regulatory Burdens, 77 FR 28469 (May 14, 2012). NTSB Plan for Retrospective Analysis of Existing Rules, 77 FR 37865. Though the Executive Orders require retrospective review of only “significant regulations,” NTSB stated it would review all of its regulations to implement the principles in the Orders. Id. at 37867.

    On January 8, 2013, after reviewing its regulations, the NTSB announced its plan to update its regulations, including revising internal agency procedures for which no public comment was required. Retrospective Analysis of Existing Rules; Notification, 78 FR 1193, 1194.

    Pursuant to that plan, in this Final Rule, the NTSB makes editorial improvements and corrects obsolete information and citations in parts 800 (Administrative Rules), 803 (Official Seal), and 804 (Rules Implementing the Government in the Sunshine Act).

    III. Regulatory Analysis

    This rule does not require an assessment of its potential costs and benefits under section 6(a)(3) of E.O. 12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993), because it is not a “significant regulatory action” under section 3(f) of that Order. Thus, the Office of Management and Budget has not reviewed this rule under E.O. 12866. Likewise, this rule does not require an analysis under the Unfunded Mandates Reform Act, 2 U.S.C. 1501-71, or the National Environmental Policy Act, 42 U.S.C. 4321-47.

    In addition, under the Regulatory Flexibility Act, 5 U.S.C. 601-12, the NTSB has considered whether this rule would have a significant economic impact on a substantial number of small entities. The NTSB certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this certification to the Chief Counsel for Advocacy at the Small Business Administration.

    Moreover, the NTSB does not anticipate this rule will have a substantial, direct effect on state or local governments or will preempt state law; as such, this rule does not have implications for federalism under E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999).

    This rule also complies with all applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996), to minimize litigation, eliminate ambiguity, and reduce burden.

    NTSB has evaluated this rule under: E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, 53 FR 8859 (Mar. 15, 1988); E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 62 FR 19885 (Apr. 21, 1997); E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000); E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 18, 2001); and the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has concluded that this Final Rule neither violates, nor requires further consideration under, those Orders and statutes.

    List of Subjects 49 CFR Part 800

    Administrative practice and procedure, Authority delegations (Government agencies), Government employees, Organization and functions (Government agencies).

    49 CFR Part 803

    Seals and insignia.

    49 CFR Part 804

    Sunshine Act.

    For the reasons stated in the preamble, the National Transportation Safety Board amends 49 CFR parts 800, 803, and 804 as set forth below:

    PART 800—ADMINISTRATIVE RULES 1. The authority citation for part 800 is revised to read as follows: Authority:

    49 U.S.C. 1101 et seq.; 49 U.S.C.40101 et seq.

    Subpart A—Organization and functions
    § 800.1 [Amended]
    1. Amend § 800.1 by removing “part” and adding in its place “subpart”.
    § 800.2 [Amended]
    2. Amend § 800.2 as follows: a. In the introductory text, remove “the Federal Aviation Act of 1958, as amended (49 U.S.C. 40101 et seq.), and the Independent Safety Board Act of 1974, as amended (49 U.S.C. 1101 et seq.)” and add in its place “49 U.S.C. chapter 11”. b. In paragraph (d), remove “the Federal Aviation Act of 1958, as amended” and add in its place “49 U.S.C. 1133”. 3. Revise § 800.3 to read as follows:
    § 800.3 Functions.

    (a) The primary function of the Board is to promote safety in transportation. The Board is responsible for the investigation, determination of facts, conditions, and circumstances and the cause or probable cause or causes of:

    (1) All accidents involving civil aircraft, and certain public aircraft;

    (2) Highway accidents, including railroad grade-crossing accidents, the investigation of which is selected in cooperation with the States;

    (3) Railroad accidents in which there is a fatality, substantial property damage, or which involve a passenger train;

    (4) Pipeline accidents in which there is a fatality, significant injury to the environment, or substantial property damage; and

    (5) Major marine casualties and marine accidents involving a public and a non-public vessel or involving Coast Guard functions.

    (b) The Board makes transportation safety recommendations to federal, state, and local agencies and private organizations to reduce the likelihood of transportation accidents. It initiates and conducts safety studies and special investigations on matters pertaining to safety in transportation, assesses techniques and methods of accident investigation, evaluates the effectiveness of transportation safety consciousness and efficacy of other Government agencies, and evaluates the adequacy of safeguards and procedures concerning the transportation of hazardous materials.

    (c) Upon application of affected parties, the Board reviews in quasijudicial proceedings, conducted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq., denials by the Administrator of the Federal Aviation Administration of applications for airman certificates and orders of the Administrator modifying, amending, suspending, or revoking certificates or imposing civil penalties. The Board also reviews on appeal the decisions of the head of the agency in which the U.S. Coast Guard is operating, on appeals from orders of administrative law judges suspending, revoking, or denying seamen licenses, certificates, or documents.

    (d) The Board, as provided in part 801 of this chapter, issues reports and orders pursuant to its duties to determine the cause or probable cause or causes of transportation accidents and to report the facts, conditions and circumstances relating to such accidents; issues opinions and/or orders in accordance with 49 U.S.C. 1133 after reviewing on appeal the imposition of a civil penalty or the suspension, amendment, modification, revocation, or denial of a certificate or license issued by the Secretary of the Department of Transportation (who acts through the Administrator of the Federal Aviation Administration) or by the Commandant of the United States Coast Guard; and issues and makes available to the public safety recommendations, safety studies, and reports of special investigations.

    § 800.4 [Amended]
    4. Amend § 800.4 as follows: a. In paragraph (b), removing “Government Printing Office” and adding in its place “Government Publishing Office”. b. In paragraph (e), adding “, or the Commandant of the United States Coast Guard” after “Department of Transportation”.
    § 800.5 [Amended]
    5. Amend § 800.5 by adding “-003” after “20594”. Subpart B—Delegations of Authority to Staff Members
    § 800.21 [Amended]
    6. Amend § 800.21 by removing “Subpart B” and adding in its place “subpart”.
    § 800.22 [Amended]
    7. Amend § 800.22(a)(2) by removing “sections 304(a)(2) and 307 of the Independent Safety Board Act of 1974 (49 U.S.C. 1131(d) and 1135(c))” adding in its place “49 U.S.C. 1131(e), 1135(c)”.
    § 800.24 [Amended]
    8. Amend § 800.24(f) by removing “the Independent Safety Board Act of 1974, as amended,” adding in its place “49 U.S.C. chapter 11, subchapter IV,”.
    § 800.25 [Amended]
    9. Amend § 800.25 as follows: a. In paragraph (c), removing “§ 845.41 of this Chapter” adding in its place “§ 845.32 of this chapter”. b. In paragraph (d), removing “§ 304(a) of the Independent Safety Board Act of 1974, as amended (49 U.S.C. 1131(a)) and the Appendix to this Part” adding in its place “49 U.S.C. 1131 and the appendix to this part”.
    § 800.26 [Amended]
    10. Amend § 800.26 by removing “board” and adding in its place “Board”.
    § 800.27 [Amended]
    11. Amend § 800.27 by removing “of the Safety Board”. Subpart C—Procedures for Adoption of Rules
    § 800.30 [Amended]
    12. Amend § 800.30 by removing “1101-1155” and adding in its place “1113(f)”.
    § 800.31 [Amended]
    13. Amend § 800.31 by removing “deemed relevant by the NTSB relating to rulemaking” and adding in its place “relevant to NTSB rulemaking”.
    § 800.33 [Amended]
    14. Amend § 800.33 by removing “551” and adding in its place “553”.
    § 800.35 [Amended]
    15. Amend § 800.35(a) by: a. Removing “in rulemaking” and adding in its place “in a rulemaking”; and b. Removing “comments in writing containing” adding in its place “written comments,”.
    § 800.41 [Amended]
    16. Amend § 800.41 by removing “unless all persons subject to it are named and are personally served with a copy of it”. PART 803—OFFICIAL SEAL 17. The authority citation for part 803 is revised to read as follows: Authority:

    49 U.S.C. 1111(j), 1113(f).

    § 803.3 [Amended]
    18. Amend § 803.3 by removing “Bureau” everywhere it appears and adding in its place “Office”.
    § 803.5 [Amended]
    19. Amend § 803.5(c) by: a. Removing “Bureau” and adding in its place “Office”; b. Removing “800 Independence Avenue” and adding in its place “490 L'Enfant Plaza”; and c. Adding “-003” after “20594”. PART 804—RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT 20. The authority citation for part 804 is revised to read as follows: Authority:

    5 U.S.C. 552b; 49 U.S.C. 1113(f).

    § 804.1 [Amended]
    21. Amend § 804.1(b) by removing “the NTSB regulations (49 CFR part 801)” and adding in its place “this chapter”. 22. Revise § 804.5(d) to read as follows:
    § 804.5 Ground on which meetings may be closed or information may be withheld.

    (d) Disclose trade secrets or privileged or confidential commercial or financial information obtained from a person;

    § 804.6 [Amended]
    23. Amend § 804.6(b) by: a. Removing “800 Independence Avenue” and adding in its place “490 L”Enfant Plaza”; and b. Adding “-003” after “20594”.
    § 804.7 [Amended]
    24. Amend § 804.7(b)(2) by removing “be” and adding in its place “is”.
    § 804.10 [Amended]
    25. Amend § 804.10 by removing “the NTSB shall maintain” and adding in its place “The NTSB shall maintain”. David Tochen, General Counsel.
    [FR Doc. 2016-26232 Filed 10-31-16; 8:45 am] BILLING CODE 7533-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151215999-6960-02] RIN 0648-BF64 Fisheries of the Northeastern United States; Atlantic Herring Fishery; Specification of Management Measures for Atlantic Herring for the 2016-2018 Fishing Years AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS is implementing final specifications and management measures for the 2016-2018 Atlantic herring fishery. This action sets harvest specifications and river herring/shad catch caps for the herring fishery for the 2016-2018 fishing years, as recommended to NMFS by the New England Fishery Management Council. The river herring/shad catch caps are area and gear-specific. River herring and shad catch from a specific area with a specific gear counts against a cap for trips landing more than a minimum amount of herring. The specifications and management measures in this action meet conservation objectives while providing sustainable levels of access to the fishery.

    DATES:

    Effective December 1, 2016.

    ADDRESSES:

    Copies of supporting documents used by the New England Fishery Management Council, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, telephone (978) 465-0492. The EA/RIR/IRFA is also accessible via the Internet at http://www.greateratlantic.fisheries.noaa.gov/.

    FOR FURTHER INFORMATION CONTACT:

    Shannah Jaburek, Fishery Management Specialist, (978) 282-8456, fax (978) 281-9135.

    SUPPLEMENTARY INFORMATION: Background

    NMFS published a proposed rule for the 2016-2018 specifications on June 21, 2016 (81 FR 40253). The comment period on the proposed rule ended on July 21, 2016. NMFS received 32 comments, which are summarized in the “Comments and Responses” section of this final rule.

    Regulations implementing the Atlantic Herring Fishery Management Plan (FMP) appear at 50 CFR part 648, subpart K. Regulations at § 648.200 require NMFS to make final determinations on the herring specifications recommended by the New England Fishery Management Council in the Federal Register, including: The overfishing limit (OFL); acceptable biological catch (ABC); annual catch limit (ACL); optimum yield (OY); domestic annual harvest (DAH); domestic annual processing (DAP); U.S. at-sea processing (USAP); border transfer (BT); management area sub-ACLs; and the amount to be set aside for the research set aside (RSA) (up to 3 percent of any management area sub-ACL) for 3 years. These regulations also allow for river herring/shad catch caps to be developed and implemented as part of the specifications. The 2016-2018 herring specifications are consistent with these provisions, and provide the necessary elements to comply with the ACL and accountability measure (AM) requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Complete details on the development of the herring specifications and river herring/shad catch caps were included in the proposed rule; NMFS has not repeated that information here.

    Herring Specifications Table 1—Atlantic Herring Specifications 2016-2018 Atlantic Herring Specifications—2016-2018 (mt) Overfishing Limit 138,000-2016.
  • 117,000-2017.
  • 111,000-2018.
  • Acceptable Biological Catch 111,000. Management Uncertainty 6,200. Optimum Yield/ACL 104,800.* Domestic Annual Harvest 104,800. Border Transfer 4,000. Domestic Annual Processing 100,800. U.S. At-Sea Processing 0. Area 1A Sub-ACL 30,300.* Area 1B Sub-ACL 4,500. Area 2 Sub-ACL 29,100. Area 3 Sub-ACL 40,900. Fixed Gear Set-Aside 295. Research Set-Aside 3 percent of each sub-ACL. * If New Brunswick weir fishery catch through October 1 is less than 4,000 mt, then 1,000 mt will be subtracted from the management uncertainty buffer and added to the ACL and Area 1A Sub-ACL.

    An operational update to the herring stock assessment, completed in May 2015, indicated that herring was not overfished and overfishing was not occurring. However, the assessment contained a retrospective pattern suggesting that spawning stock biomass (SSB) is likely overestimated and fishing mortality (F) is likely underestimated. Following an adjustment for the retrospective pattern, the assessment estimated the herring stock at approximately double its target biomass (SSBMSY) and F at approximately half the fishing mortality threshold (FMSY).

    The herring ABC of 111,000 mt (a 3-mt decrease from status quo) for 2016-2018 is based on the current control rule (constant catch with 50-percent probability that F > FMSY in last year) and is consistent with the Council's Scientific and Statistical Committee's (SSC) advice. The OFL is 138,000 mt in 2016, 117,000 mt in 2017, and 111,000 mt in 2018. While the ABC control rule does not explicitly adjust for herring's role in the ecosystem, herring's high biomass (approximately 74 percent of unfished biomass) and low fishing mortality (ratio of catch to consumption by predators is 1:4) likely achieves ecosystem goals, including accounting for herring's role as forage. The herring ABC is typically reduced from the OFL to account for scientific uncertainty. Using the current constant catch control rule means that the ABC will equal the OFL in 2018. When the SSC considered the ABC of 111,000 mt, it concluded that the probability of the stock becoming overfished during 2016-2018 is near zero. Further, this final rule is consistent with the status quo specifications that set ABC equal to OFL in 2015 and overfishing did not occur.

    Under the FMP, the herring ACL is reduced from ABC to account for management uncertainty, and the primary source of management uncertainty is catch in the New Brunswick weir fishery. Catch in the weir fishery is variable, but has declined in recent years. This final rule implements a management uncertainty buffer of 6,200 mt, which is equivalent to the value of the buffer in 2015. To help ensure catch in the New Brunswick weir fishery does not exceed the management uncertainty buffer, NMFS specifies a buffer greater than the most recent 3-year and 5-year average catch in the New Brunswick weir fishery. The resulting stockwide ACL will be 104,800 mt.

    Given the variability of the New Brunswick weir catch and the likelihood that weir catch may be less than 6,200 mt, NMFS also specifies a New Brunswick weir fishery payback provision. Specifically, NMFS will subtract 1,000 mt from the management uncertainty buffer and add it to the ACL if the weir fishery harvests less than 4,000 mt by October 1. The 1,000 mt added to the ACL would also increase the sub-ACL for Herring Management Area 1A. NMFS selects the October 1 date to trigger the payback provision for two reasons. First, there is typically only minimal catch in the New Brunswick weir fishery after October 1 (less than four percent of total reported landings from 1978 to 2014) so the likelihood of weir catch exceeding the management uncertainty buffer after October 1 is low. Second, adding 1,000 mt to the Area 1A sub-ACL in October is expected to allow herring vessels to access the additional harvest before catch in the herring fishery is limited in Area 1A. NMFS implements a 2,000-lb (907-kg) herring possession limit in Area 1A when it projects that 92 percent the sub-ACL has been harvested. If New Brunswick weir catch is less than 4,000 mt by October 1, the management uncertainty buffer will be reduced to 5,200 mt, the ACL will be increased to 105,800 mt, and the Herring Management Area 1A sub-ACL will be increased to 31,300 mt. The New Brunswick weir fishery payback provision was last in effect during fishing years 2010-2012, so this final rule puts the payback provision back in place for 2016-2018. NMFS is currently awaiting final data to decide whether or not to subtract 1,000 mt from the management uncertainty buffer and increase the ACL and the Area 1A sub-ACL.

    BT is a processing allocation available to Canadian dealers. The MSA provides for the issuance of permits to Canadian vessels transporting U.S.-harvested herring to Canada for sardine processing. The amount specified for BT has equaled 4,000 mt since 2000. As there continues to be interest in transporting herring to Canada for sardine processing, NMFS maintains BT at 4,000 mt.

    The Atlantic Herring FMP specifies that DAH will be set less than or equal to OY and be composed of DAP and BT. DAP is the amount of U.S. harvest that is processed domestically, as well as herring that is sold fresh (i.e., bait). DAP is calculated by subtracting BT from DAH. DAH should reflect the actual and potential harvesting capacity of the U.S. herring fleet. Since 2001, total landings in the U.S. fishery have decreased, but herring catch has remained somewhat consistent from 2003-2014, averaging 91,925 mt. When previously considering the DAH specification, the Council evaluated the harvesting capacity of the directed herring fleet and determined that the herring fleet is capable of fully utilizing the available yield from the fishery. This determination is still true. NMFS therefore sets DAH at 104,800 mt and DAP at 100,800 mt for the 2016-2018 fishing years in this final rule.

    A portion of DAP may be specified for the at-sea processing of herring in Federal waters. When determining this USAP specification, the Council considered the availability of shore-side processing, status of the resource, and opportunities for vessels to participate in the herring fishery. During the 2007-2009 fishing years, the Council maintained a USAP specification of 20,000 mt (Herring Management Areas 2/3 only) based on information received about a new at-sea processing vessel that intended to utilize a substantial amount of the USAP specification. At that time, landings from Areas 2 and 3-where USAP was authorized-were considerably lower than recent sub-ACLs for Areas 2 and 3. Moreover, the specification of 20,000 mt for USAP did not restrict either the operation or the expansion of the shoreside processing facilities during the 2007-2009 fishing years. However, this operation never materialized, and none of the USAP specification was used during the 2007-2009 fishing years. Consequently, NMFS set USAP at zero for the 2010-2015 fishing years. Lacking any additional information that would support changing this specification, NMFS maintains the USAP at zero for fishing years 2016-2018.

    The herring ABC specification recommended by the SSC for 2016-2018 is not substantially different from the 2013-2015 ABC specification because, in part, key attributes of the herring stock (SSB, recruitment, F, and survey indices) have not significantly changed since the 2013-2015 herring specifications. Therefore, NMFS determined that there is no new information on which to modify the allocation of the total ACL between the herring management areas. This final rule maintains status quo percentage allocations for the herring sub-ACLs for the 2016-2018 specifications. The resulting sub-ACLs are slightly lower than 2013-2015 specifications (see Table 1).

    NMFS maintains the 2016-2018 RSA specification at 3 percent of each herring management area sub-ACL. The herring RSA is removed from each sub-ACL prior to allocating the sub-ACL to the fishery. If an RSA proposal is approved, but a final award is not made by NMFS, or if NMFS determines that the RSA cannot be utilized by a project, NMFS shall reallocate the unallocated or unused amount of the RSA to the respective sub-ACL. On February 29, 2016, NMFS fully awarded the herring RSA for fishing years 2016-2018.

    Herring regulations at § 648.201(e) specify that up to 500 mt of the Herring Management Area 1A sub-ACL shall be allocated for the fixed gear fisheries (weirs and stop seines) in Area 1A that occur west of 67°16.8′ W. long. This set-aside shall be available for harvest by the fixed gear fisheries within Area 1A until November 1 of each year; any unused portion of the allocation will be restored to the Area 1A sub-ACL after November 1. During the 2013-2015 fishing years, the fixed gear set-aside was specified at 295 mt. Because the proposed Area 1A sub-ACL for the 2016-2018 fishing years is not substantially different from the Area 1A sub-ACL in 2015, NMFS maintains the fixed gear set-aside at 295 mt.

    River Herring/Shad Catch Caps

    Framework 3 to the Atlantic Herring FMP established gear and area-specific river herring/shad catch caps for the herring fishery in 2014. These included catch caps for midwater trawl vessels fishing in the Gulf of Maine, off Cape Cod, and in Southern New England, as well as for small-mesh bottom trawl vessels fishing in Southern New England. The caps are intended to minimize river herring and shad bycatch and bycatch mortality to the extent practicable while allowing the herring fishery an opportunity to fully harvest the herring ACL. The incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. Herring regulations at § 648.201(a)(4)(ii) state that once 95 percent of a catch cap is harvested, the herring possession limit for vessels using that gear type and fishing in that area is reduced to 2,000 lb (907 kg) for the remainder of the fishing year. Once a 2,000-lb (907-kg) possession limit is in effect for a particular gear and area, the herring fishery's ability to harvest the herring sub-ACL associated with that area is limited. The herring fleet's avoidance of river herring and shad combined with the catch caps are expected to minimize river herring and shad bycatch and bycatch mortality. Additionally, the herring fishery is expected to be able to harvest the herring ACL, provided the fishery continues to avoid river herring and shad.

    As noted in Framework 3, available data are not robust enough to specify biologically-based catch caps that reflect river herring and shad abundance or to evaluate the potential impacts of catch caps on the river herring and shad stocks. Specific biological impacts on river herring and shad are influenced by fishing activity, environmental factors, climate change, restoration efforts, and other factors. In the absence of sufficient data to specify biologically-based catch caps, the caps have been set using recent river herring and shad catch data with the intent of keeping catch below its highest levels to limit fishing mortality on river herring and shad. Limiting fishing mortality is expected to result in positive impacts on the stocks.

    To date the values of the caps have been specified using the median catch of river herring and shad catch over the previous 5 years (2008-2012). The 2016-2018 river herring/shad catch caps, as specified below in Table 2, are calculated using a revised methodology and updated data over a longer time period. The revised methodology uses a weighted mean catch of river herring and shad (versus median catch). This methodology better accounts for the inter-annual variability in the level of sampling by both observers and portside samplers by weighting years with higher sampling levels more heavily than years with lower sampling levels. Additionally, the revised methodology includes previously omitted catch data, including some shad landings and trips from catch cap areas where trips did not meet the 6,600-lb (3-mt) herring landing threshold, and updated extrapolation methodology (using sampled trips to estimate catch on unsampled trips). Lastly, by using a longer time series (the most recent 7 years versus 5 years), the value of the caps can be based on more data, especially the most recent catch information, to better ensure the catch caps reflect the herring fishery's interactions with river herring and shad and overall fishing effort.

    NMFS determined that using a longer time series, including more recent and previously omitted data, as well as using a weighted mean to generate the values for river herring/shad catch caps is consistent with using the best available science. Setting cap amounts using recent catch data better reflects current fishing behavior and catch levels. Similarly, relying more heavily on years with higher levels of sampling should provide cap values that more precisely reflect recent catch. Additionally, catch data may indirectly reflect stock abundance. For example, increases in stock abundance may potentially result in increased incidental catch whereas decreases in abundance may result in decreased incidental catch. Therefore, setting catch cap amounts based on catch data are expected to result in catch caps that are more consistent with current fishing activity, and possibly stock conditions, while balancing the incentive to avoid river herring and shad against the opportunity for the herring fishery to harvest the ACL.

    NMFS is adjusting the river herring/shad catch caps to reflect the use of best available scientific data and a revised, superior methodology. This adjustment increases the catch caps for three of the four river herring/shad catch caps in the herring fishery. Based on fishing practices to date, however, NMFS expects river herring and shad catch to remain below the catch cap amounts. For example, the herring industry currently has harvested only 57 percent of the total river herring and shad catch allowed under the 2015 river herring/shad catch caps. Because river herring and shad catch is currently well below allowable catch limits, NMFS does not expect that any catch cap increases implemented in this action will result in a substantial increase in river herring and shad catch. Rather, NMFS anticipates that the 2,000-lb (907-kg) herring possession limit that will result if a cap is harvested will continue to provide a strong incentive for the herring industry to avoid catching river herring and shad and that the herring industry will continue to harvest less than the river herring and shad catch allowed under the adjusted catch caps.

    Table 2—River Herring/Shad Catch Caps Area Gear Amount
  • (mt)
  • 2016-2018 River Herring/Shad Catch Caps Gulf Of Maine Midwater Trawl 76.7 Cape Cod Midwater Trawl 32.4 Southern New England/Mid-Atlantic Midwater Trawl 129.6 Southern New England/Mid-Atlantic Bottom Trawl 122.3 Total All Gears 361.0
    Comments and Responses

    NMFS received 32 comment letters on the proposed rule: 9 from interested members of the public; 3 from herring industry participants; 2 from other fishing industry participants (Massachusetts Lobstermen's Association (MLA) and the Cape Cod Commercial Fishermen's Alliance); 4 from local watershed groups (Jones River, Ipswich River, Mystic River, and the Herring Ponds Watershed Associations); and 12 from non-governmental organizations (NGOs), including 6 prominent environmental advocacy groups (Conservation Law Foundation, Earth Justice, the Herring Alliance, Save the Bay-Narragansett, the Mohegan Tribe, and Alewife Harvesters of Maine). Two of the environmental advocacy group comments were form letters that contained signatures and personalized comments, including: A letter from PEW Charitable Trusts with 10,593 signatures and 931 personalized comments; and a letter from Earth Justice with 2,298 signatures and 234 personalized comments.

    Comment 1: Three herring fishery participants and the MLA commented in support of the proposed 2016-2018 herring specifications and river herring/shad caps.

    Response: NMFS approved the 2016-2018 herring specifications and river herring/shad catch caps because they promote achieving optimal yield, fishery conservation, are based upon best available science, and are consistent with the goals and objectives of the Atlantic Herring FMP.

    Comment 2: The Cape Cod Commercial Fishermen's Alliance, Jones River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth Justice opposed setting the ABC equal to the OFL in 2018. Their comments claimed that the 2018 ABC does not adequately account for scientific uncertainty. Earth Justice commented that NMFS could revise the specifications to account for scientific uncertainty in a number of ways. They suggested NMFS could implement ABCs in 2017 and 2018 with the same scientific uncertainty buffer that was set for 2016 (27,000 mt) or implement the 2017 scientific uncertainty buffer (6,000 mt) in 2018. They further commented that NMFS could request advice from the SSC for an appropriate buffer in 2018. Additionally, the Herring Alliance, Mohegan Tribe, and Earth Justice commented that NMFS should use its authority to implement a revised ABC that appropriately buffers for scientific uncertainty in 2018.

    Response: NMFS disagrees. The recent herring stock assessment update completed in May 2015 contained a retrospective pattern suggesting that the spawning stock biomass (SSB) is likely overestimated and fishing mortality (F) is likely underestimated. The assessment was adjusted to account for the retrospective pattern. Even with the adjustment to account for the scientific uncertainty associated with the retrospective pattern, the assessment estimated the herring stock at approximately double its target biomass (SSBMSY) and F is approximately half the fishing mortality threshold (FMSY). The stock assessment update generated catch projections for 2016-2018 based on the constant catch control rule. When the SSC evaluated the resulting ABC, it supported the resulting ABC and did not recommend specifying a scientific uncertainty buffer between OFL and ABC in 2018. Because the recent stock assessment update adjusted for scientific uncertainty and the SSC did not recommend that an additional scientific uncertainty buffer be specified for 2018, NMFS implements an ABC that equals OFL in 2018.

    Comment 3: The Cape Cod Commercial Fishermen's Alliance, Jones River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth Justice opposed setting the ABC equal to the OFL in 2018. Their comments noted that this introduces unnecessary risk of overfishing.

    Response: NMFS disagrees. Herring are currently not overfished and overfishing is not occurring. While setting the ABC equal to the OFL in 2018 has a 50-percent probability of overfishing in 2018, the overall probability of overfishing herring during 2016-2018 is near zero. In addition, the realized catch in the fishery is generally well below ABC, further reducing the likelihood of overfishing. Lastly, setting the ABC equal to OFL in 2018 would continue to provide the herring fishery with some economic stability, an important consideration in the Council's harvest risk policy.

    Comment 4: The Herring Alliance, Mohegan Tribe, and Earth Justice oppose using the current constant catch control rule because it does not adjust the ABC to explicitly account for herring's role as forage in the ecosystem and recommend that NMFS consider further reductions in ABC.

    Response: NMFS disagrees. When generating ABC catch projections for 2016-2018, the 2015 stock assessment update adjusted for predator consumption of herring by maintaining a relatively high natural mortality rate. Additionally, the recent stock assessment update indicated that herring has a high biomass (approximately 74 percent of unfished biomass) and low fishing mortality (ratio of catch to consumption by predators is 1:4). The constant catch ABC control rule is expected to maintain the high herring biomass, bolstered by two very large year classes, and low fishing mortality. Thus, the ABC control rule should meet forage demands and maintain a biomass level consistent with forage-based control rules in the short-term while the Council continues its consideration of herring's role as forage in Amendment 8 to the Atlantic Herring FMP. For these reasons, NMFS concludes that the current constant control rule, as well as the associated ABC, sufficiently account for herring's role as forage in the ecosystem during 2016-2018.

    Comment 5: Earth Justice commented that the ABC was not selected as part of a reasonable range of alternatives as required by the National Environmental Policy Act (NEPA) because none of the alternatives accounted for scientific uncertainty in 2018. They also stated that the EA acknowledged this lack of uncertainty buffer is not consistent with the best available science.

    Response: NFMS disagrees. As described above, the ABC sufficiently accounts for scientific uncertainty. The Council developed three ABC alternatives and fully analyzed them in the EA supporting this action. NEPA requires a Federal agency to consider a range of alternatives, and that the alternatives are reasonable alternatives (i.e., those that meet the stated purpose and need, and objectives, for the action). The SSC recommended that the ABC for 2016-2018 remain relatively similar or modestly reduced compared to status quo. Consistent with SSC advice, the range of ABC alternatives considered in the EA were similar but reduced from status quo. For the status quo alternative, the EA cautioned that setting ABC equal to OFL for all three years appears to be inconsistent with best available science. The EA also explained that the ABC implemented in this action is more precautionary and expected to have more positive impacts than the status quo ABC because the scientific uncertainty buffer between the OFL and ABC during 2016 and 2017 results in a lower risk of overfishing. For these reasons, NMFS has determined that the range of ABC alternatives considered in this action was sufficient and consistent with the requirements of NEPA.

    Comment 6: One member of the public commented that the herring ACL should be decreased to 90,000 mt.

    Response: NMFS disagrees. The commenter provided no basis for setting the ACL at 90,000 mt. The most recent stock assessment update indicated herring was not overfished and overfishing was not occurring. Setting specifications always requires a balance between conservation and harvesting opportunity. The most current data show that an ABC of 111,000 mt would have a low positive economic impact on fishery-related businesses and communities while equaling less than half a sustainable fishery morality rate.

    Comment 7: The Alewife Harvesters of Maine commented in favor of the proposed decrease of the Gulf of Maine river herring/shad catch cap. It also commented in support of using the revised methodology with the longer time series and weighted mean, however, it “would propose a more gentle increase in catch cap that accounts for the biological uncertainty, raising the cap to the full weighted mean estimate over the course of several years.”

    Response: NMFS agrees with the Alewife Harvesters of Maine that using a longer time series and weighted mean is appropriate to calculate river herring/shad catch caps. But NMFS disagrees with the suggestion that the value of the cap, rather than the methodology, should be the primary consideration when setting catch caps. The catch cap methodology uses the best available science to reflect recent fishing behavior and recent catch levels. Without a reasonable basis for developing different methodologies for each area or gear type, the methodology used to calculate one catch cap should apply to all catch caps.

    Comment 8: Five interested members of the public, six state and local advocacy groups, all four river watershed associations, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice on behalf of numerous U.S. citizens expressed concern that raising the river herring/shad catch caps will set back ongoing efforts by the states and local advocacy groups to restore river herring and shad to sustainable levels. Additionally, the Mohegan Tribe, Mystic River Watershed, Earth Justice, and Conservation Law Foundation suggests that the herring fishery may be a contributing factor to declines in Southern New England river herring and shad stock, based on a study by Hasselman et al. in 2015.

    Response: NMFS recognizes and supports the effort, time, and resources that states and local advocacy groups have devoted to river herring and shad restoration efforts. However, NMFS disagrees with the commenters that raising the river herring/shad catch caps will set back those efforts. Although the comments suggest otherwise, NMFS cannot directly link catch levels of river herring and shad in the herring fishery to impacts on river herring and shad recovery efforts by the states in specific rivers and streams. NMFS considered the Hasselman et al. study, despite it being published almost two months after the Council took final action at its meeting on September 29, 2015. NMFS acknowledges that certain river herring stocks may be disproportionately affected by the herring fishery, but points out the study also cautions that currently river herring and shad catch in the ocean cannot be confidently assigned to a specific population of origin. Instead, the catch caps are designed to minimize bycatch and bycatch mortality so that the catch of river herring and shad is kept below recent levels and limit fishing mortality to provide an opportunity for positive impacts on stocks. The incentive for the herring fishery to avoid river herring and shad catch comes from the potential that river herring and shad catch will limit the fishery's ability to harvest the ACL. While this action increases the value of caps off Cape Cod and in Southern New England, the incentive to avoid river herring and shad catch remains while the caps are in place and are set based on fishing activity. NMFS has determined that the river herring/shad catch caps implemented in this action will support ongoing conservation efforts by the states and local advocacy groups and will help achieve conservation and management objectives outlined in the River Herring Conservation Plan coordinated by the Atlantic States Marine Fisheries Commission and NMFS.

    Comment 9: Three NGOs, one interested member of the public, the Mystic River Watershed Association, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice submitted on behalf of numerous U.S. citizens commented that the caps do not provide an incentive to avoid river herring and shad. One interested member of the public, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice on behalf of numerous U.S. citizens commented that the herring industry has stayed well within the current river herring/shad catch caps since 2015 and does not need more river herring and shad catch to operate. Additionally, the Conservation Law Foundation, Earth Justice, Herring Alliance, The Mohegan Tribe, and Save the Bay-Narragansett further suggest that NMFS use its authority to implement river herring/shad catch caps that reduce catch and stay consistent with the incentive to avoid and minimize river herring and shad catch.

    Response: NMFS disagrees with the commenters that the catch caps do not provide an incentive for the herring fishery to avoid river herring and shad catch. River herring/shad catch caps were first implemented in the herring fishery in 2014. As described previously, caps have been based on recent catch with the intent of keeping catch below its highest levels. Once 95 percent of a catch cap is harvested, the herring possession limit for vessels using that gear type and fishing in that area is reduced to 2,000 lb (907 kg) for the remainder of the fishing year. Implementation of this possession limit in a catch cap area decreases the herring fishery's ability to harvest the herring sub-ACL associated with that areas as well as the herring ACL.

    The incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. For example, catch tracked against the Southern New England/Mid-Atlantic bottom trawl cap is currently 21 mt compared to 51 mt at this same time last year. This suggests that the existence of the catch caps is an effective incentive to avoid river herring and shad catch and more restrictive caps are not required to provide an incentive to continue to avoid river herring and shad catch.

    The University of Massachusetts and Massachusetts Division of Marine Fisheries operate a river herring avoidance program for vessels participating in the herring fishery. This program is funded, in part, by the herring RSA for 2016-2018. The participation level of midwater trawl and bottom trawl vessels in the avoidance program has increased in recent years and currently includes the majority of midwater trawl and bottom trawl vessels. The river herring avoidance program provides vessels with near real-time information on where herring vessels are encountering river herring and encourages vessels to avoid and/or leave those areas. Select vessels that comply with the requirements of the avoidance program are able to harvest the herring RSA. Both the river herring avoidance program and the opportunity to harvest the herring RSA provide additional incentive for herring vessels to avoid river herring and shad.

    For these reasons, NMFS concludes the catch caps implemented in this action are consistent with the incentives to avoid and minimize catch to the extent practicable.

    Comment 10: Conservation Law Foundation, Earth Justice, Save the Bay-Narragansett, and the Earth Justice form letter stated that using a longer time series and a weighted mean to calculate the catch caps, compared to prior years, increases bias toward outlier years. Earth Justice, Conservation Law Foundation, Herring Alliance, Save the Bay-Narragansett, and the Earth Justice letter on behalf of 2,298 citizens commented that the industry had an incentive to catch more river herring and shad in 2013 and 2014 because it knew that more river herring and shad catch would mean higher catch caps in the future. Earth Justice and Save the Bay-Narragansett also commented that using the revised methodology is arbitrary and capricious in that it rewards the fleet for increasing river herring and shad catch 2013 and 2014.

    Response: Catch caps were implemented in Framework 3 to minimize river herring and shad bycatch and bycatch mortality to the extent practicable, while allowing the herring fishery an opportunity to fully harvest the herring ACL. Additionally, catch caps were intended to be adjusted when new information became available. The catch caps implemented in this action were calculated using updated data and a revised methodology.

    Catch caps for the 2016-2018 fishing years were calculated by using previously omitted catch data and a longer time series (most recent 7 years rather than 5 years). This ensures that the value of the catch caps are based on more data, especially the most recent catch information, to better ensure the catch caps reflect the herring fishery's interactions with river herring and shad and overall fishing effort. Because catch data may indirectly reflect stock abundance, setting catch caps based on recent catch data are expected to result in catch caps that are more consistent with current fishing activity, and possibly stock conditions. Commenters provided no information to substantiate claims that the herring industry intentionally caught more river herring and shad in 2013 and 2014 in order to artificially inflate catch caps. Therefore, NMFS concludes extending the time series used to calculate caps to include the two most recent years (2013 and 2014) best reflects the recent catch of river herring and shad, makes the best use of new information, and is consistent with Framework 3.

    Using a weighted mean, rather than the median or unweighted mean, to calculate catch caps best accounts for the inter-annual variability in the level of sampling (both observer and portside) of river herring and shad catch. Caps calculated using the median catch of river herring and shad would base the value of the cap on the total number of catch estimates, giving equal weight to all years regardless of sampling level. Using the unweighted mean, caps would be based on the average catch each year regardless of sampling level. In contrast, using a weighted mean to calculate catch caps adjusts for the sampling level each year and incorporates those averages into the overall average, thereby giving more weight to years with more sampling versus years with less sampling. Therefore, using a weighted mean helps account for the fluctuations in levels of sampling relative to observed catch of river herring and shad to help mitigate the effects of any outlier years.

    The revised methodology was developed by the Herring Plan Development Team (PDT). The PDT is the Council's technical group responsible for developing and preparing analyses to support the Council's management actions. The PDT is responsible for generating analyses to calculate quotas, caps, or any other technical aspects of the FMP. For the 2016-2018 catch caps, the PDT reviewed updated river herring and shad catch data and generated a range of catch cap alternatives for the Council's consideration. The PDT concluded that using a weighted mean and longer time series would be the most technically sound approach for specifying the values of the caps because it is consistent with using the best available science. The Council ultimately decided to adopt the river herring/shad catch caps based on the revised methodology recommended by the PDT.

    Using the revised methodology to calculate river herring/shad catch caps is consistent with using the best available science and it balances the incentive to avoid river herring and shad against the opportunity for the herring fishery to harvest the ACL. For these reasons, NMFS disagrees that the basis for setting river herring/shad catch caps implemented through this action, including the revised methodology, is arbitrary and capricious.

    Comment 11: Conservation Law Foundation, Earth Justice, and Save the Bay-Narragansett expressed concern that basing the river herring/shad catch caps on historical landings and not on biological status is problematic and not scientifically sound. The Ipswich River Watershed also commented that there is no science to support raising the caps.

    Response: NMFS disagrees. As described previously, available data are not robust enough to specify biologically-based catch caps that reflect river herring and shad abundance. Harvest limits are often based on recent catch when estimates of relative abundance are not available. For example, the herring ABC recommended by the SSC and implemented for 2010-2012 was based on recent catch because of scientific uncertainty associated with the 2009 herring stock assessment. In the absence of sufficient data to specify biologically-based catch caps, the catch caps are set based on recent catch data with the intent of keeping catch below its highest levels to limit fishing mortality on river herring and shad. Limiting catch to recent levels is expected to result in positive impacts on the stocks.

    Comment 12: Letters generated by PEW Charitable Trusts and Earth Justice on behalf of numerous U.S. citizens commented that river herring and shad should be added as stocks in the Atlantic Herring FMP and managed based on science.

    Response: The intent of this action is to set herring specifications and river herring/shad catch caps for the 2016-2018 fishing years. Adding river herring and shad as stocks in the fishery and developing management measures for both the river herring and shad stocks under the Atlantic Herring FMP are beyond the scope of this action and would require a regulatory amendment.

    Comment 13: Earth Justice commented that the revised methodology used to set the river herring/shad catch caps for the 2016-2018 fishing years is not consistent with the Mid-Atlantic Fishery Management Council's (MAFMC) approach for setting the same cap in the Atlantic Mackerel, Squid, and Butterfish FMP. They also commented that implementing the proposed river herring/shad catch caps would interfere with the catch measures first implemented by the MAFMC and are thus inconsistent with the MSA's requirement that new regulations be consistent with existing FMPs, amendments, MSA, and applicable law as stated in U.S.C. 1854(b)(1).

    Response: The MSA requires regulations to be consistent with the FMP. The MSA provision cited by the commenters does not require measures to be the same between FMPs. NMFS has determined that the river herring/shad catch caps for the herring and mackerel fisheries, including the associated methodologies for setting caps, are consistent with the Atlantic Herring FMP and the Atlantic Mackerel, Squid, and Butterfish FMP, respectively.

    When the MAFMC developed the river herring and shad catch cap for the mackerel fishery, the catch cap was based on median river herring and shad catch in the mackerel fishery during 2005-2012. This methodology was identical to the river herring and shad catch cap methodology developed by the Council for the 2014-2015 herring fishery. However, the Council considers both observer and portside sampling data to set catch caps while the MAFMC only considers observer data. The MAFMC continues to use the median river herring and shad catch estimate from 2005-2012 to set the catch cap for the mackerel fishery. However, if the mackerel fishery harvests 10,000 mt of mackerel in a given year, the river herring and shad catch cap is scaled up to the match the median river herring and shad catch estimate based on the mackerel ACL.

    NMFS agrees that river herring/shad catch caps for the herring and mackerel fisheries should not cause management inconsistencies between the two fisheries. Midwater trawl and bottom trawl vessels often participate in both the herring and mackerel fisheries. When fishing trips meet the minimum harvest threshold for catch caps in the herring fishery (6,600 lb (3 mt) of herring) and the minimum harvest threshold for the catch cap in the mackerel fishery (20,000 lb (9,072 kg) of mackerel), then river herring and shad catch on those trips is counted against both caps and vessels would be subject to the most restrictive catch cap. Rather than management inconsistencies, river herring/shad catch caps in both the herring and mackerel fisheries provide an additional incentive to avoid river herring and shad catch, thereby potentially limiting fishing mortality on these species.

    Comment 14: Three NGOs, one interested member of the public, the Mystic River Watershed Association, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice submitted on behalf of numerous U.S. citizens commented that raising the river herring/shad catch caps does not minimize bycatch and is inconsistent with the MSA and the goals and objectives of the Atlantic Herring FMP. Earth Justice further commented that raising the catch caps is inconsistent with National Standard 9, which requires that conservation and management measures minimize bycatch to the extent practicable. Lastly, Earth Justice commented that the small-mesh bottom trawl fleet in Southern New England discards an estimated 73 percent of its river herring and shad catch at sea, but NMFS does not explain how it plans to minimize this bycatch, consistent with the MSA.

    Response: NMFS disagrees. The MSA, specifically National Standard 9, does not require the elimination of bycatch or bycatch mortality, nor does it require minimizing bycatch at the exclusion of other considerations. Rather, National Standard 9 requires minimizing bycatch and bycatch mortality to the extent practicable, which includes a consideration of the net benefits to the nation. This consideration includes evaluating the negative impacts on affected stocks and other species in the ecosystem, incomes accruing to participants in the directed fishery in both the short and long-term, changes in fishing practices and behavior, and environmental consequences.

    As discussed previously, the incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. Once a 2,000-lb (907-kg) possession limit is in effect for a particular gear and area, the herring fishery's ability to harvest the herring sub-ACL associated with that area or the herring ACL is limited. This potential economic loss must be weighed against the role of river herring and shad in the herring fishery. River herring and shad are not target species in the herring fishery. Rather, they are harvested because they co-occur with herring and the incidental catch and bycatch of these species is low. Thus, the river herring/shad catch caps are not designed to eliminate all incidental catch. The caps are also not designed to remain static or continually decrease over time. These design features would not provide the flexibility for a full consideration of the net benefits to the nation because they may preclude an opportunity for herring industry to harvest its allowable catch.

    When evaluating the river herring/shad catch caps recommended by the Council, NMFS considered the ecological and economic considerations associated with the catch caps, as well fishing practices and behavior. The catch caps are intended to minimize river herring and shad bycatch and bycatch mortality to the extent practicable, while allowing the herring fishery an opportunity to fully harvest the herring ACL. The total catch of river herring and shad (both retained and discarded) is tracked against the catch caps. Because total catch of river herring and shad catch is counted against the catch caps, these caps not only help minimize the retained catch of river herring and shad, but they also help minimize any river herring and shad catch that is discarded at sea. As described in the responses to previous comments, NMFS concludes that catch caps are calculated using new and updated information and are based on the best available science. NMFS also concludes that if vessels continue to avoid river herring and shad, they would have an opportunity to harvest the herring ACL. Additionally, NMFS concludes that catch caps may limit fishing mortality on river herring and shad, thereby supporting ongoing Federal, state, and local conservation efforts. For these reasons, NMFS determines the river herring/shad catch caps implemented in this action reduce bycatch and bycatch mortality to the extent practicable and are consistent with the MSA, National Standard 9, and the Atlantic Herring FMP.

    Comment 15: The Mystic River Watershed Association, Conservation Law Foundation, Herring Alliance, and Earth Justice all commented that there is a lack of onboard monitoring and that it is highly likely that more river herring and shad are/will be discarded at sea than reported.

    Response: In 2016, NMFS increased observer coverage allocated to New England midwater trawl vessels to approximately 440 days, consistent with the standardized bycatch reporting methodology (SBRM). This is an increase of 401 days (175 percent) over the 160 days observed on the New England midwater trawl fleet in 2015. Three of the four river herring/shad catch caps implemented in this action are for vessels using midwater trawl gear. Additionally, observer coverage allocated to New England small-mesh bottom trawl vessels in 2016 (798 days) is expected to be similar to days observed in 2015 (933 days). The increase in observer coverage should help NMFS more precisely track catch against river herring/shad catch caps. Portside sampling by the Commonwealth of Massachusetts and the State of Maine is expected to continue into the future, collecting data on river herring and shad that are landed by midwater trawl and small-mesh bottom trawl vessels participating in the herring fishery. NMFS is currently considering if it would be appropriate to use portside sampling data along with observer data to track the catch of river herring and shad. Lastly, the Council is considering increasing monitoring in the herring fishery in the Industry-Funded Monitoring Omnibus Amendment. The Council is expected to take final action on this amendment in early 2017.

    Comment 16: Conservation Law Foundation, Herring Alliance, and Alewife Harvesters of Maine commented that all the biological uncertainty surrounding river herring and shad estimates demands a precautionary approach to management that requires either no increase in the catch caps or a more gradual increase.

    Response: The river herring/shad catch caps were developed by the Council to minimize river herring and shad bycatch to the extent practicable while allowing the herring fishery an opportunity to fully harvest the herring ACL. While NMFS acknowledges the uncertainty in the abundance estimates in the stock assessment for river herring and shad, that uncertainty was not intended to directly factor into the calculation of the river herring/shad catch caps. In fact, because of the absence of sufficient data to specify biologically-based catch caps, the catch caps are set based on recent catch data. The methodology used to calculate the catch caps, which accounts for variability of catch from year to year, incorporates precaution by keeping the catch caps below the highest catch levels and by establishing an incentive for the herring industry to avoid river herring and shad catch.

    Comment 17: Save the Bay-Narragansett commented that catch caps are being increased based on socio-economic concerns and that only the Council, and its supporting scientists, and the herring industry support increases to the catch caps.

    Response: NMFS must consider all factors, biological and socio-economic factors, when determining whether to accept or reject the Council's recommendations. NMFS has determined that the Council's recommended river herring/shad catch caps are consistent with the Atlantic Herring FMP, the MSA, and other applicable laws, and that comments opposing the increased catch caps provide no compelling information to reject the Council's recommendations.

    Classification

    The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.

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

    NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed in the 2016-2018 herring specifications EA. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this action is contained in the preamble to the proposed rule (81 FR 40253), and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and a copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES) or via the Internet at www.greateratlantic.fisheries.noaa.gov.

    A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

    NMFS received 32 comment letters on the proposed rule. Those comments, and NMFS' responses, are contained in the Comments and Responses section of this final rule and are not repeated here. None of the comments addressed the IRFA and NMFS did not make any changes in the final rule based on public comment.

    Description and Estimate of Number of Small Entities to Which This Rule Would Apply

    This final rule would affect all permitted herring vessels; therefore, the regulated entity is the business that owns at least one herring permit. From 2014 permit data, there were 1,206 firms that held at least one herring permit; of those, 1,188 were classified as small businesses. There were 103 firms, 96 classified as small businesses, which held at least one limited access permit. There were 38 firms, including 34 small businesses, which held a limited access permit and were active in the herring fishery. All four of the active large entities, held at least one limited access herring permit. The small firms with limited access permits had 60 percent higher gross receipts and 85 percent higher revenue from herring than the small firms without a limited access herring permit. Based on 2014 permit data, the number of potential fishing vessels in each permit category in the herring fishery are as follows: 39 for Category A (limited access, all herring management areas); 4 for Category B (limited access, Herring Management Areas 2/3); 46 for Category C (limited access, all herring management areas); 1,841 for Category D (open access, all herring management areas); and 4 for Category E (open access, Herring Management Areas 2/3).

    On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) previous standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors, respectively, of the U.S. commercial fishing industry.

    An IRFA was developed for this regulatory action prior to July 1, 2016, using SBA's previous size standards. Under the SBA's size standards, 4 of 38 active herring fishing entities with limited access permits were determined to be large. NMFS has qualitatively reviewed the analyses prepared for this action using the new size standard. The new standard could result in fewer commercial finfish businesses being considered small (due to the decrease in size standards).

    Taking this change into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of the proposed rule on small entities. The ACLs are fishery wide and any closures would apply to the entire fishery, and should be felt proportionally by both large and small entities. Further, the new size standard does not affect the decision to prepare a FRFA as opposed to a certification for this regulatory action.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    This final rule does not introduce any new reporting, recordkeeping, or other compliance requirements.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes

    Specification of commercial harvest and river herring/shad catch caps are constrained by the conservation objectives set forth in the FMP and implemented at 50 CFR part 648, subpart K under the authority of the MSA. Furthermore, specifications must be based on the best available scientific information, consistent with National Standard 2 of the MSA. With the specification options considered, the measures in this final rule are the only measures that both satisfy these overarching regulatory and statutory requirements while minimizing, to the extent possible, impacts on small entities. This rule implements the herring specifications outlined in Table 1 and the river herring/shad catch caps outlined in Table 2. Other options considered by the Council, including those that could have less of an impact on small entities, failed to meet one or more of these stated objectives and, therefore, cannot be implemented. Under Alternatives 1 and 2 for harvest specifications, small entities may have experienced slight increases in both gross revenues and herring revenues over the preferred alternative due to higher ACLs. However, Alternative 1 would fail to create a sustainable fishery because the ABC exceeds the ABC recommended by the SSC for 2016-2018 and has an increased risk of overfishing as compared to the preferred alternative. The ABC associated with Alternative 2 is equal to the ABC associated with the preferred alternative; however, the management uncertainty buffer is less under Alternative 2, resulting in a higher ACL than the preferred alternative. Rather than select an alternative with a higher ACL, the Council selected Alternative 3 to be more precautionary. Alternatives 1 and 2 for the river herring/shad catch caps failed to use the best available science as compared to the Alternative 3, which uses a longer time series, including more recent and previously omitted data, as well as a weighted mean, to best account for the inter-annual variability in the level of river herring and shad sampling, to generate the values for river herring/shad catch caps. The impacts of the specifications, as implemented by this final rule, are not expected to disproportionately affect large or small entities.

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (GARFO), and the compliance guide, i.e., permit holder letter, will be sent to all holders of permits for the Atlantic herring fishery. The guide and this final rule will be posted or publicly available on the GARFO Web site.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 26, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.201, add paragraph (h) to read as follows:
    § 648.201 AMs and harvest controls.

    (h) If NMFS determines that the New Brunswick weir fishery landed less than 4,000 mt through October 1, NMFS will allocate an additional 1,000 mt to the stockwide ACL and Area 1A sub-ACL. NMFS will notify the Council of this adjustment and publish the adjustment in the Federal Register.

    [FR Doc. 2016-26320 Filed 10-31-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XF009 Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2016 total allowable catch of yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.

    DATES:

    Effective November 1, 2016 through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,233 metric tons (mt), 4,970 mt, and 17,562 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 72740, October 21, 2016). The 2016 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,856 mt, 12,268 mt, and 5,090 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 72740, October 21, 2016).

    The Yukon Delta Fisheries Development Association has requested that NMFS exchange 73 mt of flathead sole and 606 mt of rock sole CDQ reserves for 679 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 73 mt of flathead sole and 606 mt of rock sole CDQ reserves for 679 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and following revision (81 FR 72740, October 21, 2016), are revised as follows:

    Table 11—Final 2016 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACS [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • Aleutian
  • District
  • Central
  • Aleutian
  • District
  • Western
  • Aleutian
  • District
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 7,900 7,000 9,000 16,013 54,329 151,758 CDQ 845 749 963 1,160 4,364 18,241 ICA 200 75 10 5,000 6,000 3,500 BSAI trawl limited access 685 618 161 0 0 14,979 Amendment 80 6,169 5,558 7,866 9,853 43,965 115,038 Alaska Groundfish Cooperative 3,271 2,947 4,171 1,411 11,129 43,748 Alaska Seafood Cooperative 2,898 2,611 3,695 8,442 32,836 71,290 Note: Sector apportionments may not total precisely due to rounding.
    Table 13—Final 2016 and 2017 ABC Surplus, Community Development Quota (CDQ) ABC Reserves, and Amendment 80 ABC Reserves in the BSAI for Flathead Sole, Rock Sole, and Yellowfin Sole [Amounts are in metric tons] Sector 2016 Flathead sole 2016 Rock sole 2016 Yellowfin sole 2017 Flathead sole 2017 Rock sole 2017 Yellowfin sole ABC 66,250 161,100 211,700 64,580 145,000 203,500 TAC 16,013 54,329 151,758 21,000 57,100 144,000 ABC surplus 50,237 106,771 59,942 43,580 87,900 59,500 ABC reserve 50,237 106,771 59,942 43,580 87,900 59,500 CDQ ABC reserve 5,929 12,874 4,411 4,663 9,405 6,367 Amendment 80 ABC reserve 44,308 93,897 55,531 38,917 78,495 53,134 Alaska Groundfish Cooperative for 2016 1 4,145 22,974 24,019 n/a n/a n/a Alaska Seafood Cooperative for 2016 1 40,163 70,923 31,512 n/a n/a n/a 1 The 2017 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2016. Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Yukon Delta Fisheries Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 24, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 27, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-26350 Filed 10-27-16; 4:15 pm] BILLING CODE 3510-22-P
    81 211 Tuesday, November 1, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket No. EERE-2013-BT-STD-0006] RIN 1904-AC55 Energy Conservation Standards for Commercial and Industrial Fans and Blowers: Availability of Provisional Analysis Tools AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of data availability (NODA).

    SUMMARY:

    The U.S. Department of Energy (DOE) has completed a provisional analysis that estimates the potential economic impacts and energy savings that could result from promulgating a regulatory energy conservation standard for commercial and industrial fans and blowers (“fans”). At this time, DOE is not proposing any energy conservation standard for fans. However, it is publishing this analysis so stakeholders can review the analysis results and the underlining assumptions and calculations that might ultimately support a proposed standard. DOE encourages stakeholders to provide any additional data or information that may improve the analysis. The analysis is now publically available at http://www.regulations.gov/docket?D=EERE-2013-BT-STD-0006.

    DATES:

    DOE will accept comments, data, and information regarding the NODA no later than December 1, 2016.

    ADDRESSES:

    Instructions: Any comments submitted must identify the NODA for Energy Conservation Standards for Commercial and Industrial Fans and Blowers, and provide docket number EERE-2013-BT-STD-0006 and/or regulatory information number (RIN) 1904-AC55. Comments may be submitted using any of the following methods: Interested persons may submit comments, identified by docket number EERE-2013-BT-STD-0006 and/or regulatory information number (RIN) 1904-AC55, by any of the following methods:

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

    Email: [email protected]. Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use of special characters or any form of encryption.

    Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., 6th Floor, Washington, DC 20024. Telephone: (202) 586-6636. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index may not be publicly available, such as those containing information that is exempt from public disclosure.

    The docket Web page can be found at: http://www.regulations.gov/docket?D=EERE-2013-BT-STD-0006. The docket Web page contains simple instructions on how to access all documents, including public comments, in the docket.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email: [email protected].

    Mr. Peter Cochran, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. History of Energy Conservation Standards Rulemaking for Commercial and Industrial Fans and Blowers II. Current Status III. Summary of the Analyses Performed by DOE A. Fan Electrical Input Power B. Scope of the Analysis and Addition of Certain Embedded Fans C. Equipment Classes D. Compliance Year E. Engineering Analysis F. Manufacturer Impact Analysis 1. Impacts on OEMs G. Life-Cycle Cost and Payback Period Analyses H. National Impact Analysis IV. Issues on Which DOE Seeks Public Comment I. History of Energy Conservation Standards Rulemaking for Commercial and Industrial Fans and Blowers

    On June 28, 2011, DOE published a notice of proposed determination of coverage to initiate the energy conservation standards rulemaking for fans, blowers, and fume hoods. 76 FR 37678. Subsequently, DOE published a notice of public meeting and availability of the Framework document for commercial and industrial fans and blowers (“fans”) in the Federal Register. 78 FR 7306 (February 1, 2013). In the Framework document, DOE requested feedback from interested parties on many issues, including the engineering analysis, the manufacturer impact analysis (MIA), the life-cycle cost (LCC) and payback period (PBP) analyses, and the national impact analysis (NIA).

    On December 10, 2014, DOE published a notice of data availability (December 2014 NODA) that estimated the potential economic impacts and energy savings that could result from promulgating energy conservation standards for fans. 79 FR 73246. The December 2014 NODA comment period was originally scheduled to close on January 26, 2015. However, DOE subsequently published a notice extending the comment period to February 25, 2015, to allow additional time for interested parties to submit comments. 80 FR 1477 (January 12, 2015). The December 2014 NODA analysis used a “wire-to-air” fan electrical input power metric, the fan energy index (FEI), to characterize fan performance. FEI is the ratio of the weighted-average fan electrical input power of a minimally compliant fan to the weighted-average fan electrical input power of a given fan, at three specified operating points. The FEI metric relied on an equation describing fan efficiency as a function of airflow and pressure in order to set the minimum fan efficiency of each considered efficiency level (EL) analyzed in the December 2014 NODA. In October 2014, several representatives of fan manufacturers and energy efficiency advocates 1 (Joint Stakeholders) presented DOE with an alternative metric approach called “Fan Efficiency Ratio,” which included a fan efficiency-only metric approach (FERH) and a wire-to-air metric approach (FERW).2 Both the FEI approach, presented in the December 2014 NODA, and the FERW approaches relied on an equation to determine required fan efficiency as a function of the fan's airflow and pressure. The main differences between the December 2014 NODA FEI and the FERW approaches were the form of the equation used for the fan efficiency, and the operating conditions at which the metric was evaluated. While in the December 2014 NODA, the FEI was calculated as a weighted average of the fan performance at three specific operating points, the FERW was calculated at all manufacturer-declared operating points. On May 1, 2015, based on the additional information received and comments to the December 2014 NODA, DOE published a second NODA (May 2015 NODA) that announced the availability of data from DOE analyses conducted using a modified FEI metric. 80 FR 24841. The modified FEI metric used in the May 2015 NODA is similar to the FERW metric presented by the Joint Stakeholders.

    1 The Air Movement and Control Association (AMCA), New York Blower Company, Natural Resources Defense Council (NRDC), the Appliance Standards Awareness Project (ASAP), and the Northwest Energy Efficiency Alliance (NEEA).

    2 Supporting documents from this meeting, including presentation slides are available at: http://www.regulations.gov/document?D=EERE-2013-BT-STD-0006-0029.

    Concurrent with these efforts, DOE also began a process through the Appliance Standards Rulemaking Federal Advisory Committee (ASRAC) to discuss negotiated energy conservation standards and test procedure for fans.3 On April 1, 2015, DOE published a notice of intent to establish a negotiated rulemaking Working Group for fans. 80 FR 17359. Twenty-five nominees were selected to serve as members of the Working Group in addition to one member from ASRAC and one DOE representative. Members of the Working Group were selected to ensure all stakeholders' interests and areas of expertise were represented.

    3 Information on the ASRAC, the commercial and industrial fans Working Group, and meeting dates is available at: http://energy.gov/eere/buildings/appliance-standards-and-rulemaking-federal-advisory-committee.

    The Working Group negotiations comprised 16 meetings and three webinars and covered scope, metrics, test procedures, and energy conservation standard levels for fans.4 The negotiations were initially scheduled to end on August 6, 2015, but the Working Group voted to extend the process by 30 days. The Working Group concluded its negotiations on September 3, 2015, with a consensus vote to approve and publish a term sheet containing recommendations for DOE on scope, energy conservation standards analysis methodology, and the test procedure for fans. The term sheet containing the Working Group recommendations is available in the fans energy conservation standard rulemaking docket.5 ASRAC subsequently voted to approve the recommendations of the Working Group during the September 24, 2015 webinar meeting.

    4 Details of the negotiation sessions can be found in the public meeting transcripts that are posted to the docket for the energy conservation standard rulemaking at: http://www.regulations.gov/docket?D=EERE-2013-BT-STD-0006.

    5 The term sheet, document No. 179, is posted on the docket for the energy conservation standards rulemaking at: http://www.regulations.gov/docket?D=EERE-2013-BT-STD-0006.

    II. Current Status

    Since the negotiations, DOE has revised its analysis to reflect the term sheet recommendations regarding the metric and energy conservation standards. DOE is publishing this NODA to inform stakeholders of the impacts of potential energy conservation standards for fans based on term sheet recommendations and to request feedback on specific issues.

    DOE made several changes to its analysis in preparing this NODA to address the term sheet recommendations as well as other stakeholder concerns expressed during the negotiations. Table II-1 lists the stakeholders who commented on issues addressed in this NODA. These changes and the ensuing results are described in section III, the accompanying analysis spreadsheets, or both. The most significant changes include

    (1) the augmentation of the AMCA sales data used in the May 2015 NODA to better account for fans made by companies that incorporate those fans for sale in their own equipment (see section III.G);

    (2) the augmentation of the AMCA sales data used in the May 2015 NODA to represent additional sales of forward curved fans, which AMCA stated were underrepresented in the original data AMCA provided. (AMCA, Public Meeting Transcript, No. 85 at p. 91); and

    (3) the inclusion of OEM equipment conversion costs.

    At this time, DOE is not proposing any energy conservation standards for fans. DOE may revise the analyses presented in today's NODA based on any new or updated information or data it obtains during the course of the rulemaking. DOE encourages stakeholders to provide any additional data or information that may improve the analysis.

    Table II-2—List of Commenters on Energy Conservation Standard Issues Addressed in This NODA Company or organization Abbreviation Affiliation ACME Engineering & Manufacturing Corporation ACME Manufacturer. AcoustiFLO AcoustiFLO Manufacturer. Air-Conditioning, Heating, and Refrigeration Institute AHRI Trade Association. Air Movement and Control Association, Inc AMCA Trade Association. Appliance Standards Awareness Program ASAP Efficiency Advocate. California Investor-Owned Utilities CA IOUs Utilities. ebm-papst, Inc ebm-papst Manufacturer. Flowcare Engineering Inc Flowcare Manufacturer. Greenheck Fan Corporation Greenheck Manufacturer. Ingersoll Rand/Trane Ingersoll Rand/Trane Manufacturer. Morrison Products Morrison Manufacturer. United Technologies/Carrier United Technologies/Carrier Manufacturer. III. Summary of the Analyses Performed by DOE

    DOE developed provisional analyses of fans in the following areas: (1) Engineering; (2) manufacturer impacts; (3) LCC and PBP; and (4) national impacts. The Government Regulatory Impact Model (GRIM), the engineering spreadsheet, the life-cycle cost spreadsheet, and the national impact analysis spreadsheet used in preparing these analyses and their respective results are available at: http://www.regulations.gov/docket?D=EERE-2013-BT-STD-0006. Each individual spreadsheet includes an introduction that provides an overview of the contents of the spreadsheet. These spreadsheets present the various inputs and outputs to the analysis and, where necessary, instructions. Brief descriptions of the calculation of the considered energy conservation standard levels, of the scope, of the provisional analyses, and of the supporting spreadsheet tools are provided in this preamble. If DOE proposes energy conservation standards for fans in a future NOPR, then DOE will publish a technical support document (TSD) containing a detailed written account of the analyses performed in support of the NOPR, which will include updates to the analyses made available in this NODA.

    A. Fan Electrical Input Power

    Fan energy performance is a critical input in the provisional analyses discussed in this notice. DOE used the fan electrical input power metric (FEP) as recommended by the Working Group to characterize the efficiency levels and represent fan performance. (No. 179, Recommendation #6 at p. 5) 6

    6 A notation in this form refers to a specific recommendation from the Working Group term sheet, document No. 179.

    The recommended FEP metric represents the electrical input power of the fan and includes the performance of the motor, and any transmission and/or control if integrated, assembled, or packaged with the fan. The Working Group recommended to require manufacturers to determine the FEP at each manufacturer-declared operating point, at standard air density, where the operating point is characterized by a value of airflow and total pressure for ducted fans and by a value of airflow and static pressure for unducted fans.7 8 Two methods were recommended by the Working Group for determining the FEP: (1) A fan shaft input power measurement combined with default values to represent the performance of the motor and any transmission and/or control (default value testing method); or (2) a direct measurement of the fan electrical input power (direct testing method). The recommended default value testing method provides different sets of calculation algorithms and default values to establish the FEP of a fan depending on its configuration (e.g., bare shaft fan, fan with regulated electric motor, or fan with motor with transmission and/or control). The Working Group also recommended allowing the representation of an index metric, the FEI, to allow for better comparability across all regulated fans. The engineering analysis and conversion cost spreadsheet presents the algorithms and default values used by the default value testing method and calculations of the FEP for both testing methods. (No. 179, Recommendation #9-16 at pp. 6-10)

    7 Ducted fans are: Axial cylindrical housed, centrifugal housed, inline and mixed-flow, and radial housed fans. Unducted fans are panel fans, centrifugal unhoused fans, and power roof ventilators. (No. 179, Appendix C at p. 16)

    8 In this document, all pressures refer to standard air densities. Standard air density is defined by a density of 0.075 lb/ft3, corresponding to air at 68 °F, 50 percent relative humidity and 406.78 in.wg.

    As noted previously, the FEP of a fan includes the performance of the bare shaft fan and of its drive system.9 In the December 2014 NODA and the May 2015 NODA, DOE calculated the FEP of a fan that exactly meets a given efficiency level (FEP STD) using a fan efficiency equation and the default values and calculation algorithms of a fan sold with a regulated electric motor and transmission, such as a belt drive. During the negotiations, the Working Group voted to retain this approach and provided further recommendations on how to establish the fan efficiency equation and default values for standalone fans.10 (No. 179, Recommendation #18 at p. 11)

    9 The drive system includes the motor and any transmission and/or control if integrated, assembled or packaged with the fan.

    10 A standalone fan is a fan that is not exclusively distributed in commerce for incorporation or incorporated in a larger piece of equipment.

    Based on this recommendation, and applying the same approach for embedded fans (see Section III.B), this NODA calculates the FEP STD,i of a fan based on the following equation, in kW, at a given operating point i:

    EP01NO16.152 Where: Q i = airflow (cfm) at operating point i; P i = total pressure for ducted fans, static pressure for unducted fans (in.wg.) at operating point i; ηSTD,i = standard level fan total efficiency for ducted fans, standard level fan static efficiency for unducted fans at operating point i (percent), calculated in accordance with Eq. 2; ηT,i = default transmission efficiency (percent) at operating point i; L M,i = default electric motor losses (hp) at operating point i; 6343 = conversion factor for I-P units; and 0.746 = hp to kW conversion factor.

    The Working Group recommended a fan efficiency equation to use for all fans when calculating FEP STD. (No. 179, Recommendations #19-21 at pp. 11-12) For each efficiency level considered, this NODA uses the equation recommended by the Working Group to determine the fan total efficiency for ducted fans and the fan static efficiency for unducted fans (percent) at a given operating point i (percent):

    EP01NO16.153 Where: η STD,i = standard level fan total efficiency for ducted fans, standard level fan static efficiency for unducted fans (percent) at operating point i and considered efficiency level; Q i = flow (CFM) at operating point i; P i = total pressure for ducted fans, static pressure for unducted fans (in.wg.) at operating point i; η target = constant (percent) used to establish the efficiency level associated with each standards case considered (see section III.E).

    The detailed equations and assumptions used to calculate FEPSTD are included in the engineering analysis and conversion cost spreadsheet.

    In addition, for this NODA, DOE maintained the Working Group recommendation for the FEI calculation, with one modification as follows: DOE calculated the FEI using a reference value of FEP (FEPREF) instead of using a value equal to the first energy conservation standards DOE may set (FEPSTD). As a reference value, DOE used the mid-point efficiency level (EL3).

    DOE requests feedback on the calculation of the FEPSTD and FEI.

    B. Scope of the Analysis and Addition of Certain Embedded Fans

    In the December 2014 NODA and the May 2015 NODA, DOE analyzed the following fan categories: Axial housed fans, axial unhoused fans, centrifugal housed fans, centrifugal unhoused fans, inline and mixed flow fans, radial fans, and power roof ventilators. This NODA analyzes the same fan categories based on the recommendation of the Working Group, but renames axial housed fans as axial cylindrical housed fans and axial unhoused fans as panel fans based on information provided by the Working Group. In addition, based on the discussions of the Working Group, DOE incorporated more embedded fans into its analysis for this NODA.11 DOE also added more sales of forward curved fans for this NODA, which AMCA stated were under-represented in the original data AMCA provided. (AMCA, Public Meeting Transcript, No. 85 at p. 91) Accordingly, this NODA analyzes the fans listed in Table III-1 with the characteristics discussed in this section and exemptions listed in Table III-2. (No. 179, Recommendation #1-4 at pp. 1-4)

    Table III-1—Fan Categories Analyzed Family Fan category In NODA scope? Axial Axial cylindrical housed Yes * Panel Yes * Power Roof Ventilator Yes * Induced flow fans No Safety fan No Circulating fans No Centrifugal Centrifugal housed Yes * Centrifugal unhoused Yes * Radial shrouded Yes * Radial unshrouded No if impeller is less than 30 inches in diameter or less than 3 inches in blade width. Power Roof Ventilator Yes * Induced flow fans No Safety fan No Inline Yes * Mixed flow Yes * Cross flow No * Excluding embedded fans listed in Table III-2. Table III-2—Embedded Fans Recommended Exemptions Equipment category Fans exclusively embedded in: Single phase central air conditioners and heat pumps with a certified cooling capacity rated less than 65,000 Btu per hour, subject to DOE's energy conservation standard at 10 CFR 430.32(c). Three phase, air-cooled, small commercial packaged air-conditioning and heating equipment with a certified cooling capacity rated less than 65,000 Btu per hour, subject to DOE's energy conservation standard at 10 CFR 431.97(b). Residential furnaces subject to DOE's energy conservation standard at 10 CFR 430.32(y). Transport refrigeration (i.e., Trailer refrigeration, Self-powered truck refrigeration, Vehicle-powered truck refrigeration, Marine/Rail container refrigerant). Vacuums. Heat Rejection Equipment: Packaged evaporative open circuit cooling towers. Evaporative field erected open circuit cooling tower. Packaged evaporative closed circuit cooling towers. Evaporative field erected closed circuit cooling tower. Packaged evaporative condensers. Field erected evaporative condensers. Packaged air cooled (dry) coolers. Field erected air cooled (dry) coolers. Air cooled steam condensers. Hybrid (water saving) versions of all of the previously listed equipment that contain both evaporative and air cooled heat exchange sections. Air curtains. Supply or Condenser fans, exclusively embedded in: Air-cooled commercial package air conditioners and heat pumps (CUAC, CUHP) between 5.5 and 63.5 tons regulated by DOE's energy conservation standard at 10 CFR 431.97(b). Water-cooled, evaporatively-cooled, and water-source commercial air conditioners or heat pumps regulated by DOE's energy conservation standard at 10 CFR 431.97(b). Single package vertical air conditioners and heat pumps regulated by DOE's energy conservation standard at 10 CFR 431.97(d). Packaged terminal air conditioners (PTAC) and packaged terminal heat pumps (PTHP) regulated by DOE's energy conservation standard at 10 CFR 431.97(c). Computer room air conditioners regulated by DOE's energy conservation standard at 10 CFR 431.97(e). Variable refrigerant flow multi-split air conditioners and heat pumps regulated by DOE's energy conservation standard at 10 CFR 431.97(f).

    In addition, based on the recommendation of the Working Group, this NODA only considered fans with operating points with a fan shaft input power equal to, or greater than, 1 horsepower and a fan airpower equal to or less than 150 horsepower. (No. 179, Recommendation #5 at p. 4) The horsepower scope limitations are further explained in the engineering analysis and conversion cost spreadsheet.

    C. Equipment Classes

    When evaluating and establishing energy conservation standards, DOE divides covered equipment into equipment classes by the type of energy used or by capacity or other performance-related features that justify differing standards. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE determines are appropriate. (42 U.S.C. 6295(q)) In the December 2014 and May 2015 NODAs, DOE divided commercial and industrial fans into seven equipment classes based primarily on the direction of the airflow through the fan and other features that impact the energy use and utility of a fan (see Table III-3). In addition, DOE grouped inline and mixed flow fans into a single equipment class and included all power roof ventilators in a single equipment class.

    Table III-3—Fan Equipment Classes Airflow Fan category Feature Equipment class Axial Axial cylindrical housed Cylindrical housing Axial cylindrical housed. Panel Orifice panel or ring Panel. Power Roof Ventilator Weather protection housing Power Roof Ventilator. Centrifugal Power Roof Ventilator Weather protection housing. Centrifugal housed Scroll Housing Centrifugal housed. Centrifugal unhoused No Housing Centrifugal unhoused. Radial shrouded
  • Radial unshrouded
  • Radial impellers and housing (dust/material handling) Radial housed.
    Inline Cabinet or cylindrical Housing Inline and Mixed Flow. Mixed flow

    During the negotiations, the Working Group did not come to a consensus regarding the equipment classes and stakeholders provided several suggestions for modifying these equipment classes. (No. 179, Recommendation #30 at p. 19)

    ASAP and AMCA, supported by the CA IOUs, recommended grouping all ducted fans into a single equipment class, and all unducted fans in a single equipment class. (ASAP and AMCA, No. 50 at p. 2; CA IOUs, No. 49 at p. 2) Flowcare commented that fans should be classified into three classes: Axial fans, centrifugal fans, and mixed flow fans. (Flowcare, No. 46 at p. 6)

    Ingersoll Rand/Trane commented that centrifugal housed fans with a forward curved blade design have a distinct utility compared to other centrifugal housed fans (e.g., backward curved centrifugal housed fans) and should be in a separate equipment class. Ingersoll Rand/Trane commented that forward curved centrifugal housed fans are compact, have a relatively good sound quality, and are most suitable for low-pressure applications, in which they are relatively efficient. (Ingersoll Rand/Trane, No. 153 at p. 5) AHRI provided similar comments. AHRI stated that forward curved centrifugal housed fans require a separate equipment class for the following reasons: (1) Their compact sizes compared to backward curved fans providing the same airflow and pressure; (2) their specific applications in low pressure and speed ranges, providing good sound quality; and (3) the European Regulation 327/2011 considers them separately. (AHRI, No. 129-2 at pp. 1-6)

    DOE did not group all fans into only ducted and unducted equipment classes because fans have other unique features that provide different utilities to the customer and, as a result, justify additional equipment classes. However, DOE recognizes that ducted and unducted fans perform differently. For this NODA, the FEPstd at each EL is calculated differently for ducted and unducted fans to account for these performance differences. (See section III.A for more details) For this same reason, DOE also did not establish equipment classes based solely on airflow.

    With respect to establishing a separate equipment class for forward curved centrifugal housed fans, DOE analyzed a sample of fan selections 12 and found forward curved centrifugal housed fans that meet every efficiency level being analyzed. In addition, for small diameter fans, DOE also found an example of a forward curved fan with a small impeller diameter (i.e., less than 6.5 inches) that met all efficiency levels up to EL 5, showing that it is technologically feasible for small forward curved fans to reach high efficiency levels.13 DOE notes that there may be many more forward curved fans with small impeller diameters at high efficiency levels in the market than its database shows. DOE recognizes that maintaining the utility of small forward curved fans across all operating points is important and requires preserving forward curved fan availability or acceptable non-forward curved fan replacements across sizes and operating points. Based on analysis of the data available, DOE believes small forward curved fans or acceptable non-forward curved replacements would be available up to EL 5 across all current sizes and operating points. DOE therefore believes that more-efficient forward curved centrifugal housed fans could replace inefficient forward curved centrifugal housed fans up to EL 5. In addition, to consider the possibility that an original equipment manufacturer (OEM) might opt to replace a forward curved centrifugal housed fan incorporated in a larger piece of heating, ventilation, air-conditioning, and refrigeration (HVACR) equipment with a backward curved centrifugal housed fan, DOE included the costs of redesigning the HVACR equipment to accommodate a different fan in the standards case fan price calculation. (See section III.F.1 for more details) Therefore, DOE does not believe that forward curved centrifugal housed fans merit a separate equipment class.

    12 See description of the fan selection sample in the life cycle analysis section III.F.1.

    13 See engineering analysis discussion in section III.E for details about the considered efficiency levels.

    Regarding the application range, DOE agrees with AHRI and Ingersoll Rand/Trane that forward curved centrifugal housed fans are most typically used in low pressure (less than 5.0 in.wg.), low speed applications (between 800 and 1200 rpm). DOE accounted for the specificity of the application range in the metric, which allows calculating the FEPSTD of a fan based on a fan efficiency equation that provides lower values at decreased pressure and airflow (see Eq. 2). In other words, the required FEP at a given efficiency level decreases with pressure and airflow in order to account for the fact that fans operating in these ranges are inherently less efficient.

    Finally, DOE notes that the latest revision of the European Regulation 327/2011 14 is considering grouping forward curved centrifugal housed fans with backward curved centrifugal housed fans for fans with an electrical input power greater than 5 kW (equivalent to approximately 6.7 hp). At a given diameter, the European study states that forward curved fans typically output more flow compared to backward bladed fans, which allows them to run relatively slower. This effect is more apparent for smaller diameters and becomes less significant as fan diameter increases. The EU therefore concluded that forward and backward curved centrifugal housed fans of larger sizes (greater than 5 kW of fan electrical input power) could be treated in the same product category with the same minimum efficiencies. For capacities less than 5 kW, the latest revision of the European regulation is considering maintaining forward curved centrifugal housed fans as a separate equipment class. DOE's fan selection analysis found forward curved centrifugal housed fans with electrical input power below 5kW that were compliant up to EL 6. Therefore, DOE believes such distinction is not necessary when using the FEP metric. In addition, as previously noted, DOE accounted for the costs of potentially incorporating a larger fan in a larger piece of equipment as part of the OEM equipment conversion costs. Therefore, DOE is not considering applying the distinction made in the European regulation 327/2011 and retains forward curved centrifugal housed fans in the same equipment class as other centrifugal housed fans for this NODA analysis.

    14 Ecodesign Fan Review, Review Study of Commission Regulation (EU) No 327/2011, Final Report prepared by Van Holsteijn en Kemna B.V. for the European Commission, Directorate-General for Energy. Available at http://www.fanreview.eu/documents.htm (last accessed 02/02/2016).

    AHRI and Bade commented that regulating return fans and exhaust fans requires special consideration because they typically operate at similar flows but lower static pressures compared to supply fans, which inherently affects the fan operating efficiency. (AHRI, No. 158 at pp. 5-6; Bade, No 116 at p. 1) Similarly, Ingersoll Rand/Trane commented that using efficient fans in variable-air-volume applications might decrease the capability of the fans to achieve an airflow reduction at lower system requirements, which may increase a building's energy consumption by pushing consumers to constant volume systems or requiring different systems. (Ingersoll Rand/Trane, No. 153 at p. 3) DOE agrees with AHRI and Ingersoll Rand/Trane that fans operating at lower pressures will have a lower efficiency compared to fans of equivalent design operating at higher pressures. To account for this effect and preserve the utility of low-pressure fans, DOE is considering a metric that is a function of the operating pressure, where the required FEP at a given efficiency level is less stringent at lower operating pressures. Consequently, a return or exhaust fan operating at a lower pressure than a supply fan at a given flow would have a lower required FEP at a given efficiency level, which mitigates the disproportionate impacts suggested by AHRI and Ingersoll Rand/Trane.

    Based on these comments, DOE maintained the equipment classes used in the May 2015 NODA and presented in Table III-3.

    DOE seeks comments on the equipment classes used in this notice, including information on specific sizes or operating points for which forward curved fans would no longer be available at efficiency levels up to EL 5 and whether, at those sizes or operating points, an acceptable non-forward curved fan is available.

    D. Compliance Year

    For this analysis, DOE assumed a compliance date of five years after publication of a final energy conservation standards rule. (42 U.S.C. 6316(a); 42 U.S.C. 6295(l)(2)) The Working Group did not make any recommendation on the compliance year, and DOE believes that five years would allow fan manufacturers sufficient time to redesign their existing equipment, as necessary, to meet new energy conservation standards. DOE anticipates the final rule to publish in 2017, resulting in a compliance date for the standards of 2022. Stakeholders provided several suggestions for the compliance date.

    ebm-papst commented that a three-year compliance period would represent sufficient time. (ebm-papst, No. 45 at p. 2) Morrison commented that even five years may not be enough. (Morrison, No. 51 at p. 9)

    Ingersoll Rand/Trane and AHRI commented that, in order to allow OEMs to redesign their existing equipment to use fans of different types or sizes, the compliance date for fans that are components of larger piece of equipment should be delayed. For such fans, Ingersoll Rand/Trane recommended an additional two years and AHRI recommended an additional five years after the compliance date for standalone fans. (Ingersoll Rand/Trane, No. 153 at p. 4; AHRI, No. 158 at p. 9)

    In the December 2014 NODA, DOE requested comments on the redesign time per fan model. United Technologies/Carrier stated three years would be too short in terms of compliance period and that it could take 18 to 24 months per fan for an OEM to complete a redesign for an embedded fan and the equipment incorporating the fan. (United Technologies/Carrier, No. 43 at p. 2)

    DOE believes that manufacturers will be able to offer fans that are compliant with any energy conservation standards DOE may set before 5 years after publication of a final rule. Many fans are compliant with the highest efficiency levels for at least part of their operating range. Consequently, for many fans, any standard may only require certifying a different operating range rather than redesigning the fan. DOE's analysis estimates that at the most stringent EL (EL 6), 70 percent of current fan selections 15 would not meet the standard but that more than half of these could be replaced by existing compliant substitutes. This means that even at the highest EL, only 33 percent of all fan selections would require a redesigned fan. Therefore, DOE believes that a five-year compliance period is sufficient for fan manufacturers, including OEMs to either redesign their fans and equipment or select compliant, alternative fans. For the analyses in this NODA, DOE assumed a compliance date of five years after the publication of the final rule.

    15 Based on 2012 data, see section III.G for more details. A fan selection is the combination of a fan model and design point at which it is purchased.

    DOE seeks comments on the use a compliance date of five years after the publication of the final rule.

    E. Engineering Analysis

    The engineering analysis establishes the relationship between the manufacturer production cost (MPC) and efficiency levels of fans. This relationship serves as the basis for calculations performed in the other analysis tools to estimate the costs and benefits to individual consumers, manufacturers, and the Nation.

    DOE used the same methodology in the engineering analysis of this NODA as for the December 2014 NODA and the May 2015 NODA. For each fan equipment class, DOE identified existing technology options that could affect efficiency. Next, DOE conducted a screening analysis to review each technology option and decide whether it: (1) Is technologically feasible; (2) is practicable to manufacture, install, and service; (3) would adversely affect product utility or product availability; or (4) would have adverse impacts on health and safety. The technology options remaining after the screening analysis consisted of a variety of impeller types and guide vanes. DOE categorized the fan equipment classes into subcategories by the technology options the fans use. DOE then conducted a market-based assessment of the prevalence of each subcategory at each efficiency level analyzed. DOE estimated market prevalence using the sales data provided by AMCA that was within the scope of the analysis and for which there was sufficient information. This NODA, like the May 2015 NODA has fewer subgroups than the December 2014 NODA due to limitations in the sales data provided by AMCA.

    For this NODA, DOE augmented the AMCA sales data used in the May 2015 NODA to account for embedded fans made by companies that incorporate those fans for sale in their own equipment (see section III.G) and to represent additional sales of forward curved fans, which AMCA stated were underrepresented in the original data AMCA provided. (AMCA, Public Meeting Transcript, No. 85 at p. 91) The resulting engineering database was analyzed at six efficiency levels (ELs) representing different target efficiencies (η target , see section III.A). In this NODA, efficiency levels were set separately for ducted and unducted fans, based on the recommendation of the working group. (No. 179, Recommendation #18 at pp. 10-11) For ducted fans, the six efficiency levels are calculated using the same six total efficiency targets used in the May 2015 NODA. At each of the analyzed efficiency levels in this NODA, the static efficiency targets used for unducted fans are 0.04 less than the total efficiency target at each respective level. The exact target efficiencies used in this NODA are presented in Table 3 of the “MPC Approach” tab of the engineering analysis and conversion cost spreadsheet.

    DOE calculated MPCs at each efficiency level using the same methodology as used in the December 2014 NODA and the May 2015 NODA. The MPCs were derived from product teardowns and publically available product literature and were informed by interviews with manufacturers. DOE calculated the MPCs for fans in each subcategory. DOE used these MPCs to characterize the relationship between MPC and blade or impeller diameter for each subcategory. DOE found that all fan subcategories were represented at all ELs, so DOE did not use subcategory MPC differences to directly represent higher efficiency. DOE found some subcategories to be more prevalent at higher ELs. Therefore, DOE calculated MPCs for each fan equipment class at each efficiency level analyzed by weighting the MPCs of each subcategory within a class by its prevalence at the efficiency level being analyzed.

    DOE's preliminary MPC estimates indicate that the changes in MPC as efficiency level increases are small or, in some fan equipment classes, zero. However, DOE is aware that aerodynamic redesigns are a primary method by which manufacturers improve fan performance. These redesigns require manufacturers to make large upfront investments for R&D, testing and prototyping, and purchasing new production equipment. DOE's preliminary findings indicate that the magnitude of these upfront costs are more significant than the difference in MPC of a fan redesigned for efficiency compared to its precursor. For this NODA, DOE included a conversion cost markup in its calculation of the manufacturer selling price (MSP) to account for these conversion costs. These markups and associated MSPs were developed and applied in downstream analyses. They are discussed in section III.F and presented in the LCC spreadsheet.

    The main outputs of the fans engineering analysis are the MPCs of each fan equipment class (including material, labor, and overhead) and technology option distributions at each efficiency level analyzed.

    F. Manufacturer Impact Analysis

    For the MIA, DOE used the Government Regulatory Impact Model (GRIM) to assess the economic impact of potential standards on commercial and industrial fan manufacturers. DOE developed key industry average financial parameters for the GRIM using publicly available data from corporate annual reports along with information received through confidential interviews with manufacturers. These values include average industry tax rate; working capital rate; net property, plant, and equipment rate; selling, general, and administrative expense rate; research and development expense rate; depreciation rate; capital expenditure rate; and manufacturer discount rate.

    Additionally, DOE calculated total industry capital and product conversion costs associated with meeting all analyzed efficiency levels. Using a proprietary cost model and feedback received from manufacturers during interviews, DOE first estimated the average industry capital and product conversion costs associated with redesigning a single size of a fan series to meet a specific efficiency level. DOE estimated the costs for all subcategories within each fan equipment class. DOE multiplied these per model conversion costs by the number of models that would be required to be redesigned at each efficiency level to arrive at the total industry conversion costs. The number of models that would be redesigned was calculated using information from the engineering database developed from the AMCA sales database (see section III.E). Additional information on the number of models redesigned is available in the engineering analysis and conversion cost spreadsheet, “Total Fan Conversion Costs” section of the “Database Overview and Use” tab.

    The GRIM uses these estimated values in conjunction with inputs from other analyses, including the MPCs from the engineering analysis, the annual shipments by fan equipment class from the NIA, and the fan manufacturer markups for the cost recovery markup scenario from the LCC analysis to model industry annual cash flows from the reference year through the end of the analysis period. The primary quantitative output of this model is the industry net present value (INPV), which DOE calculates as the sum of industry annual cash flows, discounted to the present day using the industry specific weighted average cost of capital, or manufacturer discount rate.

    Standards can affect INPV in several ways including requiring upfront investments in manufacturing capital as well as research and development expenses, which increase the cost of production and potentially alter manufacturer markups. DOE expects that manufacturers may lose a portion of INPV due to standards. The potential loss in INPV due to standards is calculated as the difference between INPV in the no-standards case (absent new energy conservation standards) and the INPV in the standards cases (with new energy conservation standards in effect). DOE examines a range of possible impacts on industry by modeling various pricing strategies commercial and industrial fan manufacturers may adopt following the adoption of new energy conservations standards for fans.

    In addition to INPV, the MIA also calculates the manufacturer markups, which are applied to the MPCs derived in the engineering analysis, to arrive at the manufacturer selling prices (MSPs) in the no-standards case. In the standards cases manufacturers will incur costs from the redesign of models that do not meet the required FEP at a given efficiency levels. DOE modeled two markup scenarios for the standards cases, a preservation of gross margin markup scenario and a conversion cost pass through markup scenario.

    In the preservation of gross margin markup scenario, DOE assumes that manufacturers maintain the same manufacturer markup, as a percentage, in the standards cases as they do in the no-standards case, despite higher levels of investment in the standards cases. This markup scenario represents the lower bound, or worst-case scenario for manufacturers, since manufacturers are not able to pass the conversion costs associated with complying with higher efficiency levels on to their customers. In the fan conversion cost recovery markup scenario, DOE assumes that manufacturers are able to pass on to their customers the fan conversion costs they incur to meet higher efficiency levels. In this markup scenario, manufacturer markups are based on the total manufacturer fan conversion costs and calculated to allow manufacturers to recover their upfront fan conversion costs, in addition to their normal no-standards case markup. DOE calculated the conversion cost pass through markups for each efficiency level by amortizing the conversion costs over the units shipped throughout the analysis period that were redesigned to meet the efficiency level being analyzed. This fan conversion cost pass through markup scenario represents the upper bound, or best-case scenario for manufacturers, since manufacturers are able to pass on to their customers the fan conversion costs associated with complying with higher efficiency levels. For the standards cases, all other downstream analyses use the fan manufacturer markups calculated in the fan conversion costs pass through markup scenario.

    DOE requests information on the per-model (size of a fan series) redesign costs presented in the engineering analysis and conversion cost spreadsheet.

    DOE requests information on the number of models (sizes of a fan series) that are currently in the scope of the rulemaking nationally.

    DOE requests feedback on the quantity of redesigns, methodology, and results used to calculate the total industry conversion costs by equipment class and EL, as presented in the engineering analysis and conversion cost spreadsheet.

    DOE requests information on the extent to which product conversion costs and/or capital conversion costs are shared among sizes in a fan series.

    DOE requests information on the extent to which product conversion costs and/or capital conversion costs are shared between belt and direct drive fans with the same aerodynamic design.

    DOE requests information on the extent to which product conversion costs and/or capital conversion costs are shared between fans of different construction classes of the same aerodynamic design.

    1. Impacts on OEMs

    Several stakeholders commented that the previous DOE analyses did not take into account the significant costs incurred by manufacturers who incorporate fans into their equipment. Ingersoll Rand/Trane, United Technologies/Carrier, Morrison, AHRI, and Greenheck commented that separate costs to redesign the units in which fans are installed would be incurred due to this regulation. (Ingersoll Rand/Trane, No. 42 at p. 4; United Technologies/Carrier, No. 43 at p. 4; Morrison, No. 51 at p. 5; AHRI, No. 53 at p. 6; Greenheck, No. 54-A at pp. 4-5) AHRI added that the cost to redesign the units in which fans are installed can be several times greater in terms of both time and money than the cost to redesign the fan itself. (AHRI, No. 53 at p. 7) Morrison and Ingersoll Rand/Trane commented that fans in commercial and industrial building applications are typically housed within other equipment such as air handlers or unitary rooftop units that are sized specifically around the fan. (Morrison, No. 51 at p. 5; Ingersoll Rand/Trane, No. 42 at p. 11) AHRI commented that any change to fan size, operating range, or fan type will increase the OEM production cost, and urged DOE to consider the production cost impact to OEMs as part of the rulemaking. (AHRI, No. 53 at p. 6) Ingersoll Rand/Trane added that this increased cost would affect building owners and could decrease adoption rate by consumers. (Ingersoll Rand/Trane, No. 42 at p. 11).

    AHRI also commented that in order to pass a regulation imposing additional costs (testing, implementation, time-frame, spare part availability, re-certification) on OEMs, DOE must consider the costs to these manufacturers and compare them to the potential energy saved, and in order to do so must conduct manufacturer interviews with OEMs. AHRI requested that DOE conduct such interviews and delineate DOE-covered equipment made by OEMs as a separate fan equipment class to assess the costs and relative benefits of a second layer of regulation on currently regulated HVACR equipment and publish a new NODA specifically addressing the impact on OEMs who were excluded from DOE's initial analysis. (AHRI, No. 158 at p. 3).

    After careful consideration of these comments and the Working Group discussions, DOE recognizes that its previous analyses did not accurately account for the cost impacts of a fans regulation on all impacted manufacturers. DOE revised its analysis for this NODA to better account for cost impacts on fan manufacturers, especially OEMs. DOE understands that some OEMs manufacture their own fans that they then incorporate in the equipment that they manufacture for sale. As discussed in section III.B, DOE augmented the database it used for this NODA by incorporating fans made by companies that then incorporate those fans for sale in their own equipment (see section III.G). The presence of these fans in the database DOE used for this NODA ensures that its analysis accounts for the impacts on MPC (see section III.E) and conversion costs (see previous discussion in this section) for OEMs that manufacture fans and incorporate them in the equipment that they manufacture for sale. DOE also understands that OEMs that incorporate fans may incur additional conversion costs for their equipment not directly associated with improving the efficiency of the fan. For this NODA, DOE estimated OEM equipment conversion costs and included them in its analysis. DOE conducted interviews with manufacturers of equipment with embedded fans. DOE used information gathered during these interviews in conjunction with its engineering database to estimate OEM equipment conversion costs at each EL. In each fan equipment class, fan models in the engineering database that were representing fans sold by OEMs (whether or not the OEM made the fan) and that needed to be redesigned or reselected were determined to incur OEM equipment conversion costs. The aggregated industry OEM equipment conversion costs are presented in the engineering analysis and conversion cost spreadsheet.

    DOE applied OEM equipment conversion costs to all embedded fans in its analysis. For OEMs that manufacture the fans that they incorporate in the equipment they manufacture for sale, DOE added the OEM equipment conversion costs to the fan conversion costs to develop total conversion cost recovery markups at each EL, for each fan equipment class, using the cost recovery markup methodology described in section III.F. For OEMs that incorporate fans that they do not manufacture themselves, the OEM equipment conversion cost is used to develop a cost recovery markup that is applied downstream of the fan conversion cost recovery markup. DOE then used the results as an input to the LCC analysis. Consequently, the cost to consumers of embedded fans, and, in turn, the cost-justification for the analyzed efficiency levels, accounts for both fan and OEM equipment conversion costs in this NODA.

    DOE believes the revisions made for this NODA analysis—augmenting DOE's database to more completely incorporate embedded fans and including OEM equipment conversion costs—better account for the costs and benefits associated with potential energy conservation standards for fans incorporated in larger pieces of equipment and address the concerns of Ingersoll Rand/Trane, United Technologies/Carrier, Morrison, AHRI, and Greenheck.

    DOE did not analyze a separate equipment class for embedded fans. DOE believes the revisions to its analysis described previously in this section appropriately account for the costs and benefits associated with embedded fans. However, the LCC spreadsheet published as part of this NODA provides the option to view results by subgroup for embedded fans and standalone fans separately.

    DOE requests information on the portion of equipment with embedded fans that would require heat testing for certification with any new energy conservation standards. DOE also requests feedback on the number of embedded fans that would require redesign as presented in the engineering analysis and conversion costs spreadsheet.

    G. Life-Cycle Cost and Payback Period Analyses

    The LCC and PBP analyses determine the economic impact of potential standards on individual consumers, in the compliance year. The LCC is the total cost of purchasing, installing, and operating a commercial or industrial fan over the course of its lifetime.

    DOE determines the LCC by considering: (1) The total installed cost to the consumer (which consists of manufacturer selling price, the conversion costs, distribution channel markups, and sales taxes); (2) the range of fan annual energy consumption as they are used in the field; (3) the fan operating costs; (4) fan lifetime; and (5) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price of higher-efficiency fans through savings in the operating cost. The PBP is calculated by dividing the incremental increase in installed cost of the higher efficiency product, compared to the baseline product, by the annual savings in operating costs.

    For each considered standards case corresponding to each efficiency level, DOE measures the change in LCC relative to the no-standards case. The no-standards case is characterized by the distribution of fan efficiencies in the absence of new standards (i.e., what consumers would have purchased in the compliance year in the absence of new standards). In the standards cases, fans with efficiency below the standard levels “roll-up” to the standard level in the compliance year.

    To characterize annual fan operating hours, DOE established statistical distributions of consumers of each fan equipment class across sectors and applications, which in turn determined the fan operating hours. Recognizing that several inputs to the determination of consumer LCC and PBP are either variable or uncertain (e.g., annual operating hours, lifetime, discount rate), DOE conducts the LCC and PBP analysis by modeling both the uncertainty and variability in the inputs using Monte Carlo simulations and probability distributions.

    In addition to characterizing several of the inputs to the analyses with probability distributions, DOE developed a sample of individual fan selections representative of the market.16 By developing this sample, DOE was able to perform the LCC and PBP calculations for each fan selection to account for the variability in energy consumption associated with each selection.

    16 A fan selection is a fan model and the fan shaft input power, operating flow, and pressure values for which it was purchased.

    The primary outputs of the LCC and PBP analyses are: (1) Average LCC in each standards case; (2) average PBPs; (3) average LCC savings at each standards case relative to the no-standards case; and (4) the percentage of consumers that experience a net benefit, have no impact, or have a net cost for each fan equipment class and efficiency level. The average annual energy consumption derived in the LCC analysis is used as an input in the NIA (see section III.H).

    In the December 2014 NODA and the May 2015 NODA, DOE developed a sample of individual fan selections (i.e., representative database of fan models including data on the design flow, pressure, and fan shaft input power for which they were purchased, and the drive configuration) using fan sales data provided by AMCA. During the negotiations, AMCA commented that these sales data included some standalone fans purchased by OEMs for incorporation into larger HVACR equipment but was not representative of sales of embedded fans. Specifically, AMCA commented that forward curved centrifugal housed fans, which are very common in HVACR equipment, were under-represented. (AMCA, Public Meeting Transcript, No. 85 at p. 91).

    In this NODA, DOE collected additional technical and market information specific to embedded fans and revised the LCC sample to represent both the embedded fan and standalone fan markets. For each fan equipment class, DOE used confidential AMCA sales data for over 57,000 fan selections (with complete performance data), representing over 92,000 units sold, to develop a sample representative of fans sold on the US market. Each row in the sample represents a fan selection. The number of rows was adjusted to match the US market distributions across fan equipment classes, subcategory, fan shaft input power, and drive configuration. DOE adjusted the number of standalone fans in the LCC sample to mirror the actual standalone fan market distributions based on confidential market estimates from AMCA for the U.S standalone fan market. For embedded fans, DOE adjusted the number of fan selections in the LCC sample to reflect the actual embedded fan market distributions based on embedded fan shipments data.17 As a result, and in line with AMCA's comment, the share of forward curved centrifugal housed fans in the sample increased from 3 percent to 19 percent. Using this sample, DOE was able to perform individual energy use calculations for each row in the sample and account for the variability in energy consumption associated with each fan selection.

    17 See description of the LCC sample in the LCC Spreadsheet.

    The “2012 Shipments” worksheet of the NIA spreadsheet presents the standalone fan market and embedded fan market data used to calibrate the LCC sample. The worksheet includes breakdowns by equipment class, subcategory, as well as the HVACR equipment shipments and estimated number of fans per unit used by DOE to calculate the number of embedded fans. The LCC sample description worksheet in the LCC spreadsheet provides more detailed breakdown of the fan selections by power bins and efficiency levels.

    DOE seeks feedback and input on the 2012 standalone fan and embedded fan shipments values, by equipment class and subcategory. Specifically, DOE requests feedback on: (1) The estimated number of fans per HVACR equipment; (2) the distribution of HVACR fans across fan subcategories by fan application; and (3) the share of standalone fans purchased and incorporated in HVACR equipment.

    DOE seeks feedback and input on the distribution of fan selections by power bin and subcategory for standalone fans and embedded fans as presented in the “LCC sample Description” worksheet of the LCC spreadsheet.

    In the December 2014 NODA and the May 2015 NODA, DOE calculated the FEP of a fan selection in the LCC sample using the default values and calculation algorithms for bare shaft fans. DOE applied this approach because the fan selection data included performance data for fans in bare shaft configurations. In this NODA, in order to establish the FEP of a fan considered in the analysis, DOE retained this approach and used the default values and calculation algorithms for bare shaft fans as recommended by the Working Group. The engineering analysis and conversion cost spreadsheet presents the detailed equations and default values used to calculate the FEP of a given fan model in a bare shaft configuration. In addition, based on the Working Group recommendation, the spreadsheet includes default values and calculation algorithms for other fan configurations such as fans with dynamic continuous controls. (No. 179, Recommendation #12-16 at pp. 7-9)

    After the publication of the December 2014 NODA, Morrison and AHRI commented that the operating hours seemed high but did not provide quantified estimates. (Morrison, No. 51 at p. 8; AHRI, No. 53 at p. 13) In the December 2014 and May 2015 NODAs, DOE used industrial plant assessment and Energy Plus building simulation data to estimate fan operating hours, which averaged around 6,500 hours per year.18 In this NODA, DOE retained the same assumption for the operating hours of standalone fans and developed specific operating hours for embedded fans based on HVAC fan operating hours data which averaged 2,725 hours per year.19

    18 Database of motor nameplate and field measurement data compiled by the Washington State University Extension Energy Program (WSU) and Applied Proactive Technologies (APT) under contract with the New York State Energy Research and Development Authority (NYSERDA) (2011); Strategic Energy Group (Jan. 2008), Northwest Industrial Motor Database Summary from Regional Technical Forum. Retrieved March 5, 2013 from http://rtf.nwcouncil.org/subcommittees/osumotor/Default.htm; U.S. Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Office, EnergyPlus Energy Simulation Software (Aug. 2014). Available at http://apps1.eere.energy.gov/buildings/energyplus.

    19 Arthur D. Little, Inc. “Opportunities for Energy Savings in the Residential and Commercial Sectors with High-Efficiency Electric Motors (Final Report),” (Dec. 1999); U.S. Department of Energy-Office of Energy Efficiency and Renewable Energy. Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Water-Cooled and Evaporatively-Cooled Commercial Packaged Air-Conditioning and Heating Equipment. Final Rule Technical Support Document, Chapter 4 Energy Use Characterization (2012). Available at http://www.regulations.gov/document?D=EERE-2011-BT-STD-0029-0039; 1 U.S. Department of Energy-Office of Energy Efficiency and Renewable Energy. Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Commercial Package Air Conditioning and Heating Equipment. NOPR Technical Support Document, Chapter 7 Energy Use Analysis (2014). Available at http://www.regulations.gov/document?D=EERE-2013-BT-STD-0007-0027.

    DOE seeks feedback and inputs on fan operating hours.

    In the December 2014 NODA and the May 2015 NODA, DOE assumed that all fans operated at full design flow and pressure when performing the energy use calculation. AHRI noted that most fans in HVAC equipment do not run at full design speed but at 60 percent of full speed (equivalent to running at 60 percent of design flow). (AHRI, No. 129-1 at p. 2) AHRI additionally provided input on the typical fan load profiles in VAV systems. (AHRI, No. 53 at p. 13) ACME commented that, 50 percent of the time, the actual operating point of a fan is not equal to the design point selection of the fan and has a higher pressure value. ACME added that in some situations, the design point of the fan is not known and the actual operating point of a fan may fall in a region of operation where the fan has a poor efficiency. ACME estimated that this could happen at least 30 percent of the time. In addition, ACME commented that the energy use analysis should account for fans operating in variable air volume (VAV) systems, for which the actual fan operating point is different than the design point. ACME believes that accounting for these situations would reduce the energy savings as calculated in the May 2015 NODA. (ACME, No. 149 at pp. 1-2) For industrial fans, AcoustiFLO stated that most fans operate at their design point. (AcoustiFLO, Public Meeting Transcript, No. 85 at p. 193)

    Based on these comments and stakeholder feedback received during negotiations DOE revised its December 2014 and May 2015 NODA analyses to account for part load operation. For the commercial sector, DOE assumed that 80 percent of the fans operated at an airflow that differed from the design flow at least some of the time. DOE based the 80 percent value on results from the EnergyPlus building energy use simulation software 20 that indicated that 80 percent of fans in the commercial sector operate along a variable load profile. To reflect this, DOE developed variable load profiles for 80 percent of the commercial fans based on the information provided by AHRI and the EnergyPlus building energy use simulation. In the case of the industrial sector, in line with the inputs from the stakeholders, DOE assumed about a third of the fans operated outside of the design flow (30 percent). The load profiles are presented in the “Sectors and Applications” worksheet of the LCC spreadsheet.

    20 The EnergyPlus building energy use simulation software is available at http://apps1.eere.energy.gov/buildings/energyplus/.

    DOE seeks feedback and inputs on the fan load profiles used in the energy use calculation and on the percentage of fans used in variable load applications.

    In the December 2014 NODA and the May 2015 NODA, DOE estimated the average fan lifetime for standalone fans to be 30 years. AHRI commented that the lifetimes seemed high but did not provide quantified estimates. Morrison commented that the lifetimes seemed high and that fans used in HVAC typically have 12-15 year lifetimes. (AHRI, No. 53 at p. 5, Morrison, No. 51 at p. 8) In this NODA, DOE revised the fan lifetimes to account for the fact that fans in HVACR application may have shorter lifetimes. In line with Morrison's comment, DOE used an average embedded fan lifetime of 17 years based on estimates of HVACR equipment lifetimes, but maintained an average lifetime of 30 years for other fans.21 The LCC spreadsheet includes more details on the fan lifetime estimates and includes a sensitivity scenario that provides results for an average embedded fan lifetime of 15 years.22

    21 Roth, Kurt, Detlef Westphalen, John Dieckmann, Sephir Hamilton, and William Goetzler. “Energy Consumption Characteristics of Commercial Building HVAC Systems Volume III: Energy Savings Potential.” National Technical Information Service (NTIS): U.S. Department of Commerce (July 2002). Available at http://apps1.eere.energy.gov/buildings/publications/pdfs/commercial_initiative/hvac_volume3_final_report.pdf.

    U.S. Department of Energy-Office of Energy Efficiency and Renewable Energy. Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Commercial Package Air Conditioning and Heating Equipment. Life-Cycle Cost Spreadsheet (NOPR) (2014). Available at http://www.regulations.gov/docket?D=EERE-2013-BT-STD-0007.

    22 The sensitivity scenario used a mechanical lifetime of 45,000 hours based on typical annual operating hours of 3000 hours and a lifetime in years of 15. The lifetimes calculates in the LCC may lead to different lifetimes in years due to the variability in applications and associated annual operating hours (i.e., fans operating fewer annual hours may have a longer lifetime).

    DOE seeks feedback and inputs on fan lifetimes.

    H. National Impact Analysis

    The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from potential new standards at each EL. DOE calculated NES and NPV for each EL as the difference between a no-standards case forecast (without new standards) and the standards case forecast (with standards). Cumulative energy savings are the sum of the annual NES determined for the lifetime of all fans shipped during a 30-year analysis period assumed to start in 2022. Energy savings include the full-fuel cycle energy savings (i.e., the energy needed to extract, process, and deliver primary fuel sources such as coal and natural gas, and the conversion and distribution losses of generating electricity from those fuel sources). The NPV is the sum over time of the discounted net savings each year, which consists of the difference between total energy cost savings and increases in total equipment costs. NPV results are reported for discount rates of 3 and 7 percent.

    To calculate the NES and NPV, DOE projected future shipments and efficiency distributions (for each EL) for each potential fan equipment class. DOE recognizes the uncertainty in projecting shipments and electricity prices; as a result, the NIA includes several different scenarios for each. Other inputs to the NIA include the estimated fan lifetime used in the LCC analysis, fan price, average annual energy consumption, and efficiency distributions from the LCC.

    IV. Issues on Which DOE Seeks Public Comment

    DOE is interested in receiving comment on all aspects of this analysis. DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:

    1. DOE requests feedback on the calculation of the FEPSTD and FEI.

    2. DOE seeks comments on the equipment classes used in this notice.

    3. DOE seeks information on whether there are specific sizes or operating points where forward curved fans would no longer be available at efficiency levels up to EL 5.

    4. DOE seeks comments on the use a compliance date of five years after the publication of the final rule.

    5. DOE requests information on the per-model (i.e., a single size fan within a fan series) redesign costs presented in the engineering analysis and conversion cost spreadsheet.

    6. DOE requests information on the number of models that are currently in the scope of the rulemaking nationally.

    7. DOE requests feedback on the quantity of redesigns, methodology, and results used to calculate the total industry conversion costs by equipment class and EL, as presented in the engineering analysis and conversion cost spreadsheet.

    8. DOE requests information on the extent to which product conversion costs and/or capital conversion costs are shared among sizes in a fan series.

    9. DOE requests information on the extent to which product conversion costs and/or capital conversion costs are shared between belt and direct drive fans with the same aerodynamic design.

    10. DOE requests information on the extent to which product conversion costs and/or capital conversion costs are shared between fans of different construction classes of the same aerodynamic design.

    11. DOE requests information on the portion of equipment with embedded fans that would require heat testing for certification with any new energy conservation standards.

    12. DOE requests feedback on the number of embedded fans that would require redesign presented in the engineering analysis and conversion costs spreadsheet.

    13. DOE seeks feedback and input on the 2012 standalone fan and embedded fan shipments values, by equipment class and subcategory. Specifically, DOE requests feedback on: (1) The estimated number of fans per HVACR equipment; (2) the distribution of HVACR fans across fan subcategory by fan application; and (3) the share of standalone fans purchased and incorporated in HVACR equipment.

    14. DOE seeks feedback and input on the distribution of fan selections by power bin and subcategory for standalone fans and embedded fans as presented in the “LCC sample Description” worksheet of the LCC spreadsheet.

    15. DOE seeks feedback and inputs on the fan operating hours.

    16. DOE seeks feedback and inputs on the fan load profiles used in the energy use calculation and on the percentage of fans used in variable load applications.

    17. DOE seeks feedback and inputs on the fan lifetimes.

    The purpose of this NODA is to notify industry, manufacturers, consumer groups, efficiency advocates, government agencies, and other stakeholders of the publication of an analysis of potential energy conservation standards for commercial and industrial fans and blowers. Stakeholders should contact DOE for any additional information pertaining to the analyses performed for this NODA.

    Issued in Washington, DC, on October 19, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-26341 Filed 10-31-16; 8:45 am] BILLING CODE 6450-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 326 and 391 RIN 3064-AE47 Removal of Transferred OTS Regulations Regarding Minimum Security Procedures Amendments to FDIC Regulations AGENCY:

    Federal Deposit Insurance Corporation.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    In this notice of proposed rulemaking (“NPR” or “Proposed Rule”), the Federal Deposit Insurance Corporation (“FDIC”) proposes to rescind and remove a part from the Code of Federal Regulations entitled “Security Procedures” and to amend FDIC regulations to make the removed Office of Thrift Supervision (“OTS”) regulations applicable to state savings associations.

    DATES:

    Comments must be received on or before January 3, 2017.

    ADDRESSES:

    You may submit comments by any of the following methods:

    FDIC Web site: http://www.fdic.gov/regulations/laws/federal/propose.html. Follow instructions for submitting comments on the agency Web site.

    FDIC Email: [email protected] Include RIN #3064-AE47 on the subject line of the message.

    FDIC Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429.

    Hand Delivery to FDIC: Comments may be hand delivered to the guard station at the rear of the 550 17th Street building (located on F Street) on business days between 7 a.m. and 5 p.m.

    Please include your name, affiliation, address, email address, and telephone number(s) in your comment. Where appropriate, comments should include a short Executive Summary consisting of no more than five single-spaced pages. All statements received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. You should submit only information that you wish to make publicly available.

    Please note: All comments received will be posted generally without change to http://www.fdic.gov/regulations/laws/federal/propose.html, including any personal information provided. Paper copies of public comments may be requested from the Public Information Center by telephone at 1-877-275-3342 or 1-703-562-2200.

    FOR FURTHER INFORMATION CONTACT:

    Lauren Whitaker, Attorney, Consumer Compliance Section, Legal Division (202) 898-3872; Martha L. Ellett, Counsel, Consumer Compliance Section, Legal Division, (202) 898-6765; Karen Jones Currie, Senior Examination Specialist, Division of Risk Management and Supervision (202) 898-3981.

    SUPPLEMENTARY INFORMATION:

    Part 391, subpart A was included in the regulations that were transferred to the FDIC from the Office of Thrift Supervision (“OTS”) on July 21, 2011, in connection with the implementation of applicable provisions of title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). With the exception of one provision (§ 391.5) the requirements for State savings associations in part 391, subpart A are substantively identical to the requirements in the FDIC's 12 CFR part 326 (“part 326”), which is entitled “Minimum Security Procedures.” The one exception directs savings associations to comply with appendix B to subpart B of Interagency Guidelines Establishing Information Security Standards (Interagency Guidelines) contained in FDIC rules at part 364, appendix B. The FDIC previously revised part 364 to make the Interagency Guidelines applicable to both state nonmember banks and state savings associations.1

    1 80 FR 65907 (Oct. 28, 2015).

    The FDIC proposes to rescind in its entirety part 391, subpart A and to modify the scope of part 326 to include state savings associations to conform to and reflect the scope of the FDIC's current supervisory responsibilities as the appropriate Federal banking agency. The FDIC also proposes to define “FDIC-supervised insured depository institution or institution” and “State savings association.” Upon removal of part 391, subpart A, the Security Procedures, regulations applicable for all insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency will be found at 12 CFR part 326.

    I. Background The Dodd-Frank Act

    The Dodd-Frank Act 1 provided for a substantial reorganization of the regulation of state and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to state savings associations, the Office of the Comptroller of the Currency (“OCC”), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (“FRB”), as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. The section provides that if such materials were in effect on the day before the transfer date, they continue to be in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

    1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 5301 et seq.).

    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(c), further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations that would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.2

    2 76 FR 39247 (July 6, 2011).

    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the FDI Act and other laws as the “appropriate Federal banking agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act amended the definition of “appropriate Federal banking agency” contained in section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add State savings associations to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for state savings associations, as it does here, the FDIC is authorized to issue, modify and rescind regulations involving such associations, as well as for state nonmember banks and insured branches of foreign banks.

    As noted, on June 14, 2011, pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.3 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.

    3 76 FR 47652 (Aug. 5, 2011).

    One of the OTS rules transferred to the FDIC governed OTS oversight of minimum security devices and procedures for state savings associations. The OTS rule, formerly found at 12 CFR part 568, was transferred to the FDIC with only nominal changes and is now found in the FDIC's rules at part 391, subpart A, entitled “Security Procedures.” Before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 326, subpart A entitled “Minimum Security Procedures,” a rule governing FDIC oversight of security devices and procedures to discourage burglaries, robberies and larcenies and assist law enforcement in the identification and apprehension of those who commit such crimes with respect to insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency. One provision in part 391, subpart A (391.5) is not contained in part 326, subpart A. It directs savings associations and certain subsidiaries to comply with the Interagency Guidelines Establishing Information Security Standards which were adopted jointly by the OTS and the FDIC and other banking agencies and are contained in appendix B to part 364 in FDIC regulations.

    After careful review and comparison of part 391, subpart A, and part 326, the FDIC proposes to rescind part 391, subpart A, because, as discussed below, it is substantively redundant to existing part 326 and simultaneously proposes to make technical conforming edits to the FDIC's existing rule.

    FDIC's Existing 12 CFR Part 326 and Former OTS's Part 568 (Transferred to FDIC's Part 391, Subpart A)

    Section 3 of the Bank Protection Act of 1968 directed the appropriate federal banking agencies and the OTS' predecessor, the Federal Home Loan Bank Board (“FHLBB”) to establish minimum security standards for banks and savings associations, at reasonable cost, to serve as a deterrent to robberies, burglaries, and larcenies and to assist law enforcement in identifying and prosecuting persons who commit such acts.4 In the initial rulemakings, the agencies consulted and cooperated with each other to promote a goal of uniformity where practicable. The initial minimum security rules were simultaneously issued in January 1969 and were substantively the same.5

    4 12 U.S.C. 1882.

    5 34 FR 618 (January 16, 1969); 34 FR 621 (January 16, 1969).

    In 1991, the minimum security rules were substantially revised to reduce unnecessary specificity, remove obsolete requirements and place greater responsibility on the boards of directors of insured financial institutions for establishing and ensuring the implementation and maintenance of security programs and procedures. The former FHLBB rules at 12 CFR part 563a were redesignated as 12 CFR part 568 by the OTS. The OTS rules remained substantively the same as the FDIC's rules in part 326, subpart A.6

    6 56 FR 29565 (June 28, 1991); 56 FR 13579 (April 3, 1991).

    In 2001, the FDIC and other federal banking agencies and the OTS issued Interagency Guidelines for Safeguarding Customer Information pursuant to section 501 of the Gramm Leach Bliley Act (“Protection of Nonpublic Personal Information”).7 At the same time, the OTS also added a provision at the end of its security procedures rules at section 568.5 directing saving associations and certain subsidiaries to comply with appendix B to the Interagency Guidelines. In a preamble footnote, the OTS indicated that the reason for the additional provision to its minimum security rules was “[b]ecause information security guidelines are similar to physical security procedures.” 8 In 2004, following enactment of the Fair and Accurate Credit Transactions Act (FACT Act), the OTS, FDIC and other banking agencies revised the Interagency Guidelines for Safeguarding Customer Information and renamed them the Interagency Guidelines for Establishing Information Security Standards. The Interagency Guidelines were located in the FDIC rules at part 364. In 2015, the FDIC amended part 364 to, among other reasons, make it applicable to State savings associations.9 After careful comparison of the FDIC's part 326, subpart A with the transferred OTS rule in part 391, subpart A, the FDIC has concluded that the transferred OTS rules governing minimum security procedures are substantively redundant. Based on the foregoing, the FDIC proposes to rescind and remove from the Code of Federal Regulations the transferred OTS rules located at part 391, subpart A, and to make technical amendments to part 326, subpart A to incorporate State savings associations.

    7 66 FR 8616 (Feb. 1, 2001).

    8Id. at footnote 2.

    9 80 FR 65903 (October 28, 2015).

    II. The Proposal

    Regarding the functions of the former OTS that were transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act, 12 U.S.C. 5414(b)(3), in pertinent part, provides that the former OTS's regulations will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law. After reviewing the rules currently found in part 391, subpart A, the FDIC proposes (1) to rescind part 391, subpart A, in its entirety; (2) to modify to the scope of part 326, subpart A to include State savings associations and their subsidiaries to conform to and reflect the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations; (3) delete the definition of “insured nonmember bank” and replace it with a definition of “FDIC-supervised insured depository institution or institution,” which means “any state nonmember insured bank or state savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q));” (4) add a new subsection (i), which would define “state savings association” as having “the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3));” and (5) make conforming technical edits throughout, including replacing the term “FDIC-supervised insured depository institution” or “institution” in place of “bank” throughout the rule where necessary.

    If the proposal is finalized, oversight of minimum security procedures in part 326, subpart A would apply to all FDIC-supervised institutions, including state savings associations, and part 391, subpart A, would be removed because it is largely redundant of the rules found in part 326. Rescinding part 391, subpart A, will serve to streamline the FDIC's rules and eliminate unnecessary regulations.

    III. Request for Comments

    The FDIC invites comments on all aspects of this proposed rulemaking, and specifically requests comments on the following:

    (1.) What impacts, positive or negative, can you foresee in the FDIC's proposal to rescind part 391, subpart A?

    Written comments must be received by the FDIC no later than January 3, 2017.

    IV. Regulatory Analysis and Procedure A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number.

    The proposed rule would rescind and remove from FDIC regulations part 391, subpart A from the FDIC regulations. This rule was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by title III of the Dodd-Frank Act. Part 391, subpart A, is substantively similar to the FDIC's existing part 326, subpart A regarding oversight of minimum security procedures for depository institutions with the exception of one provision at the end of Part 391, Subpart A which directs savings associations to comply with Interagency Guidelines which are located in appendix B to part 364. In 2015, the FDIC proposed and finalized revisions to part 364 that made part 364, including the Interagency Guidelines in Appendix B, applicable to State savings associations as well as State nonmember banks.

    The proposed rule also would (1) amend part 326, subpart A to include state savings associations and their subsidiaries within its scope; (2) define “FDIC-supervised insured depository institution or institution” and “state savings association;” and (3) make conforming technical edits throughout. These measures clarify that state savings associations, as well as state nonmember banks are subject to part 326, subpart A. With respect to part 326, subpart A, the Proposed Rule does not revise any existing, or create any new information collection pursuant to the PRA. Consequently, no submission will be made to the Office of Management and Budget for review. The FDIC requests comment on its conclusion that this aspect of the NPR does not create a new or revise an existing information collection.

    B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the proposed rule on small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million).10 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and publishes its certification and a short explanatory Statement in the Federal Register together with the proposed rule. For the reasons provided below, the FDIC certifies that the Proposed Rule would not have a significant economic impact on a substantial number of small entities.

    10 5 U.S.C. 601 et seq.

    As discussed in this notice of proposed rulemaking, part 391, subpart A, was transferred from OTS part 568, which governed minimum security procedures for depository institutions. The initial minimum security rules, though issued separately by the agencies, were all published in January 1969. The OTS rule, part 568 had been in effect since 1991 and all State savings associations were required to comply with it. Because it is substantially the same as existing part 326, subpart A of the FDIC's rules and therefore redundant, the FDIC proposes rescinding and removing the transferred regulation now located in part 391, subpart A. As a result, all FDIC-supervised institutions—including state savings associations and their subsidiaries—would be required to comply with the minimum security procedures in part 326, subpart A. Because all state savings associations and their subsidiaries have been required to comply with nearly identical security procedures rules since 1969, the Proposed Rule would not place additional requirements or burdens on any state savings association irrespective of its size. Therefore, the Proposed Rule would not have a significant impact on a substantial number of small entities.

    C. Plain Language

    Section 722 of the Gramm-Leach- Bliley Act, codified at 12 U.S.C. 4809, requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. The FDIC invites comments on whether the Proposed Rule is clearly stated and effectively organized, and how the FDIC might make it easier to understand. For example:

    • Has the FDIC organized the material to suit your needs? If not, how could it present the rule more clearly?

    • Have we clearly stated the requirements of the rule? If not, how could the rule be more clearly stated?

    • Does the rule contain technical jargon that is not clear? If so, which language requires clarification?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?

    • What else could we do to make the regulation easier to understand?

    D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (“EGRPRA”), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.11 The FDIC completed the last comprehensive review of its regulations under EGRPRA in 2006 and is commencing the next decennial review. The action taken on this rule will be included as part of the EGRPRA review that is currently in progress. As part of that review, the FDIC invites comments concerning whether the Proposed Rule would impose any outdated or unnecessary regulatory requirements on insured depository institutions. If you provide such comments, please be specific and provide alternatives whenever appropriate.

    11 Public Law 104-208, 110 Stat. 3009 (1996).

    List of Subjects 12 CFR Part 326

    Banks, Banking, Minimum security procedures, Savings associations.

    12 CFR Part 391

    Security procedures.

    Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation proposes to amend 12 CFR part 326 and 12 CFR part 391 as set forth below:

    PART 326—MINIMUM SECURITY DEVICES AND PROCEDURES AND BANK SECRECY ACT 1 COMPLIANCE

    1 In its orginal form, subchapter II of chapter 53 of title 31, U.S.C. was part of Public Law 92-508 which requires recordkeeping for and reporting of currency transactions by banks and others and is commonly known as the Bank Secrecy Act.

    1. The authority citation for part 326 continues to read as follows: Authority:

    12 U.S.C. 1813, 1815, 1817, 1818, 1819 (Tenth), 1881-1883; 31 U.S.C. 5311-5314 and 5316-5332.2.

    2. Revise subpart A to read as follows: Subpart A—Minimum Security Procedures Sec. 326.0 Authority, purpose, and scope. 326.1 Definitions. 326.2 Designation of security officer. 326.3 Security program. 326.4 Reports.
    § 326.0 Authority, purpose, and scope.

    (a) This part is issued by the Federal Deposit Insurance Corporation (“FDIC”) pursuant to section 3 of the Bank Protection Act of 1968 (12 U.S.C. 1882). It applies to FDIC-supervised insured depository institutions. It requires each institution to adopt appropriate security procedures to discourage robberies, burglaries, and larcenies and to assist in identifying and apprehending persons who commit such acts.

    (b) It is the responsibility of the institution's board of directors to comply with this part and ensure that a written security program for the institution's main office and branches is developed and implemented.

    § 326.1 Definitions.

    For the purposes of this part—

    (a) The term FDIC-supervised insured depository institution or institution means any insured depository institution for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q)(2) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q)(2).

    (b) The term banking office includes any branch of an institution and, in the case of an FDIC-supervised insured depository institution, it includes the main office of that institution.

    (c) The term branch for an institution chartered under the laws of any state of the United States includes any branch institution, branch office, branch agency, additional office, or any branch place of business located in any state or territory of the United States, District of Columbia, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Northern Mariana Islands or the Virgin Islands at which deposits are received or checks paid or money lent. In the case of a foreign banks defined in§ 347.202 of this chapter, the term branch has the meaning given in § 347.202 of this chapter.

    (d) The term state savings association has the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

    § 326.2 Designation of security officer.

    Upon the issuance of Federal deposit insurance, the board of directors of each institution shall designate a security officer who shall have the authority, subject to the approval of the board of directors, to develop, within a reasonable time, but no later than 180 days, and to administer a written security program for each banking office.

    § 326.3 Security program.

    (a) Contents of security program. The security program shall:

    (1) Establish procedures for opening and closing for business and for the safekeeping of all currency, negotiable securities, and similar valuables at all times;

    (2) Establish procedures that will assist in identifying persons committing crimes against the institution and that will preserve evidence that may aid in their identification and prosecution; such procedures may include, but are not limited to:

    (i) Retaining a record of any robbery, burglary, or larceny committed against the institution;

    (ii) Maintaining a camera that records activity in the banking office; and

    (iii) Using identification devices, such as prerecorded serial-numbered bills, or chemical and electronic devices;

    (3) Provide for initial and periodic training of officers and employees in their responsibilities under the security program and in proper employee conduct during and after a robbery, burglar or larceny; and

    (4) Provide for selecting, testing, operating and maintaining appropriate security devices, as specified in paragraph (b) of this section.

    (b) Security devices. Each institution shall have, at a minimum, the following security devices:

    (1) A means of protecting cash or other liquid assets, such as a vault, safe, or other secure space;

    (2) A lighting system for illuminating, during the hours of darkness, the area around the vault, if the vault is visible from outside the banking office;

    (3) An alarm system or other appropriate device for promptly notifying the nearest responsible law enforcement officers of an attempted or perpetrated robbery or burglary;

    (4) Tamper-resistant locks on exterior doors and exterior windows that may be opened; and

    (5) Such other devices as the security officer determines to be appropriate, taking into consideration:

    (i) The incidence of crimes against financial institutions in the area;

    (ii) The amount of currency or other valuables exposed to robbery, burglary, and larceny;

    (iii) The distance of the banking office from the nearest responsible law enforcement officers;

    (iv) The cost of the security devices;

    (v) Other security measures in effect at the banking office; and

    (vi) The physical characteristics of the structure of the banking office and its surroundings.

    § 326.4 Reports.

    The security officer for each institution shall report at least annually to the institution's board of directors on the implementation, administration, and effectiveness of the security program.

    PART 391—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION Subpart A—Security Procedures 3. The authority citation for part 391 is revised to read as follows: Authority:

    12 U.S.C. 1819(Tenth).

    Subpart A—[Removed and Reserved] 4. Remove and reserve subpart A consisting of §§ 391.1 through 391.5. Dated at Washington, DC, this 19th day of October, 2016.

    By order of the Board of Directors.

    Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
    [FR Doc. 2016-26062 Filed 10-31-16; 8:45 am] BILLING CODE 6714-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9303; Directorate Identifier 2016-NM-093-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Dassault Aviation Model FAN JET FALCON airplanes; all Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; and all Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes. This proposed AD was prompted by a determination that inspections for discrepancies of the fuselage bulkhead are necessary. This proposed AD would require repetitive inspections for discrepancies of the fuselage bulkhead, and repair if necessary. We are proposing this AD to detect and correct discrepancies of the fuselage bulkhead; such discrepancies could result in the deterioration and failure of the bulkhead, which could result in rapid decompression of the airplane and consequent injury to occupants.

    DATES:

    We must receive comments on this proposed AD by December 16, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9303; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1137; fax: 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9303; Directorate Identifier 2016-NM-093-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0096, dated May 19, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FAN JET FALCON airplanes; all Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; and all Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes. The MCAI states:

    A detailed inspection (DET) of the fuselage bulkhead at frame (FR) 33 is established through a subset of inspection/check maintenance procedure referenced in the applicable aircraft maintenance manual (AMM), task 53-10-0-6 “MAIN FRAME—INSPECTION/CHECK”, with periodicity established in Chapter 5-10, at every C-Check. Failure to accomplish this DET could lead to deterioration of the affected structure.

    This condition, if not detected and corrected, could lead to bulkhead failure, possibly resulting in a rapid depressurization of the aeroplane and consequent injury to occupants.

    For the reasons described above, this [EASA] AD requires repetitive DET of the bulkhead at FR33 [for discrepancies, such as buckling, deformations, cracks, loose countersinks, scratches, dents, and corrosion], and depending on findings, repair of the affected structure.

    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-2016-9303.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    Costs of Compliance

    We estimate that this proposed AD affects 133 airplanes of U.S. registry.

    We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $90,440, or $680 per product.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Dassault Aviation: Docket No. FAA-2016-9303; Directorate Identifier 2016-NM-093-AD. (a) Comments Due Date

    We must receive comments by December 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Dassault Aviation airplanes specified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category, all manufacturer serial numbers.

    (1) Model FAN JET FALCON and FAN JET FALCON SERIES C, D, E, F, and G airplanes.

    (2) Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a determination that inspections for discrepancies of the fuselage bulkhead at frame (FR) 33 are necessary. We are issuing this AD to detect and correct discrepancies of the fuselage bulkhead; such discrepancies could result in the deterioration and subsequent failure of the bulkhead, which could result in rapid decompression of the airplane and consequent injury to occupants.

    (f) Compliance

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

    (g) Repetitive Inspections

    Before exceeding 5,000 total flight cycles since first flight of the airplane, or within 500 flight cycles after the effective date of this AD, whichever occurs later: Do a detailed inspection for discrepancies of the fuselage bulkhead at FR 33 using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature. Repeat the inspection thereafter at intervals not to exceed 5,000 flight cycles.

    (h) Repair

    If any discrepancy is found during any inspection required by paragraph (g) of this AD: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Dassault Aviation's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature. Repair of an airplane as required by this paragraph does not constitute terminating action for the repetitive actions required by paragraph (g) of this AD, unless specified otherwise in the repair instructions.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1137; fax: 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0096, dated May 19, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9303.

    Issued in Renton, Washington, on October 26, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26325 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9302; Directorate Identifier 2016-NM-037-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for Fokker Services B.V. Model F28 Mark 0100 series airplanes equipped with Rolls-Royce TAY 650-15 engines. This AD was prompted by reports of uncontained engine fan blade failures in Rolls-Royce TAY 650-15 engines. The fan blade failures occurred due to cracking of the fan blades, which was initiated under conditions of fan blade flutter during engine ground operation. This proposed AD would require installation of a caution placard in the flight compartment. We are proposing this AD to prevent certain engine thrust settings during ground operation, which can cause the fan blades to flutter and fail, resulting in damage to the airplane and possible injury to personnel.

    DATES:

    We must receive comments on this proposed AD by December 16, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone: +31 (0)88-6280-350; fax: +31 (0)88-6280-111; email: [email protected]; Internet http://www.myfokkerfleet.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9302; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9302; Directorate Identifier 2016-NM-037-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive Airworthiness Directive 2013-0141, dated July 12, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Fokker Services B.V. Model F28 Mark 0100 series airplanes equipped with Rolls-Royce TAY 650-15 engines. The MCAI states:

    In the past, two F28 [Mark] 0100 aeroplanes with TAY [650-15] engines were involved in incidents as a result of uncontained engine fan blade failures. The fan blade failures occurred due to cracking of the fan blades, which was initiated under conditions of fan blade flutter. This fan blade flutter can occur during stabilized reverse thrust operation within a specific N1 RPM-range [revolutions per minute], known as Keep Out Zone (KOZ), which has been identified to be between 57% and 75% N1 RPM.

    To address this potential unsafe condition [which can result in damage to the airplane and possible injury to personnel], CAA-NL issued AD (BLA) nr. 2002-119 for the aeroplane, while Luftfahrt-Bundesamt (LBA) Germany issued AD (LTA) 2002-090 (later revised) for the Rolls-Royce Tay [650-15] engines. More recently, LBA AD 2002-090R1 was superseded by EASA AD 2013-0070.

    During stabilized forward thrust operation of an engine with the aeroplane stationary on the ground (e.g. maintenance engine ground running), the same type of fan blade flutter can occur. To ensure maintenance personnel awareness of the engine speed KOZ when performing engine ground running (in forward or reverse thrust), a caution placard must be introduced in the flight compartment.

    For the reasons described above, this [EASA] AD requires the installation of a caution placard in the flight compartment, between the Standby Engine Indicator (SEI) and the Multi-Functional Display Unit (MFDU).

    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-2016-9302.

    Related Service Information Under 1 CFR Part 51

    We reviewed Fokker Service Bulletin SBF100-11-027, dated April 18, 2013. This service information describes procedures for the installation of a caution placard.

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

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    Costs of Compliance

    We estimate that this proposed AD affects 4 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Install Placard 1 work-hour × $85 per hour = $85 $46 $131 $524
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Fokker Services B.V.: Docket No. FAA-2016-9302; Directorate Identifier 2016-NM-037-AD. (a) Comments Due Date

    We must receive comments by December 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Fokker Services B.V. Model F28 Mark 0100 series airplanes, certificated in any category, all serial numbers if equipped with Rolls-Royce TAY 650-15 engines.

    (d) Subject

    Air Transport Association (ATA) of America Code 11, Placards and Markings.

    (e) Reason

    This AD was prompted by reports of uncontained engine fan blade failures in Rolls-Royce TAY 650-15 engines. The fan blade failures occurred due to cracking of the fan blades, which was initiated under conditions of fan blade flutter during engine ground operation. We are issuing this AD to prevent certain engine thrust settings during ground operation, which can cause the fan blades to flutter and fail, resulting in damage to the airplane and possible injury to personnel.

    (f) Compliance

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

    (g) Install Caution Placard

    Within 6 months after the effective date of this AD, install a caution placard in the flight compartment, between the standby engine indicator (SEI) and the multi-functional display unit (MFDU), in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-11-027, dated April 18, 2013.

    Note 1 to paragraph (g) of this AD: Additional information can be found in Fokker All Operators Message AOF100.177 #05, dated April 18, 2013.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0141, dated July 12, 2013, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9302.

    (2) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone: +31 (0)88-6280-350; fax: +31 (0)88-6280-111; email: [email protected]; Internet http://www.myfokkerfleet.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on October 25, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26324 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9128; Directorate Identifier 2016-NE-19-AD] RIN 2120-AA64 Airworthiness Directives; CFM International S.A. Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain CFM International S.A. (CFM) CFM56-5B turbofan engines. This proposed AD was prompted by reports of the failure of the radial drive shaft (RDS) on CFM CFM56-5B engines. This proposed AD would require removal of the RDS assembly and the RDS outer housing and their replacement with parts eligible for installation. We are proposing this AD to prevent failure of the RDS, which could lead to failure of one or more engines, loss of thrust control, and damage to the airplane.

    DATES:

    We must receive comments on this proposed AD by December 16, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected] You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9128; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Kyle Gustafson, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7183; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9128; Directorate Identifier 2016-NE-19-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received 9 reports of failure of the RDS on CFM CFM56-5B engines. CFM has identified an affected population of RDSs suspected of generating unbalance levels that would lead to failure of the RDS bearing. This proposed AD would require removal of the RDS assembly and the RDS outer housing for the affected population. This condition, if not corrected, could result in failure of the RDS, which could lead to failure of one or more engines, loss of thrust control, and damage to the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed CFM Service Bulletin (SB) CFM56-5B S/B 72-0934, dated August 1, 2016. The service information describes procedures for removal of the suspect RDS assembly and the RDS outer housing. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require removal of the RDS assembly and the RDS outer housing and their replacement with parts eligible for installation.

    Differences Between This Proposed AD and the Service Information

    CFM SB CFM56-5B S/B 72-0934, dated August 1, 2016, separates the affected RDS population into three batches with different removal dates for each batch. This proposed AD requires removal of the affected RDS assembly and RDS outer housing within 6 months of the effective date after this AD.

    Costs of Compliance

    We estimate that this proposed AD affects eight engines installed on airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts
  • cost
  • Cost
  • per
  • product
  • Cost
  • on U.S.
  • operators
  • Removal and replacement of the RDS assembly and RDS outer housing 6 work-hours × $85 per hour = $510 $37,000 $37,510 $300,080
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): CFM International S.A.: Docket No. FAA-2016-9128; Directorate Identifier 2016-NE-19-AD. (a) Comments Due Date

    We must receive comments by December 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to CFM International S.A. (CFM) CFM56-5B series, CFM56-5B/P series, CFM56-5B/3 series, CFM56-5B/2P series, CFM56-5B/P1 series, CFM56-5B/2P1 series, and CFM56-5B/3B1 series engines with a radial drive shaft (RDS) serial number (S/N) listed in Appendix A of CFM Service Bulletin (SB) CFM56-5B S/B 72-0934, dated August 1, 2016, installed.

    (d) Subject

    Air Transport Association (ATA) of America Code 83, Accessory Gearboxes.

    (e) Unsafe Condition

    This AD was prompted by reports of the failure of the RDS on CFM CFM56-5B engines. We are issuing this AD to prevent failure of the RDS, which could lead to failure of one or more engines, loss of thrust control, and damage to the airplane.

    (f) Compliance

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

    Within 6 months after the effective date of this AD, remove the RDS assembly, part number (P/N) 305-165-101-0, and RDS outer housing, P/N 301-295-106-0, and replace with parts eligible for installation.

    (g) Installation Prohibition

    After the effective date of this AD, do not install on any engine an RDS with an S/N identified in Appendix A of CFM S/B No. CFM56-5B S/B 72-0934, dated August 1, 2016.

    (h) Alternative Methods of Compliance (AMOCs)

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

    (i) Related Information

    (1) For more information about this AD, contact Kyle Gustafson, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7183; fax: 781-238-7199; email: [email protected]

    (2) CFM SB CFM56-5B S/B 72-0934, dated August 1, 2016, can be obtained from CFM using the contact information in paragraph (i)(3) of this proposed AD.

    (3) For service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected]

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

    Issued in Burlington, Massachusetts, on October 21, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26010 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2012-1327; Directorate Identifier 2012-NE-47-AD] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede airworthiness directive (AD) 2014-16-10 that applies to all Rolls-Royce plc (RR) RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines. AD 2014-16-10 requires initial and repetitive ultrasonic inspections (UIs) of the affected low-pressure (LP) compressor blades. Since we issued AD 2014-16-10, RR issued revised service information to reduce the inspection threshold. This proposed AD would retain the UIs in AD 2014-16-10 while applying the revised inspection threshold. We are proposing this AD to prevent LP compressor blade airfoil separations, damage to the engine, and damage to the airplane.

    DATES:

    We must receive comments on this proposed AD by December 16, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Rolls-Royce plc, P.O. Box 31, Derby DE24 8BJ, UK; phone: 44 0 1332 242424; fax: 44 0 1332 249936. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2012-1327; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the mandatory continuing airworthiness information, regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this NPRM. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1327; Directorate Identifier 2012-NE-47-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    On August 1, 2014, we issued AD 2014-16-10, Amendment 39-17934 (79 FR 48961, August 19, 2014), (“AD 2014-16-10”) for all RR RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines. AD 2014-16-10 requires initial and repetitive UIs of the affected LP compressor blades. AD 2014-16-10 resulted from LP compressor blade partial airfoil blade release events. We issued AD 2014-16-10 to prevent LP compressor blade airfoil separations, damage to the engine, and damage to the airplane.

    Actions Since AD 2014-16-10 Was Issued

    Since we issued AD 2014-16-10, RR issued Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AH465, Revision 2, dated May 11, 2016. The Alert NMSB reduced the inspection threshold for UI of the LP compressor blades. Also since we issued AD 2014-16-10, the European Aviation Safety Agency (EASA) issued a correction to AD 2016-0141, dated July 20, 2016, requiring the revised inspection threshold.

    Related Service Information Under 1 CFR Part 51

    RR has issued Alert NMSB RB.211-72-AH465, Revision 2, dated May 11, 2016. The NMSB describes procedures for performing a UI of the LP compressor blades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require initial and repetitive UIs of the affected LP compressor blades. This proposed AD would require conducting the UIs at a reduced inspection threshold.

    Costs of Compliance

    We estimate that this proposed AD affects 56 engines installed on airplanes of U.S. registry. We also estimate that it would take about 40 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $190,400.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify that the proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2014-16-10, Amendment 39-17934 (79 FR 48961, August 19, 2014), and adding the following new AD: Rolls-Royce plc: Docket No. FAA-2012-1327; Directorate Identifier 2012-NE-47-AD. (a) Comments Due Date

    We must receive comments by December 16, 2016.

    (b) Affected ADs

    This AD supersedes AD 2014-16-10, Amendment 39-17934 (79 FR 48961, August 19, 2014).

    (c) Applicability

    This AD applies to Rolls-Royce plc (RR) RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines, with low-pressure (LP) compressor blade, part number (P/N) FK23411, FK25441, FK25968, FW11901, FW15393, FW23643, FW23741, FW23744, KH23403, or KH23404, installed.

    (d) Unsafe Condition

    This AD was prompted by LP compressor blade partial airfoil release events. We are issuing this AD to prevent LP compressor blade airfoil separations, damage to the engine, and damage to the airplane.

    (e) Compliance

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

    (1) Ultrasonic Inspection (UI) of LP Compressor Blade

    (i) After the effective date of this AD, for LP compressor blades that have accumulated less than 1,800 cycles since new (CSN) or cycles since last inspection (CSLI), perform a UI of each LP compressor blade before the blade exceeds 2,400 CSN or CSLI. Repeat the UI of the blade before exceeding 2,400 CSLI.

    (ii) For any LP compressor blade that exceeds 1,800 CSN on the effective date of this AD, inspect the blade before exceeding 600 flight cycles after the effective date of this AD or before exceeding 3,600 CSN, whichever occurs first. Thereafter, perform the repetitive inspections before exceeding 2,400 CSLI.

    (iii) For any blade that exceeds 2,200 CSLI on September 23, 2014 (the effective date of AD 2014-16-10), inspect the blade before exceeding 3,000 CSLI or before further flight, whichever occurs later. Thereafter, perform the repetitive inspections before exceeding 2,400 CSLI.

    (iv) Use paragraph 3, excluding subparagraphs 3.C.(2)(b), 3.D.(2) and 3.G, of RR Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AH465, Revision 2, dated May 11, 2016, to perform the inspections required by this AD.

    (2) Use of Replacement Blades

    (i) After the effective date of this AD, LP compressor blade, P/N FK23411, FK25441, FK25968, FW11901, FW15393, FW23643, FW23741, FW23744, KH23403, or KH23404, that has accumulated at least 2,400 CSN or CSLI is eligible for installation if the blade has passed the UI required by this AD.

    (ii) Reserved.

    (f) Credit for Previous Actions

    You may take credit for the UI required by paragraph (e) of this AD, if you performed the UI before the effective date of this AD using RR NMSB No. RB.211-72-G702, dated May 23, 2011; or RR NMSB No. RB.211-72-G872, Revision 2, dated March 8, 2013, or earlier revisions; or RR NMSB No. RB.211-72-H311, dated March 8, 2013; or the Engine Manual E-Trent-1RR, Task 72-31-11-200-806.

    (g) Alternative Methods of Compliance (AMOCs)

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

    (h) Related Information

    (1) For more information about this AD, contact Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email: [email protected]

    (2) Refer to MCAI European Aviation Safety Agency AD 2016-0141, dated July 20, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2012-1327.

    (3) RR Alert NMSB RB.211-72-AH465, Revision 2, dated May 11, 2016, can be obtained from RR, using the contact information in paragraph (h)(4) of this AD.

    (4) For service information identified in this AD, contact Rolls-Royce plc, P.O. Box 31, Derby DE24 8BJ, UK; phone: 44 0 1332 242424; fax: 44 0 1332 249936.

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

    Issued in Burlington, Massachusetts, on October 26, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26334 Filed 10-31-16; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0244; FRL-9954-76-Region 9] Approval and Promulgation of Implementation Plans; State of California; Coachella Valley; Attainment Plan for 1997 8-Hour Ozone Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) revisions submitted by the State of California to provide for attainment of the 1997 8-hour ozone national ambient air quality standards in the Coachella Valley nonattainment area. The EPA is proposing to find the emissions inventories to be acceptable and to approve the reasonably available control measures, transportation control strategies and measures, rate of progress and reasonable further progress demonstrations, attainment demonstration, vehicle miles traveled offset demonstration and the transportation conformity motor vehicle emission budgets.

    DATES:

    Any comments must be submitted by December 1, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0244 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: The index to the docket for this action is available electronically on the www.regulations.gov Web site and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section below.

    FOR FURTHER INFORMATION CONTACT:

    Tom Kelly, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3856, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. The 8-Hour Ozone Standards and the Coachella Valley Nonattainment Area A. Background on the 8-Hour Ozone Standards B. The Coachella Valley 8-Hour Ozone Nonattainment Area II. CAA and Regulatory Requirements for Ozone Nonattainment SIPs III. CARB's SIP Submittals to Address the 1997 8-Hour Ozone Standards in the Coachella Valley Nonattainment Area A. CARB's SIP Submittals B. CAA Procedural and Administrative Requirements for SIP Submittals IV. Review of the Coachella Valley Ozone Plan A. Emissions Inventories B. Reasonably Available Control Measures Demonstration and Adopted Control Strategy C. Attainment Demonstration D. Rate of Progress and Reasonable Further Progress Demonstrations E. Motor Vehicle Emissions Budgets for Transportation Conformity F. Vehicle Miles Travelled Emissions Offset Demonstration V. The EPA's Proposed Actions A. The EPA's Proposed Approvals B. Request for Public Comments VI. Statutory and Executive Order Reviews I. The 8-Hour Ozone Standards and the Coachella Valley Nonattainment Area A. Background on the 8-Hour Ozone Standards

    Ground-level ozone is formed when oxides of nitrogen (NOX) and volatile organic compounds (VOC) react in the presence of sunlight.1 These two pollutants, referred to as ozone precursors, are emitted by many types of pollution sources, including on- and off-road motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints.

    1 California plans use the term Reactive Organic Gases (ROG) for VOC. These terms are essentially synonymous. For simplicity, we use the term VOC herein to mean either VOC or ROG.

    Scientific evidence indicates that adverse public health effects occur following exposure to ozone, particularly in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. Ozone exposure also has been associated with increased susceptibility to respiratory infections, medication use, doctor visits, as well as emergency department visits and hospital admissions for individuals with lung disease. Ozone exposure also increases the risk of premature death from heart or lung disease. Children are at increased risk from exposure to ozone because their lungs are still developing and they are more likely to be active outdoors, which increases their exposure. See “Fact Sheet, Proposal to Revise the National Ambient Air Quality Standards for Ozone” (January 6, 2010); 75 FR 2938 (January 19, 2010).

    In 1979, under section 109 of the Clean Air Act (CAA), the EPA established primary and secondary national ambient air quality standards (NAAQS or standards) for ozone at 0.12 parts per million (ppm) averaged over a 1-hour period. See 44 FR 8202 (February 8, 1979).

    On July 18, 1997, the EPA revised the primary and secondary standards for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period (“1997 8-hour ozone standards”). See 62 FR 38856 (July 18, 1997). The EPA set the 1997 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the previous 1-hour ozone standards were set. The EPA determined that the 1997 8-hour standards would be more protective of human health, especially for children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.2 In 2008, the EPA revised and strengthened the NAAQS for ozone by setting the acceptable level of ozone in the ambient air at 0.075 ppm, averaged over an 8-hour period. 73 FR 16436 (March 27, 2008). In 2015, the EPA further tightened the 8-hour ozone standards to 0.070 ppm. 80 FR 65292 (October 26, 2015). While the 1979 1-hour ozone standards and the 1997 8-hour ozone standards have been revoked, certain requirements that had applied under the revoked standards continue to apply under the anti-backsliding provisions of CAA section 172(e), including an approved attainment plan.

    2 On March 27, 2008, the EPA revised and further strengthened the primary and secondary NAAQS for ozone by setting the acceptable level of ozone in the ambient air at 0.075 ppm, averaged over an 8-hour period (“2008 8-hour ozone standards”). See 73 FR 16436. On May 21, 2012, the EPA designated areas of the country with respect to the 2008 8-hour ozone standards. See 77 FR 30088 and 40 CFR 81.330. On October 1, 2015, the EPA again strengthened the primary and secondary NAAQS for ozone in ambient air to 0.070 ppm averaged over 8 hours. See 80 FR 65292. For nonattainment areas classified as “serious” under the 2008 ozone standards, such as the Coachella Valley, attainment SIPs were due on July 21, 2016. We will evaluate the 2008 attainment SIPs in the timeframes specified by the CAA. We have not yet set SIP submittal dates for the 2015 8-hour ozone standards. Today's action applies only to the 1997 8-hour ozone standards and does not address requirements for the 2008 and 2015 8-hour ozone standards.

    B. The Coachella Valley 8-Hour Ozone Nonattainment Area

    Following promulgation of a new or revised NAAQS, the EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the standards. Effective June 15, 2004, we designated nonattainment areas for the 1997 8-hour ozone standards. See 69 FR 23858 (April 30, 2004). The designations and classifications for the 1997 8-hour ozone standards for California areas are codified at 40 CFR 81.305. In a rule governing certain facets of implementation of the 8-hour ozone standards (the Phase 1 Rule), the EPA classified the Coachella Valley as “Serious” for the 1997 8-hour ozone standards, with an attainment date no later than June 15, 2013. See 69 FR 23858 (April 30, 2004). On November 28, 2007, the California Air Resources Board (CARB or State) requested that the EPA reclassify the Coachella Valley 8-hour ozone nonattainment area from “Serious” to “Severe-15.” The EPA granted the reclassification, effective June 4, 2010, with an attainment date of not later than June 15, 2019. See 75 FR 24409 (May 5, 2010).

    The Coachella Valley area is located within Riverside County. For a precise description of the geographic boundaries of the area, see 40 CFR 81.305. The Coachella Valley is under the jurisdiction of the South Coast Air Quality Management District (SCAQMD or District). The District and CARB are responsible for adopting and submitting a state implementation plan (SIP) to attain the 1997 8-hour ozone standards for nonattainment areas in their jurisdiction.

    Air quality in the Coachella Valley has steadily improved in recent years. Design values have declined from 0.108 ppm in 2003 to 0.088 ppm in 2015.3 Design values are used to designate and classify nonattainment areas, as well as to assess progress towards meeting the air quality standards.4

    3 Design values for 2000 to 2006 are contained in Figure 8-5 of the 2007 AQMP. Design values for 2005 to 2015 are contained in the Air Quality Subsystem (AQS) Preliminary Design Value Report for the Coachella Valley and Western Mojave Desert (September 7, 2016). These documents are in the docket for today's action.

    4 For more information about ozone design values, see 40 CFR 50, Appendix I.

    The Coachella Valley is downwind from the South Coast Air Basin, which is also regulated by the SCAQMD. The South Coast Air Basin's continued progress toward meeting the 1997 Ozone standards is critical to the Coachella Valley attaining the 1997 ozone standards. The SCAQMD's Final 2007 Air Quality Management Plan (2007 AQMP) states, “pollutant transport from the South Coast Air Basin to the Coachella Valley is the primary cause of its ozone nonattainment status.” 5 The 2007 AQMP cites several studies that confirm the transport between the two air basins.6 It also describes the late daily peak in ozone concentrations, 6:00 p.m. for Palm Springs, as indicative of pollution that has been transported. The 2007 AQMP states, “if this peak [in ozone concentrations] were locally generated, it would be occurring near mid-day and not in the late afternoon or early evening.” 7 The 2007 AQMP also compares the relative magnitudes of VOC and NOX emissions in the Coachella Valley and the South Coast Air Basin, showing average annual VOC emissions to be 30-40 times greater in the South Coast Air Basin than in the Coachella Valley, and average annual NOX emissions to be more than 20 times greater in the South Coast Air Basin.8

    5 “Final 2007 Air Quality Management Plan,” South Coast Air Quality Management District, June 2007, see page 8-1.

    6 2007 AQMP at 8-4 (citing R.W. Keith (SCAQMD) A Climatological/Air Quality Profile, California South Coast Air Basin, 1980; E.K. Kauper (Pollution Res. & Control Corp.), Coachella Valley Air Quality Study, Final Report, (County Contract & U.S. Public Health Service Grant No. 69-A-0610), 1971; P.J. Drivas and F.H. Shair, A Tracer Study of Pollutant Transport in the Los Angeles Area, Atmos. Environ. 8: 1155-1163. 4, 1974; T.B. Smith et al. (ARB Contract to MRI/Caltech), “The Impact of Transport from the South Coast Air Basin on Ozone Levels in the Southeast Desert Air Basin,” 1983).

    7 2007 AQMP at 8-4.

    8 2007 AQMP at 8-4, Table 8-2.

    II. CAA and Regulatory Requirements for Ozone Nonattainment SIPs

    States must implement the 1997 8-hour ozone standards under Title 1, Part D of the CAA, which includes section 172, “Nonattainment plan provisions,” and subpart 2, “Additional Provisions for Ozone Nonattainment Areas” (sections 181-185).

    In order to assist states in developing effective plans to address ozone nonattainment problems, the EPA issued an implementation rule for the 1997 8-hour ozone standards (“1997 Ozone Implementation Rule”). This rule was finalized in two phases. The first phase of the rule addressed classifications for the 1997 8-hour ozone standards, applicable attainment dates for the various classifications, and the timing of emissions reductions needed for attainment. See 69 FR 23951 (April 30, 2004). The second phase addressed SIP submittal dates and the requirements for reasonably available control technology and measures (RACT and RACM), reasonable further progress (RFP), modeling and attainment demonstrations, contingency measures, and new source review. See 70 FR 71612 (November 29, 2005). The rule was codified at 40 CFR part 51, subpart X.

    The EPA announced the revocation of the 1997 8-hour ozone NAAQS and the anti-backsliding requirements that apply upon revocation, in a rulemaking that established final implementation rules for the 2008 8-hour ozone NAAQS. 80 FR 12264 (March 6, 2015). Consistent with the anti-backsliding provisions in CAA section 172(e), the EPA included anti-backsliding requirements that apply upon revocation of the 1997 8-hour ozone NAAQS. Notwithstanding revocation of the 1997 8-hour ozone NAAQS, areas that were designated as nonattainment for the 1997 8-hour ozone NAAQS at the time the standards were revoked continue to be subject to certain SIP requirements that had previously applied based on area classifications for the standards. Id. at 12296; 40 CFR 51.1105 and 51.1100(o). Thus, in general, the Coachella Valley remains subject to the requirements of the 1997 8-hour ozone NAAQS applicable to “Severe” nonattainment areas.

    We discuss the CAA and regulatory requirements for 1997 8-hour ozone nonattainment plans in more detail below.

    III. CARB's SIP Submittals To Address the 1997 8-Hour Ozone Standards in the Coachella Valley Nonattainment Area A. CARB's SIP Submittals

    Designation of an area as nonattainment starts the process for a state to develop and submit to the EPA a SIP providing for attainment of the NAAQS under title 1, part D of the CAA. For areas designated as nonattainment for the 1997 8-hour ozone NAAQS effective June 15, 2004, this attainment SIP was due by June 15, 2007. See CAA section 172(b). CARB made the following five SIP submittals to address the CAA planning requirements for attaining the 1997 8-hour ozone NAAQS for the Coachella Valley (and other areas as noted):

    • “Final 2007 Air Quality Management Plan,” South Coast Air Quality Management District, June 2007 (2007 AQMP); 9

    9See letter from James N. Goldstene, Executive Officer, CARB, to Wayne Nastri, Regional Administrator, EPA Region 9, November 28, 2007 with enclosures.

    • “2007 State Strategy for the California State Implementation Plan,” Release Date April 26, 2007 and Appendices A—G, CARB, Release Date May 7, 2007 (2007 State Strategy); 10

    10See letter from James N. Goldstene, Executive Officer, CARB, to Wayne Nastri, Regional Administrator, EPA Region 9, November 16, 2007 with enclosures.

    • “Status Report on the State Strategy for California's 2007 State Implementation Plan (SIP) and Proposed Revision to the SIP Reflecting Implementation of the 2007 State Strategy,” CARB, Release Date: March 24, 2009 (2009 State Strategy Status Report);

    • “Progress Report on Implementation of PM2.5 State Implementation Plans (SIP) for the South Coast and San Joaquin Valley Air Basins and Proposed SIP Revisions,” CARB, Release Date March 29, 2011 (2011 State Strategy Progress Report); and

    • “Staff Report, Proposed Updates to the 1997 8-Hour Ozone Standard, State Implementation Plans; Coachella Valley and Western Mojave Desert,” CARB, Release Date: September 22, 2014 (2014 SIP Update).11

    11See letter from Richard Corey, Executive Officer CARB, to Jared Blumenfeld, Regional Administrator, U.S. EPA, dated November 6, 2014 with enclosures.

    Additionally, on March 24, 2008, CARB submitted an Ozone Early Progress Plan 12 for several areas, including the Coachella Valley. The plan consisted of motor vehicle emissions budgets for transportation conformity. The EPA found the Coachella Valley NOX and VOC budgets adequate for the 1997 ozone standards, effective May 22, 2008. See 73 FR 25694 (May 7, 2008).

    12 “Early Progress Plans Demonstrating Progress Toward Attaining the 8-hour National Air Quality Standards for Ozone and Setting Transportation Conformity Budgets for Ventura County, Antelope Valley—Western Mojave Desert, Coachella Valley, Eastern Kern County, and Imperial County” (revised), CARB (February 27, 2008).

    In today's proposal, we refer to the portions of these documents relevant to the Coachella Valley collectively as the “Coachella Valley Ozone Plan” or “the Plan.” EPA has already approved portions of these documents in actions for other nonattainment areas.13 Similarly, in today's proposal, we are evaluating and proposing action on only those portions of the 2007 AQMP that are relevant to attainment of the 1997 8-hour ozone NAAQS in the Coachella Valley. Below is a description of the portions that are relevant to the Coachella Valley.

    13 For example, portions of the 2007 AQMP, 2007 State Strategy, and the 2011 State Strategy Progress Report were approved in EPA actions on the SCAQMD Attainment Plan for the 1997 8-hour Ozone Standards. See 77 FR 12674 (March 1, 2012) and 79 FR 52539 (September 3, 2014).

    2007 AQMP

    The 2007 AQMP discusses attainment of the 1997 ozone NAAQS for both the South Coast Air Basin and Coachella Valley, and the 1997 p.m.2.5 NAAQS for the South Coast Air Basin. We are only acting on the ozone portions of the 2007 AQMP, and only on the portions applicable to the Coachella Valley, which includes the following sections of the 2007 AQMP: the emissions estimates, RFP demonstrations, and motor vehicle emission budgets for the Coachella Valley in Chapter 8; the detailed base and future emission inventories in Appendix III; the modeling for the attainment demonstration in Chapter 5 and Appendix V; the control strategy in Chapters 4 and 7; and the RACM discussion in Chapter 6 and Appendix VI.

    State Strategy

    The 2007 State Strategy, as amended by the 2009 State Strategy Status Report and 2011 State Strategy Progress Report, provides a RACM demonstration for mobile sources. The relevant portions of the 2007 State Strategy include Chapter 3, which describes California's SIP commitments, and Chapter 5, which lists individual measures in more detail, as part of the State's submittal. We note, however, that other portions of the 2007 State Strategy contain additional information relevant to Coachella Valley, such as emissions reductions from the Strategy contained in Appendix A. Appendix F of the 2011 State Strategy Progress Report provides revised control measure commitments and a revised rule implementation schedule for the 2007 AQMP.

    2014 SIP Update

    The 2014 SIP Update, which covers both the Coachella Valley and Western Mojave Desert 1997 8-hour ozone nonattainment areas, updates the following sections of the 2007 AQMP: emissions inventories; RFP demonstration, and vehicle miles travelled (VMT) offset demonstration. The 2014 SIP Update also updates the motor vehicle emissions budgets in the Ozone Early Progress Plan mentioned above. It also revises the attainment targets for NOX and VOC emissions, using the same percentage reduction from the 2002 baseline as planned in the 2007 AQMP. Finally, the 2014 SIP Update (and 2007 AQMP) also contain contingency measures to be implemented in the event the area fails to meet an RFP milestone or fails to attain by the applicable date, as required by CAA section 172(c)(9). We are not proposing action on these contingency measures at this time. Contingency measures are a distinct provision of the Clean Air Act that we may act on separately from the attainment requirements.

    B. CAA Procedural and Administrative Requirements for SIP Submittals

    CAA sections 110(a)(1) and (2) and 110(l) require a state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity for a public hearing was provided consistent with the EPA's implementing regulations in 40 CFR 51.102.

    The SCAQMD and CARB provided public notice and an opportunity for public comment through public comment periods, and held public hearings prior to adopting the components of the Coachella Valley Ozone Plan. Hearing and adoption dates are shown in Table 1. The SCAQMD's and CARB's submittals both include proof of publication for notices of the District's and CARB's public hearings, as evidence that all hearings were properly noticed. Therefore, we find the submittals meet the procedural requirements of CAA sections 110(a) and 110(l).

    Table 1—Agencies and Adoption Dates for the Coachella Valley Attainment Plan for the 1997 Ozone Standards Agency/Submittal Start of public notice Hearing and adoption dates Board
  • resolution
  • SCAQMD/2007 AQMP March 2, 2007 June 1, 2007 07-9 CARB/2007 State Strategy May 7, 2007 June 21 and 22, 2007, and July 27, 2007 07-28 CARB/2007 AQMP August 10, 2007 September 27, 2007 07-41 CARB/2009 State Strategy Status Report March 24, 2009 April 23, 2009 09-34 CARB/2011 State Strategy Progress Report March 29, 2011 April 28, 2011 11-24 CARB/2014 SIP Update September 22, 2014 October 24, 2014 14-29

    CAA section 110(k)(1)(B) requires that the EPA determine whether a SIP submittal is complete within 60 days of receipt. This section of the CAA also provides that any plan that the EPA has not affirmatively determined to be complete or incomplete will be deemed complete by operation of law six months after the date of submittal. The EPA's SIP completeness criteria are found at 40 CFR part 51, Appendix V. The EPA's completeness determinations for each submittal are shown in Table 2.

    Table 2—Submittals and Completeness Determinations for the Coachella Valley Ozone Plan Submittal Submittal date Completeness date 2007 State Strategy November 16, 2007 May 14, 2008. 2007 AQMP November 28, 2007 May 26, 2008. 2009 State Strategy Status Report August 12, 2009 February 8, 2010. 2011 State Strategy Progress Report July 29, 2011 January 25 2012. 2014 SIP Update November 6, 2014 May 5, 2015. IV. Review of the Coachella Valley Ozone Plan A. Emissions Inventories 1. Requirements for Emissions Inventories

    CAA section 182(a)(1) requires each state with an ozone nonattainment area classified under subpart 2 to submit a “comprehensive, accurate, current inventory of actual emissions from all sources” of the relevant pollutants in accordance with guidance provided by the Administrator. While this inventory is not a specific requirement under the anti-backsliding provisions at 40 CFR 51.1105 and 51.1100(o), it provides support for demonstrations required under these anti-backsliding rules. Additionally, a baseline emissions inventory is needed for the attainment demonstration and for meeting RFP requirements. EPA's 1997 Ozone Implementation Rule identifies 2002 as the baseline year for the SIP planning emissions inventory. See 69 FR 23980 (October 27, 2004). EPA emissions inventory guidance sets specific planning requirements pertaining to future milestone years for reporting RFP and to attainment demonstration years.14 Key RFP analysis years in the RFP demonstration include 2008 and every subsequent 3 years until the attainment date.

    14 “Emission Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations” (EPA-454/R-05-001, August 2005, updated November 2005) and “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standards—Phase 2” (70 FR 71612).

    We have evaluated the emissions inventories in the Coachella Valley Ozone Plan to determine if they are consistent with EPA guidance and adequate to support the Plan's RACM, RFP, rate of progress (ROP) and attainment demonstrations.

    2. Emissions Inventories in the Coachella Valley Ozone Plan

    Appendix A of the 2014 SIP Update contains detailed emissions inventories for the Coachella Valley. A partial summary of this information is contained in Table 3. The average summer weekday emissions typical of the ozone season are used for the 2002 base year planning inventory and the 2018 attainment year.15 These inventories incorporate reductions from federal, state, and district control measures received by CARB through September 2012.

    15 “Attainment year” refers to the ozone season immediately preceding a nonattainment area's attainment date. In the case of the Coachella Valley, the applicable attainment date is June 15, 2019, and the ozone season immediately preceding that date will occur in year 2018.

    Table 3—Coachella Valley NOX and VOC Emissions Inventory Summaries for the 2002 Base Year and 2018 Attainment Year [Average summer weekday emissions in tons per day] a Category NOX 2002 2018 VOC 2002 2018 Stationary Sources 0.875 0.851 3.067 4.182 Area Sources 0.492 0.305 5.061 3.863 On-Road Mobile Sources 33.009 10.558 9.294 2.897 Other Mobile Sources 8.912 5.109 5.287 3.919 Totals b 43.287 16.823 22.709 14.861 a Source: 2014 SIP Update, Appendix A, Table A-1. b Because of rounding conventions, source categories may not add to the exact emission totals.

    The on-road motor vehicles inventory category consists of trucks, automobiles, buses, and motorcycles. California's model for estimating emissions from on-road motor vehicles operating in California is referred to as “EMFAC” (short for EMission FACtor). EMFAC has undergone many revisions over the years. At the time the 2014 SIP Update was submitted, EMFAC2011 was the model approved by the EPA for estimating on-road motor source emissions in California.16 See 78 FR 14533 (March 6, 2013). Appendix D of the 2014 SIP Update contains the latest on-road motor vehicle summer planning VOC and NOX inventories, vehicle population, VMT and trips for each EMFAC vehicle class category for the Coachella Valley. The motor vehicle emissions in the Plan are based on CARB's EMFAC2011 emission factor model and the latest planning assumptions from Southern California Association of Government's (SCAG's) 2012-2035 Regional Transportation Plan.17

    16 EMFAC2011's approval is granted in 78 FR 14533. More recently, the EPA approved EMFAC2014 as the model for estimating on-road emissions. That approval allowed the continued use of EMFAC2011 until December 14, 2017. See 80 FR 77337.

    17 SCAG's Regional Transportation Plan 2012-2035, including Amendment #1 and #2 and the Air Quality Conformity Analysis. April 2012. Federal Highway Administration approval July 15, 2013.

    The 2014 SIP Update contains off-road VOC and NOX inventories developed by CARB using category-specific methods and models.18 The off-road mobile source category includes aircraft, trains, ships, and off-road vehicles and equipment used for construction, farming, commercial, industrial, and recreational activities.

    18 Detailed information on CARB's off-road motor vehicle emissions inventory methodologies is found at: http://www.arb.ca.gov/msei/categories.htm#offroad_motor_vehicles.

    The stationary source category of the emissions inventory includes non-mobile, fixed sources of air pollution comprised of individual industrial, manufacturing, and commercial facilities. Examples of stationary sources (a.k.a., point sources) include fuel combustion (e.g., electric utilities), waste disposal (e.g., landfills), cleaning and surface coatings (e.g., printing), petroleum production and marketing, and industrial processes (e.g., chemical). Stationary source operators report to the District the process and emissions data used to calculate emissions from point sources. The District then enters the information reported by emission sources into the California Emission Inventory Development and Reporting System (CEIDARS) database.19

    19 The CEIDARS database consists of two categories of information: source information and utility information. Source information includes the basic inventory information generated and collected on all point and area sources. Utility information generally includes auxiliary data, which helps categorize and further define the source information. Used together, CEIDARS is capable of generating complex reports based on a multitude of category and source selection criteria.

    The area sources category includes aggregated emissions data from processes that are individually small and widespread or not well-defined point sources. The area source subcategories include solvent evaporation (e.g., consumer products and architectural coatings) and miscellaneous processes (e.g., residential fuel combustion and farming operations). Emissions from these sources are calculated from product sales, population, employment data, and other parameters for a wide range of activities that generate air pollution in the Coachella Valley.20

    20 Detailed information on the area-wide source category emissions is found on the CARB Web site: http://www.arb.ca.gov/ei/areasrc/areameth.htm.

    The emission inventories in the 2014 SIP Update use the California Emission Projection Analysis Model (CEPAM).21 The CEPAM model used in the 2014 SIP Update is based on a 2008 baseline inventory developed using the methods and databases described above (e.g., EMFAC2011; CEIDARS; and CARB modular off-road equipment updates such as the 2011 In-Use Off-Road Equipment model, Transportation Refrigeration Units model, and Cargo Handling Equipment model.). The inventory was calibrated to 2008 emissions and activity levels, and inventories for other years are back-cast (e.g., 2002) or forecast (e.g., 2018) using CEPAM from that base inventory.22

    21 Appendix A of the 2014 SIP Update contains the estimated VOC and NOX stationary, area-wide and off-road forecast summaries by Emission Inventory Code categories for the Coachella Valley from CEPAM. A CEPAM inventory tool was created to support the development of the 2012 PM2.5 SIPs due at that time. The tool was designed to support all of the modeling, planning, and reporting requirements due at that time and includes updates for all the pollutants (e.g., NOX and VOC). Modeling results, which are summarized in Appendix A, are available separately in electronic file format.

    22 2014 SIP Update, page A-1

    3. Proposed Action on the Emissions Inventories

    We have reviewed the emissions inventories in the Coachella Valley Ozone Plan and the inventory methodologies used by the District and CARB for consistency with CAA section 182(a)(1) and EPA guidance. We find that the base year and projected attainment year inventories are comprehensive, accurate, and current inventories of actual and projected emissions of NOX and VOC in the Coachella Valley as of the date of the submittal. Accordingly, we propose to find that these inventories provide an appropriate basis for the various other elements of the Coachella Valley Ozone Plan, including the RACM, ROP, RFP, and attainment demonstrations.

    B. Reasonably Available Control Measures Demonstration and Adopted Control Strategy 1. RACM Requirements

    CAA section 172(c)(1) requires that each attainment plan provide for the implementation of all reasonable available control measures as expeditiously as practicable and provide for attainment of the NAAQS. The RACM demonstration requirement is a continuing applicable requirement for the Coachella Valley under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(17).

    The EPA has previously provided guidance interpreting the RACM requirement in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (“General Preamble”) 23 and in a memorandum entitled “Guidance on Reasonably Available Control Measures (RACM) Requirements and Attainment Demonstration Submissions for the Ozone NAAQS,” John Seitz, November 30, 1999 (Seitz memo).24 In summary, EPA guidance provides that to address the requirement to adopt all RACM, states should consider all potentially reasonable control measures for source categories in the nonattainment area to determine whether they are reasonably available for implementation in that area and whether they would, if implemented individually or collectively, advance the area's attainment date by one year or more.25

    23See 57 FR 13498, 13560. The General Preamble describes the EPA's preliminary view on how we would interpret various SIP planning provisions in title I of the CAA as amended in 1990, including those planning provisions applicable to the 1-hour ozone standards. The EPA continues to rely on certain guidance in the General Preamble to implement the 8-hour ozone standards under title I.

    24 Available at www.epa.gov/ttn/oarpg/t1pgm.html.

    25See Seitz memo and General Preamble at 13560; see also “State Implementation Plans; General Preamble for Proposed Rulemaking on Approval of Plan Revisions for Nonattainment Areas,” 44 FR 20372 (April 4, 1979) and Memorandum dated December 14, 2000, from John S. Seitz, Director, Office of Air Quality Planning and Standards, “Additional Submission on RACM from States with Severe One-Hour Ozone Nonattainment Area SIPs.”

    Any measures that are necessary to meet these requirements that are not already either federally promulgated, part of the state's SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan for the area. CAA section 172(c)(6) requires nonattainment plans to include enforceable emission limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standards in such area by the applicable attainment date. See also CAA section 110(a)(2)(A).

    The purpose of the RACM analysis is to determine whether or not control measures exist that are economically and technically reasonable and that provide emissions reductions that would advance the attainment date for nonattainment areas. The EPA defines RACM as any potential control measure for application to point, area, on-road and non-road emission source categories that: (1) Is technologically feasible; (2) is economically feasible; (3) does not cause “substantial widespread and long-term adverse impacts”; (4) is not “absurd, unenforceable, or impracticable”; and (5) can advance the attainment date by at least one year. General Preamble at 13560.

    For ozone nonattainment areas classified as moderate or above, CAA section 182(b)(2) also requires implementation of RACT for all major sources of VOC and for each VOC source category for which the EPA has issued a Control Techniques Guidelines (CTG) document. CAA section 182(f) requires that RACT under section 182(b)(2) also apply to major stationary sources of NOX. In Severe areas, a major source is a stationary source that emits or has the potential to emit at least 25 tons of VOC or NOX per year. CAA section 182(d). Under the 8-hour ozone implementation rule, states were required to submit SIP revisions meeting the RACT requirements of CAA sections 182(b)(2) and 182(f) no later than 27 months after designation for the 8-hour ozone standards (September 15, 2006, for areas designated in April 2004) and to implement the required RACT measures no later than 30 months after that submittal deadline. See 40 CFR 51.912(a). The EPA has approved the RACT SIP for the SCAQMD for the 1997 ozone standards, which included rules applicable to the Coachella Valley. See 73 FR 76947 (December 18, 2008).

    2. Control Strategy and RACM Demonstration in the Coachella Valley Ozone Plan a. The District's RACM Demonstration

    Appendix VI of the 2007 AQMP includes a RACM demonstration covering both the South Coast Air Basin and the Coachella Valley, which focuses on control measures for stationary and area sources. The process to identify RACM involved public meetings to solicit input, evaluation of the EPA's suggested RACM, and evaluation of air emissions rules in other areas (including the San Joaquin Valley, the San Francisco Bay Area, Sacramento, Ventura, Dallas-Fort Worth, the Houston-Galveston area and the Lake Michigan Air Directors Consortium). The District also reevaluated all 82 of its existing rules and regulations. The RACM evaluation process included a summit where CARB technical experts, local government representatives and the public suggested alternative ways to attain air quality standards. More than 200 potential control measures were identified. The District then screened the identified measures and rejected those that would not individually or collectively advance attainment in the area by at least one year, had already been adopted as rules, or were in the process of being adopted. The remaining measures were evaluated by taking into account baseline inventories, available control technologies, and potential emission reductions as well as whether the measure could be implemented on a schedule that would advance attainment of the 1997 8-hour ozone standards by at least a year.26

    26 2007 AQMP, Appendix VI, page VI-1 and 2.

    Based on this analysis, SCAQMD scheduled 16 new or revised stationary source control measures for development and adoption, including revisions to make SCAQMD rules at least as stringent as other California districts' rules and several innovative measures. Since submission of the AQMP in 2007, the SCAQMD has adopted 12 of these rules and submitted them to the EPA for approval into the SIP. Table 4 lists the measures identified in the 2007 AQMP,27 with citations to the Federal Register notice that incorporates each measure into the SIP, where applicable. These rules are part of the District's enforceable commitment to achieve emissions reductions. However, the District acknowledged that its commitment to adopt any given rule might prove to be infeasible, meaning the control technology may not be available or achievement of the emissions reductions may not be cost effective. In adopting the 2007 AQMP, the SCAQMD Board committed to “substitute any other measures as necessary to make up any emissions reduction shortfall.” 28

    27 2007 AQMP, Tables 4-1, 4-2A and 4-2B.

    28 Attachment A of the 2007 AQMP, SCAQMD Board Resolution 07-9, dated June 1, 2007.

    Table 4—Status of RACM Rules Identified in SCAQMD 2007 AQMP Control
  • measure
  • Rule No. Title Ozone
  • precursor
  • controlled
  • Federal Register notice adopting
  • rule into the SIP
  • CTS-01 1144 Metalworking fluids and direct-contact lubricants VOC 76 FR 70888, 11/16/2011. CTS-04 1143 Consumer Paint Thinners and Multi-Purpose Solvents VOC 76 FR 70888, 11/16/2011. CMB-01 1147 NOX reductions from miscellaneous sources NOX 75 FR 46845, 08/04/2010. CMB-03 1111 Further NOX reductions from space heaters NOX 75 FR 46845, 08/04/2010. FUG-02 461 Gasoline transfer and dispensing (VOC) VOC 78 FR 21543, 04/11/2013. FUG-04 1149 Storage Tank and Pipeline Cleaning and Degassing VOC 74 FR 67821, 12/21/2009. MCS-01 1110.2 Liquid and gaseous fuels—stationary ICEs (NOX and VOC) NOX and VOC 74 FR 18995, April 27, 2009. MCS-01 1146 NOX from industrial, institutional, commercial boilers, steam generators, and process heaters NOX 79 FR 57442, 09/25/2014. MCS-01 1146.1 NOX from small ind, inst, & commercial boilers, steam gens, and process heaters NOX 79 FR 57442, 09/25/2014. MCS-05 1127 Livestock waste (VOC) VOC 78 FR 30768, 05/23/2013. Measures not yet adopted or not approved in the SIP by EPA EGM-01 2301
  • (proposed)
  • Emissions reductions from new or redevelopment projects (Indirect Sources) NOX and VOC No rule associated with this measure.a
    FLX-02 n/a Refinery pilot program (VOC) VOC No rule associated with this measure. MOB-05 Title 13 Cal. Code of Regulations § 2622 AB923 LDV high emitter program NOX and VOC n/a.b MOB-06 Title 13 Cal. Code of Regulations § 2622 AB923 MDV high emitter program NOX and VOC n/a.b n/a 2449 SOON program NOX (proposed approval) 81 FR 12637, 03/10/2016. a The District has not finalized Rule 2301. b SCAQMD implements this program through CARB's Enhanced Fleet Modernization Program. n/a = not applicable.

    The EPA determined that the 2007 AQMP met the RACM requirement for the 1997 8-hour ozone standards in the South Coast Air Basin. See 77 FR 12674 (March 1, 2012).29 CARB submitted a 2012 Air Quality Management Plan (2012 AQMP), developed by the SCAQMD, in February 2013 with additional information about the Coachella Valley, including data and discussion on air quality, pollutant transport, emissions inventories, attainment demonstration, and projections of future air quality.30 For the 2012 AQMP, the SCAQMD followed a process similar to that used for the 2007 AQMP, which included public meetings to solicit input, evaluation of EPA's suggested RACM, and evaluation of other air agencies' regulations. See Appendix VI of the 2012 AQMP. The District states in the 2012 AQMP that “the 2007 AQMP adequately addressed and satisfied the CAA planning requirements for ozone in the Coachella Valley, and this chapter [Chapter 7: Current & Future Air Quality—Desert Nonattainment Areas] is for information only.” The 2012 AQMP does, however, include a new RACM demonstration. See Appendix VI of the 2012 AQMP. It includes new and revised rules for the District since the adoption of the 2007 AQMP. The EPA approved the RACM demonstration in the 2012 AQMP as a revision to the SIP for both the 1-hour and 1997 8-hour ozone standards for the South Coast Air Basin. See 79 FR 52526 (September 3, 2014). Many of the new rules have been incorporated into the SIP,31 some have been proposed by the District but not incorporated into the SIP,32 and others have yet to be proposed locally.

    29 More recently, the EPA determined that the South Coast RECLAIM program did not meet RACM for PM2.5 because it allowed facilities to delay installation of selective catalytic reduction (SCR) to control NOX emissions. See 81 FR 22025 (April 14, 2016). Only two facilities in Coachella Valley are part of the RECLAIM program and both facilities have an oxidation catalyst and SCR on each gas turbine. The Title V Permits for these facilities are included in the administrative record for this action. Additionally, SCAQMD Rule 2005 requires all emissions sources at any new or relocated RECLAIM facility to apply the best available control technology.

    30 Final Air Quality Management Plan, February 2013, South Coast Air Quality Management District.

    31 For example, CMB-03: Reductions from Commercial Space Heating (Rule 1111) and FUG-02: Emission Reduction from LPG Transfer and Dispensing—Phase II (Rule 1177).

    32 For example, CMB-01: Further NOX Reductions from RECLAIM.

    c. Local Jurisdiction RACM Demonstration

    With respect to on-road mobile sources, we note that SCAG is the designated metropolitan planning organization (MPO) for a large portion of southern California, including Coachella Valley, and SCAG's membership includes local jurisdictions within the Coachella Valley. For the 2007 AQMP, SCAG evaluated a list of possible transportation control measures (TCMs) as one element of the larger RACM evaluation for the plan. TCMs are, in general, measures designed to reduce emissions from on-road motor vehicles through reductions in VMT or traffic congestion. SCAG's TCM development process is described in Appendix IV-C (“Regional Transportation Strategy and Control Measures”) of the 2007 AQMP, pages 49 to 55.

    In our final action on the 2007 AQMP for the South Coast Air Basin, we concluded that the evaluation processes undertaken by SCAG were consistent with the EPA's RACM guidance and found that there were no additional RACM, including no additional TCMs that would advance attainment of the 1997 8-hour ozone standards in the South Coast Air Basin. See 76 FR 57872, at 57883 (September 16, 2011) (proposed rule); 77 FR 12674 (March 1, 2012) (final rule). More recently, we came to the same conclusion with respect to RACM and TCMs for the South Coast in our action on the ozone portion of the 2012 AQMP. See 79 FR 29712, at 29720 (May 23, 2014) (proposed rule); 79 FR 52526 (September 3, 2014) (final rule).

    While TCMs are being implemented in the upwind South Coast Air Basin area to meet CAA requirements, neither the SCAQMD nor CARB rely on implementation of any TCMs in the Coachella Valley to demonstrate implementation of RACM in the Coachella Valley Ozone Plan. The SCAQMD and CARB justify the absence of TCMs in the Coachella Valley by reference to the significant influence of pollutant transport from the South Coast Air Basin on ozone conditions in the Coachella Valley. We agree that pollutant transport from the South Coast Air Basin is significant, and find that, given the influence of such transport and the minimal and diminishing emissions benefit generally associated with TCMs, no TCM or combination of TCMs implemented in the Coachella Valley would advance the attainment date in the Coachella Valley, and thus, no TCMs are reasonably available for implementation in the Coachella Valley for the purposes of meeting the RACM requirement. Lastly, we note that, while not required for CAA purposes, SCAG's most recent Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) (April 2016) includes a list of projects for the Coachella Valley, some of which represent the types of projects often identified as TCMs, such as traffic signalization projects and bike lane projects. See the transportation system project list for Riverside County, attached as an appendix to SCAG's 2016-2014 RTP/SCS (April 2016), available at http://scagrtpscs.net/Documents/2016/final/f2016RTPSCS_ProjectList.pdf.

    d. The State Strategy RACM Demonstration

    CARB has primary responsibility for reducing emissions in California from new and existing on-road and off-road engines and vehicles, motor vehicle fuels, and consumer products. Given the need for significant emissions reductions from mobile sources to meet the ozone standards in California nonattainment areas, CARB has been a leader in the development of stringent control measures for on-road and off-road mobile sources, fuels and consumer products. Because of this role, the 2007 AQMP identifies CARB's 2007 State Strategy as a key component of the control strategy necessary to attain the 1997 ozone standards. The 2007 State Strategy includes measures to reduce emissions from multiple sectors, including in-use heavy duty trucks, smog check improvements, reformulated gasoline, cleaner off-road equipment, cleaner consumer products, ships, harbor craft and port trucks. See 2007 State Strategy, Chapter 5.

    CARB developed its 2007 State Strategy after an extensive public consultation process to identify potential SIP measures. From this process, CARB identified and committed to propose 15 new defined measures. These measures focus on cleaning up the in-use fleet as well as increasing the stringency of emissions standards for a number of engine categories, fuels, and consumer products. Many, if not most, of these measures have been adopted or are being proposed for adoption for the first time anywhere in the nation. They build on CARB's already comprehensive program described above that addresses emissions from all types of mobile sources and consumer products, through both regulations and incentive programs.

    In adopting the 2007 State Strategy, CARB committed to reducing Coachella Valley NOX emissions by 7 tons per day (tpd) and VOC emissions by 2 tpd through the implementation of measures identified in the 2007 State Strategy.33 However, this proposed action does not rely on the NOX and VOC commitments in the 2007 State Strategy, because the 2014 SIP Update shows that the Coachella Valley would meet the NOX and VOC attainment and RFP goals, under existing rules received through September 2012.34

    33 Board Resolution 07-28, CARB, September 27, 2007, page 7, Attachment B.

    34 2014 SIP Update, page A-1.

    CARB adopted the 2009 State Strategy Status Report in April 2009. This submittal updated the 2007 State Strategy to reflect its implementation during 2007 and 2008, and also to reflect changes resulting from the adoption of the scoping plan mandated by Assembly Bill 32 that will help reduce ozone during SIP implementation.35 The update also changes assumptions about economic conditions and the availability of incentive funds.36 Finally, the 2007 State Strategy was revised to address approvability issues brought up by the EPA.37

    35 2009 State Strategy Status Report, page v.

    36 2009 State Strategy Status Report, page v.

    37 2009 State Strategy Status Report, page 2.

    CARB again revised the state strategy in the 2011 State Strategy Progress Report. While the changes primarily address attainment of the 1997 PM2.5 standards, the 2011 State Strategy Progress Report also includes an appendix that updates the control measure adoption schedule and revises the emissions estimates to reflect changes made by CARB to the on-road truck and off-road equipment rules in 2010.38

    38 2011 State Strategy Progress Report at Appendix F (“Revisions to 2007 P.M.2.5 and Ozone State Implementation Plan for South Coast Air Basin and Coachella Valley”) (March 2011).

    We have previously determined that CARB's mobile source control programs constituted RACM for the attainment plan for the 1997 Ozone NAAQS in the South Coast Air Basin. See 77 FR 12674 (March 1, 2012). Since then, CARB has adopted additional mobile source control measures including the Advanced Clean Cars program (also known as the Low Emission Vehicle Program III or LEV-III), heavy-duty vehicle idling rules, revisions to CARB's in-use rules for on-road and non-road diesel vehicles, and emissions standards for non-road equipment, cargo handling equipment, and recreational vehicles. See 81 FR 39424 (June 18, 2016).

    3. The EPA's Evaluation of the Control Strategy and RACM

    For the Coachella Valley in 2017 (the year prior to the attainment year), the emissions inventory shows that nearly all of the locally generated NOX emissions (93%) and nearly half of the VOC emissions (48%) derive from mobile sources.39 Mobile source emissions are well controlled throughout California because of stringent control measures in place for on-road and off-road mobile sources and fuels. See, e.g., 2007 State Strategy, p. 37. Additionally, as noted above, the EPA has already determined CARB's rules in the 2007 State Strategy, as revised in 2009 and 2011, meet RACM, and CARB continues to adopt new and more stringent mobile source rules. In view of the transport of pollutants into the Coachella Valley from the South Coast Air Basin (see discussion at section I.B above) and the extensive control of mobile sources by CARB, we propose to find that the Coachella Valley Ozone Plan provides for implementation of all RACM necessary to demonstrate expeditious attainment of the 1997 8-hour ozone standards in the Coachella Valley, consistent with the applicable requirements of CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17).

    39 Based on data from Tables A-1 and A-2 of the 2014 SIP Update.

    C. Attainment Demonstration 1. Requirements for Attainment Demonstrations

    CAA section 182(c)(2)(A) requires states with ozone nonattainment areas classified as “Serious” or above to submit plans that demonstrate attainment of the ozone NAAQS as expeditiously as practicable but no later than the specified attainment date. For any ozone nonattainment area classified as serious or above, section 182(c)(2)(A) of the CAA specifically requires the State to submit a modeled attainment demonstration based on a photochemical grid modeling evaluation or any other analytical method determined by the Administrator to be at least as effective as photochemical modeling. The attainment demonstration requirement is a continuing applicable requirement for the Coachella Valley under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(12).

    For more detail on the requirements for modeling an 8-hour ozone attainment demonstration, see the Technical Support Document (TSD) for today's proposal. The modeling section of the TSD includes a complete list of applicable modeling guidance documents. These documents describe the components of the attainment demonstration, explain how the modeling and other analyses should be conducted, and provide overall guidance on the technical analyses for attainment demonstrations.

    As with any predictive tool, inherent uncertainties are associated with photochemical grid modeling. The EPA's guidance recognizes these limitations and provides recommended approaches for considering other analytical evidence to help assess whether attainment of the NAAQS is likely. This process is called a weight of evidence (WOE) analysis.

    The EPA's modeling guidance (updated in 1996, 1999, and 2002) discusses various WOE analyses. This guidance was updated again in 2005 and 2007 for the 1997 8-hour attainment demonstration procedures to include a WOE analysis as an integral part of any attainment demonstration. This guidance strongly recommends that all attainment demonstrations include supplemental analyses beyond the recommended modeling. These supplemental analyses can provide additional information such as data analyses, and emissions and air quality trends, which can help strengthen the conclusion based on the photochemical grid modeling.

    2. 8-Hour Attainment Demonstration Modeling and Weight of Evidence Analysis in the South Coast 2007 AQMP a. Photochemical Grid Modeling Attainment Demonstration Results i. Photochemical Grid Model

    The model selected for the 2007 AQMP attainment demonstrations is the Comprehensive Air Quality Model with Extensions (CAMx), version 4.4 (Environ, 2006), using Statewide Air Pollution Research Center-99 (SAPRC-99) gas phase mechanisms (Carter, 2000).40 The modeling system (including the photochemical model, meteorological inputs, and chemical mechanism) is consistent with the previous advice of outside peer reviewers. CAMx is a state-of-the-art air quality model that can simulate ozone and PM2.5 concentrations together in a “one-atmosphere” approach for attainment demonstrations. CAMx is designed to integrate the output from both prognostic and diagnostic meteorological models.

    40 Carter, W.P.L., May 8, 2000a. Documentation of the SAPRC-99 chemical mechanism for VOC reactivity assessment. Report to the California Air Resources Board, Contracts 92-329 and 95-308.

    ii. Episode Selection

    Six meteorological episodes from three years are used as the basis for the plan. An earlier modeling effort, contained in SCAQMD's 2003 Air Quality Management Plan, benefited from the intensive monitoring conducted under the 1997 Southern California Ozone Study (SCOS 1997) where the August 4-7, 1997, episode was the cornerstone of the modeling analysis. One of the primary modeling episodes used in the earlier modeling from August 5-6, 1997, was also selected for this plan. In addition, five episodes that occurred during the Multiple Air Toxics Exposure Study III (MATES-III) sampling program in 2004 (August 7-8) and 2005 (May 21-22, July 15-19, August 4-6, and August 27-28) were selected.41 The TSD for today's proposal provides further information.

    41 Final Report, Multiple Air Toxics Exposure Study in the South Coast Air Basin (MATES-III), SCAQMD, September 2008.

    iii. Model Performance

    The modeling for the Coachella Valley attainment demonstration uses the same approach used for the South Coast Air Basin attainment demonstration, which was based on an air quality modeling domain that covers the entire South Coast Air Basin, the Coachella Valley, and much of southern California. Model performance was evaluated in three zones in the South Coast Basin: The San Fernando Valley; the eastern San Gabriel, Riverside and San Bernardino Valleys; and Los Angeles and Orange County. Normalized Gross Bias, Normalized Gross Error, and Peak Prediction Accuracy were determined for each area. Although not a requirement for determining acceptable model performance, the performance statistics were compared to the EPA performance goals presented in guidance documents. The performance goals for Normalized Gross Error and Peak Prediction Accuracy were met in the eastern San Gabriel, Riverside and San Bernardino Valleys. In general, the statistic for bias (Normalized Gross Bias) tends to be negative, indicating that the model tends to slightly under-predict ozone. Based on the analysis, the SCAQMD concludes that model performance is acceptable for this application.

    b. Modeling Approaches for the Coachella Valley Attainment Demonstration

    CAMx simulations were conducted for the base year 2002, and future-year 2017 baseline and controlled emissions.42 The ozone attainment demonstration relies on the use of site-specific relative response factors (RRFs) being applied to the 2002 weighted design values. The RRFs are determined from the future year controlled and the 2002 base year simulations. The initial screening for station days to be included in the attainment demonstration included the following criteria: (1) Having an observed concentration equaling or exceeding 85 parts per billion (ppb), and (2) a simulation predicted base year (1997, 2004 or 2005) concentration over 60 ppb. Additional criteria were added to the selection process as the simulations were evaluated. A minimum of five episode days are recommended to determine the site specific RRF. The TSD for today's action has more information regarding the rationale for our proposed approval of the Coachella Valley Ozone Plan modeling.

    42 Future year controlled emissions were estimated from the baseline emissions using the CEPA control factors for the simulations, are given in Table V-4-4 of the 2007 South Coast AQMP, Appendix V.

    c. Results of Modeling

    The attainment demonstration included in the 2007 AQMP indicates that the Coachella Valley will attain the federal 1997 8-hour ozone standards by the proposed attainment date of June 15, 2019. The 2007 AQMP projects the Coachella Valley air monitoring stations of Palm Springs and Indio to have 8-hour ozone design values of 75.9 ppb and 66.2 ppb respectively in the year 2017.43 More recent modeling in the 2012 AQMP, as well as recent monitoring data, shows attainment by the 2018 attainment year. See the TSD for this action for more information.

    43 2007 AQMP, Appendix V, page V-4-52, Table V-4-17.

    d. Transport From the South Coast Air Basin

    The South Coast Air Basin's continued progress toward meeting the 1997 ozone NAAQS is critical to the Coachella Valley's ability to attain the 1997 ozone standards. The Coachella Valley is downwind of the South Coast Air Basin, which is regulated by the SCAQMD. The 2007 AQMP states, “pollutant transport from the South Coast Air Basin to the Coachella Valley is the primary cause of its ozone nonattainment status.” The plan cites several studies that confirm the transport between the two air basins.44

    44 See footnote 6.

    3. The EPA's Evaluation and Proposed Conclusions on the Modeling Demonstration

    We are proposing to approve an attainment date of June 15, 2019, which reflects a 2018 attainment year. This is based on our evaluation of the air quality modeling analyses in the 2007 AQMP and our WOE analysis. The WOE analysis considered the attainment demonstration from the 2012 AQMP and more recent ambient air quality monitoring data that were not available at the time SCAQMD performed the attainment modeling. The basis for our proposed approval is discussed in more detail in the TSD. The modeling shows significant reductions in ozone from the base period. The most recent ambient air quality data that we have reviewed indicate that the area is on track to attain the 1997 8-hour ozone standards by 2018.

    Based on the analysis above and in the TSD, the EPA proposes to find that the air quality modeling in the 2007 AQMP provides an adequate basis for the RACM, RFP and attainment demonstrations in the Coachella Valley Ozone Plan, and is consistent with the applicable requirements of CAA section 182(c)(2)(a) and 40 CFR 51.1105(a)(1) and 51.1100(o)(12).

    D. Rate of Progress and Reasonable Further Progress Demonstrations 1. Rate of Progress a. Requirements

    For areas classified as moderate or above, Section 182(b)(1) requires a SIP revision providing for rate of progress (ROP), defined as a one time, 15% actual VOC emission reduction during the six years following the baseline year 1990, or an average of 3% per year. For areas designated serious nonattainment or above, no further action is necessary if the area fulfilled its ROP requirement for the 1-hour standards (from 1990-1996). As the EPA explained in the 1997 Ozone Implementation Rule, 69 FR 23980 (October 27, 2004), for areas that did not meet the 15% ROP reduction for the 1-hour ozone standards, a state may notify the EPA that it wishes to rely on a previously submitted SIP (for the 1-hour ozone standards), or it may elect to submit a new or revised SIP (for the 1997 ozone standards) addressing the 15% ROP reduction. The ROP demonstration requirement is a continuing applicable requirement for the Coachella Valley under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

    The CAA outlines and EPA guidance details the method for calculating the requirements for the 1990-1996 period. Section 182(b)(1) requires that reductions: (1) Be in addition to those needed to offset any growth in emissions between the base year and the milestone year; (2) exclude emission reductions from four prescribed federal programs (i.e., the federal motor vehicle control program, the federal Reid vapor pressure (RVP) requirements, any RACT corrections previously specified by the EPA, and any inspection and maintenance (I/M) program corrections necessary to meet the basic I/M level); and (3) be calculated from an “adjusted” baseline relative to the year for which the reduction is applicable.

    The adjusted base year inventory excludes the emission reductions from fleet turnover between 1990 and 1996 and from federal RVP regulations promulgated by November 15, 1990, or required under section 211(h) of the Act. The net effect of these adjustments is that states are not able to take credit for emissions reductions that would result from fleet turnover of current federal standard cars and trucks, or from already existing federal fuel regulations. However, the SIP can take full credit for the benefits of any new (i.e., post-1990) vehicle emissions standards, as well as any other new federal or state motor vehicle or fuel program that will be implemented in the nonattainment area, including Tier 1 exhaust standards, new evaporative emissions standards, reformulated gasoline, enhanced I/M, California low emissions vehicle program, transportation control measures, etc.

    While a SIP revision for attainment of the 1-hour ozone standards was submitted for the Southeast Desert area (i.e., the Coachella Valley and Western Mojave Desert areas), we have not approved the ROP plan for the reduction of VOCs. We provided notice that the Southeast Desert has attained the 1-hour standards on April 15, 2015. See 80 FR 20166 (April 15, 2015). Per 40 CFR 51.1118, the RFP requirement (including the 15% ROP requirement for VOCs) no longer applies to the 1-hour ozone standards for the Southeast Desert area. Although the ROP provision is a one-time requirement, it remains in effect for the 1997 8-hour ozone standards. Therefore, the Coachella Valley SIP must demonstrate a 15% ROP for VOC reductions by 2008, from the 2002 baseline.

    b. ROP Demonstration in the State Submittal

    The 2014 SIP Update incorporates the ROP demonstration as an element of the RFP demonstration. We note that this approach is valid, but different from the organization of this notice, where we first, and separately, assess the ROP demonstration and then assess the RFP demonstration. See section IV.D.2 for the RFP assessment. VOC emissions from the RFP tables for the Coachella Valley (see Table C-1 in the 2014 SIP Update), were used to create Table 5 below. The revised 15% ROP VOC demonstration uses a 2002 average summer weekday emissions inventory as the base year inventory and addresses 2002-2008. Based on the progress of the VOC emissions reductions from 2002 to 2008, the State concluded the Coachella Valley met the ROP requirement for the 15% VOC reduction.

    Table 5—15% Rate-of-Progress Demonstration for VOC Emissions in the Coachella Valley a VOC Emissions Coachella
  • (tpsd)
  • 1. 2002 baseline inventory 22.7 2. 2008 remaining emissions 17.6 3. 2008 goal (remaining emissions after 15% ROP Reduction required from 2002 baseline) 19.3 4. ROP reduction achieved by 2008 (Compare Line 2 to Line 7) Yes a Source: 2014 SIP Update, Table C-1.
    2. Reasonable Further Progress a. Requirements

    CAA sections 172(c)(2) and 182(b)(1) require plans for nonattainment areas to provide for RFP. RFP is defined in section 171(1) as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable [NAAQS] by the applicable date.” CAA section 182(c)(2)(B) requires ozone nonattainment areas classified as serious or higher to submit no later than 3 years after designation for the 8-hour ozone standards an RFP SIP providing for an average of 3% per year of VOC and/or NOX emissions reductions for (1) the 6-year period immediately following the baseline year; and (2) all remaining 3-year periods after the first 6-year period out to the area's attainment date. The RFP requirement is a continuing applicable requirement for the Coachella Valley under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

    CAA section 182(c)(2)(C) allows for the substitution of NOX emission reductions in place of VOC reductions to meet the RFP requirements. According to the EPA's NOX Substitution Guidance,45 the substitution of NOX reductions for VOC reductions must be done on a percentage basis, rather than a straight ton-for-ton exchange. There are two steps for substituting NOX for VOC. First, an equivalency demonstration must show that the cumulative RFP emission reductions are consistent with the NOX and VOC emission reductions determined in the ozone attainment modeling demonstration. Second, specified reductions in NOX and VOC emissions should be accomplished in the interim period between the 2002 base year and the attainment date, consistent with the continuous RFP emission reduction requirement.

    45 EPA Office of Air Quality Planning and Standards, “NOX Substitution Guidance,” December 1993.

    b. RFP Demonstration in the State Submittal

    The 2014 SIP Update contains emissions estimates for the baseline, milestone and attainment years, and additional discussion of the RFP demonstration. See page 5 and Table C-1 in Appendix C. Table 6 below shows data from the RFP demonstration, with additional rows based on information provided by CARB. The 2014 SIP Update uses NOX substitution beginning in milestone year 2014 to meet VOC emission targets. For the Coachella Valley, the State concluded that RFP demonstration meets the applicable requirements for each milestone year as well as the attainment year.

    Table 6—Calculation of RFP Demonstrations for Coachella Valley a VOC Emission calculations (tpd) 2002 2008 2011 2014 2017 2018 1. 2002 Baseline VOC 22.7 n/a n/a n/a n/a n/a 2. Non-creditable CA MVCP/RVP adjustments n/a 1.1 1.5 1.8 1.9 2.0 3. RACT Corrections 0 0 0 0 0 0 4. Adjusted 2002 baseline VOC inventory (2002 Baseline VOC−Line 2−Line 3) n/a 21.6 21.2 20.9 20.8 20.7 5. RFP Commitment for VOC reductions from new measures n/a 0 0 0 0 0 6. Future Year VOC with existing and proposed measures n/a 17.6 15.0 15.8 15.8 15.9 7. Required VOC % change since previous milestone year, relative to 2002 n/a 15% 9% 9% 9% 3% 8. Required VOC reduction from 2002 adjusted baseline n/a 15% 24% 33% 42% 45% 9. Target VOC Levels b n/a 18.4 16.4 14.7 13.3 12.8 10. Apparent VOC Shortfall (Line 6−Line 9) n/a −0.8 −1.3 1.2 2.6 3.2 11. Apparent % VOC shortfall (Line 10 ÷ Line 4 n/a −3.7% −6.4% 5.6% 12.7% 15.3% 12. VOC shortfall previously provided by NOX substitution % (Line 13 of prior milestone year, or 0 if negative) n/a 0 0 0 5.6% 12.7% 13. Actual VOC shortfall (Line 11−Line 12) n/a −3.7% −6.4% 5.6% 7.1% 2.5% NOX Emission calculations (tpd) 2002 2008 2011 2014 2017 2018 15. Baseline NOX inventory 43.3 31.0 23.8 c 22.0 c 18.9 c 17.8 16. Non-creditable CA MVCP/RVP adjustments n/a 1.6 2.0 2.2 2.3 2.3 17. Adjusted 2002 baseline NOX inventory (Line 15 2002 baseline−Line 16) n/a 41.7 41.3 41.1 41.0 40.9 18. RFP commitment for NOX reductions from new measures n/a 0 0 0 0 0 19. Calculated NOX creditable reductions since 2002 (Line 17−Line 18) n/a 41.7 41.3 41.1 41.0 40.9 20. Change in NOX since 2002 (Line 19−Line 15) n/a 10.6 17.5 19.1 22.1 23.1 21. Calculated % NOX reductions since 2002 (Line 20 ÷ Line 19) n/a 25.6% 42.3% 46.5% 53.9% 56.5% 22. NOX previously used for VOC shortfall by NOX substitution % (from Line 12) n/a 0 0 0 5.6% 12.7% 23. NOX substitution needed for VOC shortfall % (Same as Line 13, or 0 if Line 9 < 0) n/a 0.0% 0.0% 5.6% 7.1% 2.5% 24. Forecasted % NOX reduction surplus (Line 21−Line 22−Line 23) n/a 25.6% 42.3% 40.9% 41.2% 41.3% 25. RFP achieved? n/a Yes Yes Yes Yes Yes a Source: 2014 SIP Update, Table C-1. b Target VOC levels for 2008 = (1−Line 8) × (Line 4). In subsequent years, Target VOC = [(prior year Line 9 + prior year Line 2−current year line 2) × (1−current year line 7)]. c Estimated emissions include an additional 1 tpd safety margin for transportation conformity budget. Note: Because of rounding conventions, values in table may not reflect the exact calculated quantity from the underlying numbers. 3. Proposed Action on the ROP and RFP Demonstrations

    Based on our review of the ROP calculations in the 2014 SIP Update, summarized in Table 5 above, we conclude that the state has demonstrated that sufficient emission reductions have been achieved to meet the ROP requirements in 2008. And as shown in Table 6, the South Coast 2007 8-hour Ozone SIP provides for RFP in each milestone year, consistent with applicable CAA requirements and EPA guidance. We therefore propose to approve the ROP and RFP demonstrations under sections 182(b)(1) and 182(c)(2) of the CAA and 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

    E. Motor Vehicle Emissions Budgets for Transportation Conformity 1. Requirements for Motor Vehicle Emissions Budgets

    CAA section 176(c) requires federal actions in nonattainment and maintenance areas to conform to the goals of SIPs. This means that such actions will not: (1) Cause or contribute to violations of a NAAQS, (2) worsen the severity of an existing violation, or (3) delay timely attainment of any NAAQS or any interim milestone.

    Actions that involve Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the EPA's transportation conformity rule, which is codified in 40 CFR part 93, subpart A. Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state and local air quality and transportation agencies, the EPA, FHWA, and FTA to demonstrate that an area's RTP and transportation improvement programs (TIP) conform to the applicable SIP. This demonstration is typically done by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (MVEBs or budgets) contained in the SIP. An attainment, RFP, or maintenance SIP establishes MVEBs for the attainment year, each required RFP year or last year of the maintenance plan, as appropriate. MVEBs are generally established for specific years and specific pollutants or precursors. Ozone attainment and RFP plans establish MVEBs for NOX and VOC. See 40 CFR 93.102(b)(2)(i).

    Before an MPO may use MVEBs in a submitted SIP, the EPA must first either determine that the MVEBs are adequate or approve the MVEBs. In order for us to find the MVEBs adequate and approvable, the submittal must meet the conformity adequacy requirements of 40 CFR 93.118(e)(4) and (5) and be approvable under all pertinent SIP requirements. To meet these requirements, the MVEBs must be consistent with the approvable attainment and RFP demonstrations and reflect all of the motor vehicle control measures contained in the attainment and RFP demonstrations. See 40 CFR 93.118(e)(4)(iii), (iv) and (v). For more information on the transportation conformity requirements and applicable policies on MVEBs, please visit our transportation conformity Web site at: https://www.epa.gov/state-and-local-transportation.

    The EPA's process for determining adequacy of a MVEB consists of four basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period and responding to any comments that are submitted; (3) reviewing the submitted SIP to determine if it meets the adequacy criteria; and, (4) making a finding of adequacy or inadequacy. See 40 CFR 93.118.

    2. MVEBs in the Coachella Valley Ozone Plan

    The 2007 AQMP did not propose budgets for transportation conformity for the Coachella Valley. CARB submitted the 2008 Early Progress Plan, an amendment to the SIP, to establish MVEBs for many areas of California including the Coachella Valley.46 Using EMFAC2007 (the 2007 version of the EMissions FACtor model), CARB set the 2012 MVEBs at 7 tpd for VOCs and 26 tpd for NOX. We found the MVEB in the 2008 Early Progress Plan for the Coachella Valley to be adequate for transportation conformity purposes.47 See 73 FR 25694 (April 16, 2008).

    46 Early Progress Plans Demonstrating Progress Toward Attaining the 8-hour National Air Quality Standards for Ozone and Setting Transportation Conformity Budgets for Ventura County, Antelope Valley—Western Mojave Desert, Coachella Valley, Eastern Kern County, Imperial County, Revised: February 27, 2008, Release Date: February 27, 2008.

    47 Letter dated April 16, 2008 from Deborah Jordan to James Goldstene, California Air Resources Board, RE: Adequacy Status of Coachella Valley 8-hour Ozone Early Progress Plan Motor Vehicle Emissions Budgets.

    The 2014 SIP Update includes updated MVEBs.48 As noted in Section IV.B.2 of this notice, the MVEBs were estimated using EMFAC2011, and the latest planning assumptions from SCAG, including Amendment No. 1 to the 2012-2035 Regional Transportation Plan and Amendment No. 13-4 to the Federal Transportation Improvement Program. 49 The emissions estimate also includes off-model adjustments to EMFAC2011 to account for the Advanced Clean Car regulations adopted by CARB and included in the SIP. See 81 FR 39424 (June 16, 2016).

    48 2014 SIP Update, Table D-1.

    49See http://rtpscs.scag.ca.gov/Pages/Amendment-1.aspx.

    The MVEBs are the projected on-road mobile source VOC and NOX emissions in the Coachella Valley for baseline, milestone and attainment years. These budgets, shown in Table 7, include a 1 tpd safety margin, as allowed by the conformity rule. See 40 CFR 93.124(a).

    Table 7—Coachella Valley Motor Vehicle Emissions Budgets in the 2014 SIP Update [tpd, average summer weekday] a NOX 2014 2017 2018 VOC 2014 2017 2018 On-Road Inventory 14.79 11.39 10.74 3.72 3.07 2.93 Safety Margin 1 1 1 1 1 1 MVEBs b 16 13 12 5 5 4 a Source: 2014 SIP Update, Appendix D, Table D-1. b Rounded up to the nearest ton. 3. Proposed Action on the Budgets

    As part of our review of the budgets' approvability, we have evaluated the revised budgets using our adequacy criteria in 40 CFR 93.318(e)(4) and (5). We found that the 2017 and 2018 budgets meet each adequacy criterion. We have completed our review of the 2014 SIP Update and are proposing to approve the SIP's attainment and RFP demonstrations. We have also reviewed the proposed budgets submitted with the 2014 SIP Update and have found that the 2017 and 2018 budgets are consistent with the attainment and RFP demonstrations, were based on control measures that have already been adopted and implemented, and meet all other applicable statutory and regulatory requirements including the adequacy criteria in 40 CFR 93.118(e)(4) and (5). Therefore, we are proposing to approve the 2017 and 2018 budgets as shown in Table 7.50 Once these budgets are found adequate or are approved, the budgets for the 2008 early progress plan for 2012 will no longer be used in transportation conformity determinations. If finalized as proposed, the U.S. Department of Transportation and SCAG (the metropolitan planning organization for the area) would be required to use the new budgets in transportation conformity determinations.

    50 Although the 2014 SIP Update contained MVEBs for 2014, 2017, and 2018, MVEBs for 2014 are no longer relevant for conformity analyses since that year has passed.

    F. Vehicle Miles Travelled Emissions Offset Demonstration 1. Requirements for a VMT Emissions Offset Demonstration

    CAA section 182(d)(1)(A) requires a state with areas classified as “Severe” or “Extreme” to “submit a revision that identifies and adopts specific enforceable transportation control strategies (TCSs) and TCMs to offset any growth in emissions from growth in VMT or numbers of vehicle trips in such area.” Herein, we refer to the SIP requirement as the “VMT emissions offset requirement,” and the SIP revision intended to demonstrate compliance with the VMT emissions offset requirement as the “VMT emissions offset demonstration.” The VMT emissions offset requirement is a continuing applicable requirement for the Coachella Valley under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(10).

    CAA section 182(d)(1)(A) also includes two additional elements requiring that the SIP include: (1) TCSs and TCMs as necessary to provide (along with other measures) the reductions needed to meet the applicable RFP requirement, and (2) include strategies and measures to the extent needed to demonstrate attainment. As noted above, the first element of CAA section 182(d)(1)(A) requires that areas classified as “Severe” or “Extreme” submit a SIP revision that identifies and adopts TCSs and TCMs sufficient to offset any growth in emissions from growth in VMT or the number of vehicle trips.

    In response to the Court's decision in Association of Irritated Residents v. EPA, 51 we issued a memorandum titled Guidance on Implementing Clean Air Act Section 182(d)(1)(A): Transportation Control Measures and Transportation Control Strategies to Offset Growth in Emissions Due to Growth in Vehicle Miles Travelled (August 2012 Guidance).52 The August 2012 Guidance discusses the meaning of the terms TCSs and TCMs, and recommends that both TCSs and TCMs be included in the calculations made for the purpose of determining the degree to which any hypothetical growth in emissions due to growth in VMT should be offset. Generally, TCS is a broad term that encompasses many types of controls including, for example, motor vehicle emission limitations, I/M programs, alternative fuel programs, other technology-based measures, and TCMs, that would fit within the regulatory definition of “control strategy.” See, e.g., 40 CFR 51.100(n). TCM is defined at 40 CFR 51.100(r) to mean “any measure that is directed toward reducing emissions of air pollutants from transportation sources,” including, but not limited to, measures listed in CAA section 108(f), and generally refers to programs intended to reduce the VMT, the number of vehicle trips, or traffic congestion, such as programs for improved public transit, designation of certain lanes for passenger buses and high-occupancy vehicles, trip reduction ordinances, and similar measures.

    51 632 F.3d. 584, at 596-597 (9th Cir. 2011), reprinted as amended on January 27, 2012, 686 F.3d 668, further amended February 13, 2012 (ruling additional TCMs are required whenever vehicle emissions are projected to be higher than they would have been had VMT not increased, even when aggregate vehicle emissions are actually decreasing).

    52 Memorandum dated August 30 2012 from Karl Simon, Director, Transportation and Climate Division, Office of Transportation and Air Quality, to Carl Edlund, Director, Multimedia Planning and Permitting Division, EPA Region 6, and Deborah Jordan, Director, Air Division, EPA Region 9.

    The August 2012 guidance also explains how states may demonstrate that the VMT emissions offset requirement is satisfied in conformance with the Court's ruling. It recommends states estimate emissions for the nonattainment area's base year and the attainment year. One emission inventory is developed for the base year, and three different emissions inventory scenarios are developed for the attainment year. Two of these scenarios would represent hypothetical emissions scenarios that would provide the basis to identify the “growth in emissions” due solely to the growth in VMT, and one that would represent projected actual motor vehicle emissions after fully accounting for projected VMT growth and offsetting emissions reductions obtained by all creditable TCSs and TCMs. The August 2012 guidance contains specific details on how states might conduct the calculations.

    The base year on-road VOC emissions inventory should be based on VMT in that year and it should reflect all enforceable TCSs and TCMs in place in the base year. This would include vehicle emissions standards, state and local control programs such as I/M programs or fuel rules, and any additional implemented TCSs and TCMs that were already required by or credited in the SIP as of the base year.

    The first of the emissions calculations for the attainment year would be based on the projected VMT and trips for that year, and assume that no new TCSs or TCMs beyond those already credited in the base year inventory have been put in place since the base year. This calculation demonstrates how emissions would hypothetically change if no new TCSs or TCMs were implemented, and VMT and trips were allowed to grow at the projected rate from the base year. This estimate would show the potential for an increase in emissions due solely to growth in VMT and trips, representing a no-action scenario. Emissions in the attainment year in this scenario may be lower than those in the base year due to fleet turnover to lower-emitting vehicles. Emissions may also be higher if VMT and/or vehicle trips are projected to sufficiently increase in the attainment year.

    The second of the attainment year emissions calculations would also assume that no new TCSs or TCMs beyond those already credited have been put in place since the base year, but would also assume no growth in VMT and trips between the base year and attainment year. Like the no-action attainment year estimate described above, emissions in the attainment year may be lower than those in the base year due to fleet turnover, but the emissions would not be influenced by any growth in VMT or trips. This emissions estimate, the VMT offset ceiling scenario, would reflect the maximum attainment emissions that should be allowed to occur under the statute as interpreted by the Court because it shows what would happen under a scenario in which no offsetting TCSs or TCMs have yet been put in place and VMT and trips are held constant during the period from the area's base year to its attainment year.

    These two hypothetical status quo estimates are necessary steps in identifying target emission levels. These levels determine whether further TCMs or TCSs beyond those that have been adopted and implemented are needed to fully offset any increase in emissions due solely to VMT and vehicle trips identified in the no action scenario.

    The third calculation incorporates the emissions that are actually expected to occur in the area's attainment year after taking into account reductions from all enforceable TCSs and TCMs that in reality were put in place after the baseline year. This estimate would be based on the VMT and trip levels expected to occur in the attainment year (i.e., the VMT and trip levels from the first estimate) and all of the TCSs and TCMs expected to be in place and for which the SIP will take credit in the area's attainment year, including any TCMs and TCSs put in place since the base year. This represents the projected actual (attainment year) scenario. If this emissions estimate is less than or equal to the emissions ceiling that was established in the second of the attainment year calculations, the TCSs or TCMs for the attainment year would be sufficient to fully offset the identified hypothetical growth in emissions.

    If the projected actual attainment year emissions are greater than the VMT offset ceiling established in the second of the attainment year emissions calculations even after accounting for post-baseline year TCSs and TCMs, the state would need to adopt and implement additional TCSs or TCMs. To meet the VMT offset requirement of section 182(d)(1)(A) as interpreted by the Court, the additional TCSs or TCMs would need to offset the growth in emissions and bring the actual emissions down to at least the same level as the attainment year VMT offset ceiling estimate.

    2. The Coachella Valley VMT Emissions Offset Demonstration

    The Coachella Valley VMT Offset demonstration is contained in Appendix E of the 2014 SIP Update. The State used EMFAC2011,53 an EPA-approved motor vehicle emissions model for California, to estimate on-road emissions. The model calculates emissions from two combustion processes (i.e., running exhaust and start exhaust) and four evaporative processes (i.e., hot soak, running losses, diurnal losses, and resting losses). It combines trip-based VMT data from the regional transportation planning agencies (i.e., SCAG), starts data based on household travel surveys, and vehicle population data from the California Department of Motor Vehicles. These sets of data are combined with corresponding emission rates to calculate emissions.

    53 More recently, the EPA approved EMFAC2014 as the model for estimating on-road emissions; however, that approval allowed the continued use of EMFAC2011 until December 14, 2017. See 80 FR 77337.

    Emissions from running exhaust, start exhaust, hot soak, and running losses are a function of how much a vehicle is driven. As such, emissions from these processes are directly related to VMT and vehicle trips, and the State included emissions from them in the calculations that provide the basis for the revised Coachella Valley VMT emissions offset demonstration. The 2014 SIP Update (see page E-3) did not include emissions from resting loss and diurnal loss processes in the analysis because such emissions are related to vehicle population, rather than VMT or vehicle trips, and thus are not part of “any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area” (emphasis added) under CAA section 182(d)(1)(A).

    The VMT emissions offset demonstration also includes the previously described three different attainment year scenarios (i.e., no action, VMT offset ceiling, and projected actual) for 2018. The State's selection of 2018 is appropriate given that the 2014 SIP Update demonstrates attainment by the applicable attainment date of June 15, 2019 based on the 2018 controlled emissions inventory. Table 8 summarizes the emissions estimate for the base year and the three scenarios discussed in Section IV.G.1.b.

    Table 8—VMT Emissions Offset Inventory Scenarios and Results for 1997 8-Hour Ozone Standards  a Scenario VMT Year 1000 miles/day Starts Year 1000/day Controls Year VOC
  • Emissions
  • tpd
    Base Year 2002 10,293 2002 1,248 2002 8 No Action 2018 14,329 2018 10,640 2002 4 VMT Offset Ceiling 2002 14,329 2002 7,935 2002 3 Projected Actual 2018 64,709 2018 10,640 2018 2 a Source: 2014 SIP Update, Appendix E.

    For the base year scenario, CARB ran the EMFAC2011 model for the 2002 base year using VMT and starts data corresponding to those years. As shown in Table 8, the 2014 SIP Update estimates Coachella Valley VOC emissions to be 8 tpd in 2002.

    For the no-action scenario, the State first identified the on-road motor vehicle control programs (i.e., TCSs or TCMs) put in place since the base year and incorporated into EMFAC2011. Then, CARB ran EMFAC2011 with the VMT and starts data corresponding to the applicable attainment year (i.e., 2018 for the 1997 8-hour ozone standards) without the emissions reductions from the on-road motor vehicle control programs put in place after the base year. Thus, the no action scenario reflects the hypothetical VOC emissions that would occur in the attainment year in the nonattainment area if CARB had not put in place any additional TCSs or TCMs after 2002. As shown in Table 8, CARB estimates no action VOC emissions for Coachella Valley to be 4 tpd in 2018.

    For the VMT offset ceiling scenario, the State ran the EMFAC2011 model for the attainment year but with VMT and starts data corresponding to base year values. Like the no- action scenario, the EMFAC2011 model was adjusted to reflect VOC emissions levels in the attainment year without the benefits of the on-road motor vehicle control programs implemented after the base year. Thus, the VMT offset ceiling scenario reflects hypothetical VOC emissions if the State had not put in place any TCSs or TCMs after the base year and if there had been no growth in VMT or vehicle trips between the base year and the attainment year. As shown in Table 8, CARB estimates VMT offset ceiling VOC emissions to be 3 tpd in 2018.

    The hypothetical growth in emissions due to growth in VMT and trips can be determined from the difference between the VOC emissions estimates under the no action scenario and the corresponding estimate for the VMT offset ceiling scenario. Based on the values in Table 9, the hypothetical growth in emissions due to growth in VMT and trips in the Coachella Valley would have been 1 tpd (i.e., 4 tpd minus 3 tpd) for the purposes of the revised VMT emissions offset demonstration for the 8-hour ozone standards. This hypothetical difference establishes the level of emissions caused by growth in VMT that need to be offset by the combination of post-baseline year TCMs and TCSs and any necessary additional TCMs and TCSs.

    For the projected actual scenario calculation, the State included the emissions benefits from TCSs and TCMs 54 put in place since the base year. The most significant State on-road and fuels measures providing reductions during the 2002 to 2018 timeframe and relied upon for the VMT emissions offset demonstration include Low Emission Vehicles II and Zero Emissions Vehicle standards, California Reformulated Gasoline Phase 3, and Cleaner In-Use Heavy-Duty Trucks. Some of these measures were adopted prior to 2002, but all or part of the implementation occurred after 2002.55 State measures adopted since 2007, as part of the 2009 State Strategy Status Report, and the associated reductions are also described in the IV.B.2.d of this notice. The 2014 SIP Update provides a list of CARB rules for mobile sources, since 1990 through the plan's development, in Table E-4.

    54 The 2014 SIP Update states, “there are no TCMs in the SIP for the Coachella Valley and Western Mojave Desert because upwind emissions from the South Coast Air Basin and Ventura County largely influence air quality in both the Coachella Valley and Western Mojave Desert. TCMs have been implemented by the SCAG in those upwind areas.” (Appendix E, p. E-3)

    55 Appendix E of the SIP Update contains a full list of the TCSs adopted by the state since 1990.

    3. The EPA's Evaluation of the VMT Emissions Offset Demonstration

    The Coachella Valley VMT emissions offset demonstrations established 2002 as the base year for the purpose of the VMT emissions offset demonstration for the 1997 8-hour ozone standards. The base year for VMT emissions offset demonstration purposes should generally be the same base year used for nonattainment planning purposes. In today's action, the EPA is proposing to approve the 2002 base year inventory for Coachella Valley for the purposes of the 1997 8-hour ozone standards. Thus, CARB's selection of 2002 as the base year for the VMT emissions offset demonstration for the 1997 8-hour ozone standards is appropriate.

    As shown in Table 8, the results from these calculations establish projected actual attainment-year VOC emissions of 2 tpd in the Coachella Valley for the 1997 8-hour standards demonstration. By comparing these values against the corresponding VMT offset ceiling value, we can determine whether additional TCMs or TCSs would need to be adopted and implemented to offset any increase in emissions due solely to VMT and trips. Because the projected actual emissions are less than the corresponding VMT offset ceiling emissions, the State's demonstration shows compliance with the VMT emissions offset requirement. This means that the adopted TCSs and TCMs are sufficient to offset the growth in emissions from the growth in VMT and vehicle trips in Coachella Valley for the 1997 8-hour ozone standards. Taking into account the creditable post-baseline year TCMs and TCSs, the demonstration shows Coachella Valley offset hypothetical growth in emissions due to growth in VMT by 2 tpd of VOC, which is more than the required 1 tpd offset.56

    56 The offsetting VOC emissions reductions from the TCSs and TCMs put in place after the base year can be determined by subtracting the “projected actual” emissions estimates from the “no action” emissions estimates in table 8. For the purposes of the 8-hour ozone demonstration, the offsetting emissions reductions, 2 tpd (4 tpd minus 2 tpd), exceed the growth in emissions from growth in VMT and vehicle trips (1 tpd).

    Based on our review of the 2014 SIP Update, we find the State's analysis to be acceptable and agree that the State has adopted sufficient TCSs and TCMs to offset the growth in emissions from growth in VMT and vehicle trips in the Coachella Valley for the purposes of the 1997 8-hour ozone standards. Thus we find that the VMT emissions offset demonstration for this area complies with the VMT emissions offset requirement in CAA section 182(d)(1)(A), consistent with 40 CFR 40 CFR 51.1105(a)(1) and 51.1100(o)(10). Therefore, we propose approval of the revised VMT emissions offset demonstration for the 1997 8-hour ozone standards, contained in the 2014 SIP Update, as a revision to the California SIP.

    V. The EPA's Proposed Actions A. The EPA's Proposed Approvals

    For the reasons discussed above, the EPA is proposing to approve the Coachella Valley Ozone Plan for the 1997 8-hour ozone NAAQS. The Plan includes the relevant portions of the following documents: (1) “Final 2007 Air Quality Management Plan,” South Coast Air Quality Management District, June 2007; (2) CARB's “2007 State Strategy for the California State Implementation Plan,” Release Date April 26, 2007 and Appendices A-G, Release Date May 7, 2007; (3) CARB's “Status Report on the State Strategy for California's 2007 State Implementation Plan (SIP) and Proposed Revision to the SIP Reflecting Implementation of the 2007 State Strategy,” Release Date: March 24, 2009; (4) CARB's “Progress Report on Implementation of PM2.5 State Implementation Plans (SIP) for the South Coast and San Joaquin Valley Air Basins and Proposed SIP Revisions,” Release Date March 29, 2011; and (5) CARB's “Staff Report, Proposed Updates to the 1997 8-Hour Ozone Standard, State Implementation Plans; Coachella Valley and Western Mojave Desert,” Release Date: September 22, 2014.

    The EPA is proposing to approve the following elements of the Coachella Valley Ozone Plan under CAA section 110(k)(3):

    1. The RACM demonstration as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17);

    2. The ROP and RFP demonstrations as meeting the requirements of CAA sections 172(c)(2) and 182(c)(2)(B) and 40 CFR 51.1105(a)(1) and 51.1100(o)(4);

    3. The attainment demonstration as meeting the requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(12);

    4. The demonstration that the SIP provides for transportation control strategies and measures sufficient to offset any growth in emissions from growth in VMT or the number of vehicle trips, and to provide for RFP and attainment, as meeting the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(10).

    We are also approving the revised MVEBs for RFP for 2017 and for the attainment year of 2018, because they are derived from approvable RFP and attainment demonstrations and meet the requirements of CAA sections 176(c) and 40 CFR part 93, subpart A.

    B. Request for Public Comments

    The EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. We will accept comments from the public on this proposal for the next 30 days. We will consider these comments before taking final action.

    VI. Statutory and Executive Order Reviews

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

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

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

    B. Paperwork Reduction Act (PRA)

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

    C. Regulatory Flexibility Act (RFA)

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

    D. Unfunded Mandates Reform Act (UMRA)

    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.

    E. Executive Order 13132: Federalism

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

    F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to 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.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    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.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    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.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental regulations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: October 19, 2016. Alexis Strauss, Acting Regional Administrator, EPA Region IX.
    [FR Doc. 2016-26376 Filed 10-31-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R02-OAR-2016-0161; FRL-9954-59-Region 2] Approval and Promulgation of State Plans for Designated Facilities and Pollutants; New York, New Jersey and Commonwealth of Puerto Rico; Other Solid Wsate Incineration Units (OSWIs) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve the Clean Air Act (CAA) section 111(d)/129 negative declaration for the States of New York and New Jersey and the Commonwealth of Puerto Rico,for other solid waste incineration units(OSWIs) units. Other solid waste incineration (OSWI) unit means either a very small municipal waste combustion unit or an institutional waste incineration unit within our regulations. This negative declaration certifies that existing OSWI units subject to sections 111(d) and 129 of the CAA do not exist within the jurisdiction of the Sates of New York and New Jersey or the Commonwealth of Puerto Rico. The EPA is accepting the negative declaration in accordance with the requirements of the CAA.

    DATES:

    Comments must be received on or before December 1, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-OAR-2016—to http://www.regulations.gov. Follow the online instructions for submitting comments.

    Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway New York, New York 1007-1866 at 212-637-3764 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this Federal Register, the EPA is approving the State of New York's negative declaration submitted November 13, 2006, the State of New Jersey's negative declaration submitted April 5, 2006 and the Commonwealth of Puerto Rico's negative declaration submitted September 25, 2006 as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no adverse comments to this action.

    A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If the EPA receives adverse comments,the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time.

    For additional information, see the direct final rule which is located in the rules section of this Federal Register.

    List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements, Sewage sludge incinerators.

    Dated: October 3, 2016. Judith A. Enck, Regional Administrator, Region 2.
    [FR Doc. 2016-26172 Filed 10-31-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 241 [EPA-HQ-OLEM-2016-0248; FRL-9953-38-OLEM] RIN 2050-AG83 Additions to List of Section 241.4 Categorical Non-Waste Fuels: Other Treated Railroad Ties AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA or the Agency) is proposing to issue amendments to the Non-Hazardous Secondary Materials rule, initially promulgated on March 21, 2011, and amended on February 7, 2013 and February 8, 2016, under the Resource Conservation and Recovery Act. The Non-Hazardous Secondary Materials rule generally established standards and procedures for identifying whether non-hazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units. In the February 7, 2013 amendments, the EPA listed particular non-hazardous secondary materials as “categorical non-waste fuels” provided certain conditions are met. Persons burning these non-hazardous secondary materials do not need to evaluate them under the general self-implementing case-by-case standards and procedures that would otherwise apply to non-hazardous secondary materials used in combustion units. The February 8, 2016 amendments added three materials including creosote treated railroad ties to the list of categorical non-waste fuels. This action proposes to add other treated railroad ties to the list, which are processed creosote-borate, copper naphthenate and copper naphthenate-borate treated railroad ties, under certain conditions depending on the chemical treatment.

    DATES:

    Comments must be received on or before January 3, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2016-0248, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    George Faison, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (703) 305-7652; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The following outline is provided to aid in locating information in this preamble.

    I. General Information A. List of Abbreviations and Acronyms Used in This Proposed Rule B. What is the statutory authority for this proposed rule? C. Does this proposed rule apply to me? D. What is the purpose of this proposed rule? II. Background A. History of the NHSM Rulemakings B. Background to This Proposed Rule C. How will EPA make categorical non-waste determinations? III. Proposed Categorical Non-Waste Listing Determination for OTRTs A. Detailed Description of OTRTs B. OTRTs under Current NHSM Rules C. Scope of the Proposed Categorical Non-Waste Listing for OTRTs D. Rationale for Proposed Listing E. Summary and Request for Comment F. Copper and Borates Literature Review and Other EPA Program Review Summary IV. Effect of This Proposal on Other Programs V. State Authority A. Relationship to State Programs B. State Adoption of the Rulemaking VI. Cost and Benefits VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. List of Abbreviations and Acronyms Used in This Proposed Rule Btu British thermal unit C&D Construction and demolition CAA Clean Air Act CBI Confidential business information CFR Code of Federal Regulations CISWI Commercial and Industrial Solid Waste Incinerator CTRT Cresosote-treated railroad ties EPA U.S. Environmental Protection Agency FR Federal Register HAP Hazardous air pollutant MACT Maximum achievable control technology NAICS North American Industrial Classification System ND Non-detect NESHAP National emission standards for hazardous air pollutants NHSM Non-hazardous secondary material OMB Office of Management and Budget PAH Polycyclic aromatic hydrocarbons ppm Parts per million RCRA Resource Conservation and Recovery Act RIN Regulatory information number RL Reporting Limits SBA Small Business Administration SO2 Sulfur dioxide SVOC Semi-volatile organic compound TCLP Toxicity characteristic leaching procedure UPL Upper prediction limit U.S.C. United States Code VOC Volatile organic compound B. What is the statutory authority for this proposed rule?

    The EPA is proposing that additional non-hazardous secondary materials (NHSMs) be categorically listed as non-waste fuels in 40 CFR 241.4(a) under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the Clean Air Act (CAA) directs the EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste. Section 129(g)(6) of the CAA provides that the term “solid waste” is to be established by the EPA under RCRA (42 U.S.C. 7429(g)(6)). Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is stated in RCRA section 1004(27).

    C. Does this proposed rule apply to me?

    Categories and entities potentially affected by this action, either directly or indirectly, include, but may not be limited to the following:

    Generators and Potential Users a of the New Materials Proposed To Be Added to the List of Categorical Non-Waste Fuels Primary industry category or sub category NAICS b Utilities 221 Construction of Buildings 236 Site Preparation Contractors 238910 Manufacturing 31, 32, 33 Wood Product Manufacturing 321 Sawmills 321113 Wood Preservation (includes crosstie creosote treating) 321114 Pulp, Paper, and Paper Products 322 Cement manufacturing 32731 Railroads (includes line haul and short line) 482 Scenic and Sightseeing Transportation, Land (Includes: railroad, scenic and sightseeing) 487110 Port and Harbor Operations (Used railroad ties) 488310 Landscaping Services 561730 Solid Waste Collection 562111 Solid Waste Landfill 562212 Solid Waste Combustors and Incinerators 562213 Marinas 713930 a Includes: Major Source Boilers, Area Source Boilers, and Solid Waste Incinerators. b NAICS—North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially impacted by this action. This table lists examples of the types of entities of which EPA is aware that could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in this rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

    D. What is the purpose of this proposed rule?

    The RCRA statute defines “solid waste” as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material . . . resulting from industrial, commercial, mining, and agricultural operations, and from community activities.” (RCRA section 1004(27) (emphasis added)). The key concept is that of “discard” and, in fact, this definition turns on the meaning of the phrase, “other discarded material,” since this term encompasses all other examples provided in the definition.

    The meaning of “solid waste,” as defined under RCRA, is of particular importance as it relates to section 129 of the CAA. If material is a solid waste under RCRA, a combustion unit burning it is required to meet the CAA section 129 emission standards for solid waste incineration units. If the material is not a solid waste, combustion units are required to meet the CAA section 112 emission standards for commercial, industrial, and institutional boilers. Under CAA section 129, the term “solid waste incineration unit” is defined, in pertinent part, to mean “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments.” 42 U.S.C. 7429(g)(1). CAA section 129 further states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to the Solid Waste Disposal Act.” Id at 7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly referred to as the Resource Conservation and Recovery Act or RCRA.

    Regulations concerning NHSMs used as fuels or ingredients in combustion units are codified in 40 CFR part 241.1 This action proposes to amend the Part 241 regulations by adding three NHSMs to the list of categorical non-waste fuels codified in § 241.4(a). These new proposed categorical listings are for:

    1See 40 CFR 241.2 for the definition of non-hazardous secondary material.

    • Creosote-borate railroad ties (and mixtures of creosote, copper naphthenate and copper naphthenate-borate railroad ties) that are processed and then combusted in units designed to burn both biomass and fuel oil. Such combustion must be part of normal operations and not solely as part of start-up or shut-down operations. Also included are units at major source pulp and paper mills or power producers 2 subject to 40 CFR part 63, subpart DDDDD that combust these types of treated railroad ties and had been designed to burn biomass and fuel oil, but are modified (e.g., oil delivery mechanisms were removed) in order to use natural gas instead of fuel oil. Again, such combustion must be part of normal operations and not solely as part of start-up or shut-down operations. These treated railroad ties may continue to be combusted as product fuel in units that have been modified to use natural gas only if the following conditions are met, which are intended to ensure that these materials are not being discarded:

    2 40 CFR 241.2 defines power producer as a boiler unit producing electricity for sale to the grid. The term does not include units meeting the definition of electricity generating unit under 40 CFR 63.10042 of the Utility Mercury and Air Toxics Standards rule.

    ○ Must be burned in existing (i.e., commenced construction prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate boilers; and

    ○ Can comprise no more than 40 percent of the fuel that is used on an annual heat input basis.

    • Copper naphthenate railroad ties combusted in units designed to burn biomass, or biomass and fuel oil.

    • Copper naphthenate-borate railroad ties combusted in units designed to burn biomass, or biomass and fuel oil.

    II. Background A. History of the NHSM Rulemakings

    The Agency first solicited comments on how the RCRA definition of solid waste should apply to NHSMs when used as fuels or ingredients in combustion units in an advanced notice of proposed rulemaking (ANPRM), which was published in the Federal Register on January 2, 2009 (74 FR 41). We then published an NHSM proposed rule on June 4, 2010 (75 FR 31844), which the EPA made final on March 21, 2011 (76 FR 15456).

    In the March 21, 2011 rule, the EPA finalized standards and procedures to be used to identify whether NHSMs are solid wastes when used as fuels or ingredients in combustion units. “Secondary material” was defined for the purposes of that rulemaking as any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap (codified in 40 CFR 241.2). “Non-hazardous secondary material” is a secondary material that, when discarded, would not be identified as a hazardous waste under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels, including historically managed traditional fuels (e.g., coal, oil, natural gas) and “alternative” traditional fuels (e.g., clean cellulosic biomass) are not secondary materials and thus, are not solid wastes under the rule unless discarded (codified in 40 CFR 241.2).

    A key concept under the March 21, 2011 rule is that NHSMs used as non-waste fuels in combustion units must meet the legitimacy criteria specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria helps ensure that the fuel product is being legitimately and beneficially used and not simply being discarded through combustion (i.e., via sham recycling). To meet the legitimacy criteria, the NHSM must be managed as a valuable commodity, have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and contain contaminants or groups of contaminants at concentrations comparable to (or lower than) those in traditional fuels which the combustion unit is designed to burn.

    Based on these criteria, the March 21, 2011 rule identified the following NHSMs as not being solid wastes:

    • The NHSM is used as a fuel and remains under the control of the generator (whether at the site of generation or another site the generator has control over) that meets the legitimacy criteria (40 CFR 241.3(b)(1));

    • The NHSM is used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));

    • Discarded NHSM has been sufficiently processed to produce a fuel or ingredient that meets the legitimacy criteria (40 CFR 241.3(b)(4)); or

    • Through a case-by-case petition process, it has been determined that the NHSM handled outside the control of the generator has not been discarded and is indistinguishable in all relevant aspects from a fuel product, and meets the legitimacy criteria (40 CFR 241.3(c)).

    In October 2011, the Agency announced it would be initiating a new rulemaking proceeding to revise certain aspects of the NHSM rule.3 On February 7, 2013, the EPA published a final rule, which addressed specific targeted amendments and clarifications to the 40 CFR part 241 regulations (78 FR 9112). These revisions and clarifications were limited to certain issues on which the Agency had received new information, as well as targeted revisions that the Agency believed were appropriate in order to allow implementation of the rule as the EPA originally intended. The amendments modified 40 CFR 241.2 and 241.3, added 40 CFR 241.4, and included the following: 4

    3See October 14, 2011, Letter from Administrator Lisa P. Jackson to Senator Olympia Snowe. A copy of this letter is in the docket for the February 7, 2013 final rule (EPA-HQ-RCRA-2008-1873).

    4See 78 FR 9112 (February 7, 2013) for a discussion of the rule and the Agency's basis for its decisions.

    Revised Definitions: The EPA revised three definitions discussed in the proposed rule: (1) “clean cellulosic biomass,” (2) “contaminants,” and (3) “established tire collection programs.” In addition, based on comments received on the proposed rule, the Agency revised the definition of “resinated wood.”

    Contaminant Legitimacy Criterion for NHSMs Used as Fuels: The EPA issued revised contaminant legitimacy criterion for NHSMs used as fuels to provide additional details on how contaminant-specific comparisons between NHSMs and traditional fuels may be made.

    Categorical Non-Waste Determinations for Specific NHSMs Used as Fuels. The EPA codified determinations that certain NHSMs are non-wastes when used as fuels. If a material is categorically listed as a non-waste fuel, persons that generate or burn these NHSMs will not need to make individual determinations, as required under the existing rules, that these NHSMs meet the legitimacy criteria. Except where otherwise noted, combustors of these materials will not be required to provide further information demonstrating their non-waste status. Based on all available information, the EPA determined the following NHSMs are not solid wastes when burned as a fuel in combustion units and has categorically listed them in 40 CFR 241.4(a).5

    5 In the March 21, 2011 NHSM rule (76 FR 15456), EPA identified two NHSMs as not being solid wastes, although persons would still need to make individual determinations that these NHSMs meet the legitimacy criteria: (1) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs and (2) resinated wood used in a combustion unit. However, in the February 2013 NHSM rule, the Agency amended the regulations and listed these NHSMs as categorical non-waste fuels.

    —Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires; —Resinated wood; —Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal that would have been refuse if mined in the past; —Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials.

    Rulemaking Petition Process for Other Categorical Non-Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that provides persons an opportunity to submit a rulemaking petition to the Administrator, seeking a determination for additional NHSMs to be categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can demonstrate that the NHSM meets the legitimacy criteria or, after balancing the legitimacy criteria with other relevant factors, EPA determines that the NHSM is not a solid waste when used as a fuel.

    The February 8, 2016 amendments (81 FR 6688) added the following to the list of categorical non-waste fuels:

    • Construction and demolition (C&D) wood processed from C&D debris according to best management practices. Under this listing, combustors of C&D wood must obtain a written certification from C&D processing facilities that the C&D wood has been processed by trained operators in accordance with best management practices. Best management practices must include sorting by trained operators that excludes or removes the following materials from the final product fuel: Non-wood materials (e.g., polyvinyl chloride and other plastics, drywall, concrete, aggregates, dirt, and asbestos), and wood treated with creosote, pentachlorophenol, chromated copper arsenate, or other copper, chromium, or arsenical preservatives. Additional required best management practices address removal of lead-painted wood.

    • Paper recycling residuals generated from the recycling of recovered paper, paperboard and corrugated containers and combusted by paper recycling mills whose boilers are designed to burn solid fuel.

    • Creosote-treated railroad ties (CTRT) that are processed (which includes metal removal and shredding or grinding at a minimum) and then combusted in the following types of units:

    ○ Units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations, and

    ○ Units at major source pulp and paper mills or power producers subject to 40 CFR part 63, subpart DDDDD, that combust CTRTs and had been designed to burn biomass and fuel oil, but are modified (e.g., oil delivery mechanisms are removed) in order to use natural gas instead of fuel oil, as part of normal operations and not solely as part of start-up or shut-down operations. The CTRTs may continue to be combusted as product fuel only if the following conditions are met, which are intended to ensure that the CTRTs are not being discarded: CTRTs must be burned in existing (i.e., commenced construction prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate boilers; and, CTRTs can comprise no more than 40 percent of the fuel that is used on an annual heat input basis.

    Based on these non-waste categorical determinations, as discussed previously, facilities burning NHSMs that meet the categorical listing description will not need to make individual determinations that the NHSM meets the legitimacy criteria or provide further information demonstrating their non-waste status on a site-by-site basis, provided they meet the conditions of the categorical listing.

    B. Background to This Proposed Rule

    The Agency received a petition from the Treated Wood Council (TWC) in April 2013 requesting that nonhazardous treated wood (including borate and copper naphthenate) be categorically listed as non-waste fuels in 40 CFR 241.4(a). Under the April 2013 petition, nonhazardous treated wood would include: Waterborne borate based preservatives; waterborne organic based preservatives; waterborne copper based wood preservatives (ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline copper betaine, or copper naphthenate); creosote; oilborne copper naphthenate; pentachlorophenol; or dual-treated with any of the above.

    In the course of EPA's review of the April 2013 petition, additional data was requested and received, and meetings were held between TWC and EPA representatives. Overall, the EPA review determined that there were limited data points available and the analytical techniques for some contaminants were not appropriate to provide information on the entire preserved wood sample as it would be combusted. EPA also questioned the representativeness of the samples being analyzed and the repeatability of the analyses.

    In the subsequent August 21, 2015 letter from TWC to Barnes Johnson,6 TWC requested that the Agency move forward on a subset of materials that were identified in the original April 2013 petition which are creosote borate, copper naphthenate, and copper naphthenate-borate treated railroad ties. In the letter, TWC indicated that these types of ties are increasingly being used as alternatives to CTRT, due, in part, to lower overall contaminant levels and that the ability to reuse the ties is an important consideration in rail tie purchasing decisions. Information from industry also claimed that these treatments have proven to increase decay resistance for ties in severe decay environments and for species that are difficult to treat with creosote alone.7 The letter stated that TWC will discuss the remaining treated wood materials with EPA as a separate matter.

    6 Included in the docket for the February 2016 final rule. Follow-up meetings were also held with TWC on September 14, 2015 and December 17, 2015 summaries of which are also included in that docket.

    7 Railway Tie Association “Frequently Asked Questions” available on http://www.rta.org/faqs. Assessed on August 26, 2016.

    The Agency reviewed TWC's information on the three treated railroad ties, creosote borate, copper naphthenate, and copper naphthenate-borate, submitted on September 11, 2015 and requested additional contaminant data, which was submitted on October 5, 2015 and October 19, 2015.8 Based on that information, we stated in the February 2016 final rule that we believe these three treated railroad ties are candidates for categorical non-waste listings and expected to begin development of a proposed rule under 40 CFR 241.4(a) regarding those listings in the near future. The result is this proposal.

    8 These data submissions and the letter from TWC on August 21, 2015 are included in the docket for this proposed rule.

    C. How will EPA make categorical non-waste determinations?

    The February 7, 2013 revisions to the NHSM rule discuss the process and decision criteria whereby the Agency would make additional categorical non-waste determinations (78 FR 9158). While the categorical non-waste determinations in this action are not based on rulemaking petitions, the criteria the EPA used to assess these NHSMs as categorical non-wastes match the criteria to be used by the Administrator to determine whether to grant or deny the categorical non-waste petitions.9 10 These determinations follow the criteria set out in 40 CFR 241.4(b)(5) to assess additional categorical non-waste petitions and follow the statutory standards as interpreted by the EPA in the NHSM rule for deciding whether secondary materials are wastes. Those criteria include: (1) Whether each NHSM has not been discarded in the first instance (i.e., was not initially abandoned or thrown away) and is legitimately used as a fuel in a combustion unit or, if discarded, has been sufficiently processed into a material that is legitimately used as a fuel; and, (2) if the NHSM does not meet the legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM is integrally tied to the industrial production process, the NHSM is functionally the same as the comparable traditional fuel, or other relevant factors as appropriate.

    9 For a full discussion regarding the petition process for receiving a categorical non-waste determination, see 78 FR 9112, February 7, 2013 (page 9158-9159).

    10 Supplementary information received from by M.A. Energy Resources (February 2013) in support of the crosstie derived fuel was submitted as a categorical petition in accordance 40 CFR 241.4(b).

    Based on the information in the rulemaking record, the Agency is proposing to amend 40 CFR 241.4(a) by listing in addition to CTRT, three other types of treated railroad ties as categorical non-wastes. Specific determinations regarding these other treated railroad ties (OTRT), i.e., creosote-borate, copper naphthenate, copper naphthenate-borate and mixtures of creosote, borate and copper naphthenate treated railroad ties, as categorical non-wastes, and how the information was assessed by EPA according to the criteria in 40 CFR 241.4(b)(5), are discussed in detail in section III of this preamble.

    The rulemaking record for this rule (i.e., EPA-HQ-RCRA-2016-0248) includes those documents and information submitted specifically to support the categorical listings discussed in this rule. However, the principles on which the categorical listings are determined are based on the NHSM rules promulgated over the past few years, as discussed previously. While EPA is not formally including in the record for this rule materials supporting the earlier NHSM rulemaking proceedings, the Agency is nevertheless issuing this rule consistent with the NHSM rule and its supporting documents. This rulemaking proceeding in no way reopens any issues resolved in previous NHSM rulemaking proceedings. It simply responds to a petition in accordance with the standards outlined in the existing NHSM rule.

    III. Proposed Categorical Non-Waste Listing Determination for OTRTs

    The following sections describe the OTRTs that EPA is proposing to list in section 241.4(a) as categorical non-wastes when burned as a fuel in combustion units.

    A. Detailed Description of OTRTs 1. Processing

    Industry representatives stated that the removal of OTRTs from service and processing of those ties into a product fuel is analogous to that of CTRTs described in the February 2016 rule.11 OTRTs are typically comprised of North American hardwoods that have been treated with a wood preservative. Most of the energy recovery with OTRTs is conducted through three parties: The generator of the crossties (railroad or utility); the reclamation company that sorts the crossties, and in some cases processes the material received from the generator; and the combustor as third party energy producers. Typically, ownership of the OTRTs are generally transferred directly from the generator to the reclamation company that sorts materials for highest value secondary uses, and then sells the products to end-users, including those combusting the material as fuel. Some reclamation companies sell OTRTs to processors who remove metal contaminants and grind the ties into chipped wood. Other reclamation companies have their own grinders, do their own contaminant removal, and can sell directly to the combusting facilities. Information submitted to the Agency indicates there are approximately 15 OTRT recovery companies in North America with industry wide revenues of $65-75 million.

    11 81 FR 6688.

    After crossties are removed from service, they are transferred for sorting/processing, but in some cases, they may be temporarily stored in the railroad rights-of-way or at another location selected by the reclamation company. One information source 12 indicated that when the crossties are temporarily stored, they are stored until their value as an alternative fuel can be realized, generally through a contract completed for transferal of ownership to the reclamation contractor or combustor. This means that not all OTRTs originate from crossties removed from service in the same year; some OTRTs are processed from crossties removed from service in prior years and stored by railroads or removal/reclamation companies until their value as a landscaping element or fuel could be realized.

    12 M.A. Energy Resources LLC, Petition submitted to Administrator, EPA, February 2013.

    Typically, reclamation companies receive OTRTs by rail. The processing of the crossties into fuel by the reclamation/processing companies involves several steps. Contaminant metals (spikes, nails, plates, etc.) undergo initial separation and removal by the user organization (railroad company) during inspection. At the reclamation company, metal is further removed by magnets and may occur in multiple stages. After removal of contaminant metals, the crossties are then ground or shredded to a specified size depending on the particular needs of the end-use combustor, with chip size typically between 1-2 inches. Such grinding and shredding facilitates handling, storage and metering to the combustion chamber. By achieving a uniform particle size, combustion efficiency will be improved due to the uniform and controlled fuel feed rate and the ability to regulate the air supply. Additionally, the reduction process exposes a greater surface area of the particle to the heated gases, thus releasing any moisture more rapidly, and thereby enhancing its heating value.13 This step may occur in several phases, including primary and secondary grinding, or in a single phase.

    13 Forest and Agriculture Organization of the United Nations. The Potential Use of Wood Residues for Energy Generation, 2016.

    Once the crossties are ground to a specific size, there is further screening based on the particular needs of the end-use combustor. Depending on the configuration of the facility and equipment, screening may occur concurrently with grinding or at a subsequent stage. Once the processing of OTRTs is complete, the OTRTs are sold directly to the end-use combustor for energy recovery. Processed OTRTs are delivered to the buyers by railcar or truck. The OTRTs are then stockpiled prior to combustion, with a typical storage timeframe ranging from a day to a week. When the OTRTs are to be burned for energy recovery, the material is then transferred from the storage location using a conveyor belt or front-end loader. The OTRTs may be combined with other biomass fuels, including hog fuel and bark. OTRTs are commonly used to provide the high Btu fuel to supplement low (and sometimes wet) Btu biomass to ensure proper combustion, often in lieu of coal or other fossil fuels.14 The combined fuel may be further hammered and screened prior to combustion.

    14 American Forest & Paper Association, American Wood Council—Letter to EPA Administrator, December 6, 2012.

    In general, contracts for the purchase and combustion of OTRTs include fuel specifications limiting contaminants, such as metals, and prohibiting the receipt of wood treated with other preservatives such as pentachlorophenol.

    2. Treatment Descriptions i. Copper Naphthenate

    Copper naphthenate's effectiveness as a preservative has been known since the early 1900s, and various formulations have been used commercially since the 1940s. It is an organometallic compound formed as a reaction product of copper salts and naphthenic acids derived from petroleum. Unlike other commercially applied wood preservatives, small quantities of copper naphthenate can be purchased at retail hardware stores and lumberyards. Cuts or holes in treated wood can be treated in the field with copper naphthenate. Wood treated with copper naphthenate has a distinctive bright green color that weathers to light brown. The treated wood also has an odor that dissipates somewhat over time. Oil borne copper naphthenate is used for treatment of railroad ties since that treatment results in the ties being more resistant to cracks and checking. Waterborne copper naphthenate is used only for interior millwork and exterior residential dimensional lumber applications such as decking, fencing, lattice, recreational equipment, and other structures. Thus, this proposal does not address waterborne copper naphthenate.

    Copper naphthenate can be dissolved in a variety of solvents. The heavy oil solvent (specified in American Wood Protection Association (AWPA) Standard P9, Type A) or the lighter solvent (AWPA Standard P9, Type C) are the most commonly used. Copper naphthenate is listed in AWPA standards for treatment of major softwood species that are used for a variety of wood products. It is not listed for treatment of any hardwood species, except when the wood is used for railroad ties. The minimum copper naphthenate retentions (as elemental copper) range from 0.04 pounds per cubic foot (0.6 kilograms per cubic meter) for wood used aboveground, to 0.06 pounds per cubic foot (1 kilograms per cubic meter) for wood that will contact the ground and 0.075 pounds per cubic foot (1.2 kilograms per cubic meter) for wood used in critical structural applications.

    When dissolved in No. 2 fuel oil, copper naphthenate can penetrate wood that is difficult to treat. Copper naphthenate loses some of its ability to penetrate wood when it is dissolved in heavier oils. Copper naphthenate treatments do not significantly increase the corrosion of metal fasteners relative to untreated wood.

    Copper naphthenate is commonly used to treat utility poles, although fewer facilities treat utility poles with copper naphthenate than with creosote or pentachlorophenol. Unlike creosote and pentachlorophenol, copper naphthenate is not listed as a Restricted Use Pesticide (RUP) by the EPA. Even though human health concerns do not require copper naphthenate to be listed as an RUP, precautions such as the use of dust masks and gloves are used when working with wood treated with copper naphthenate.

    ii. Borates

    Borates is the name for a large number of compounds containing the element boron. Borate compounds are the most commonly used unfixed waterborne preservatives. Unfixed preservatives can leach from treated wood. They are used for pressure treatment of framing lumber used in areas with high termite hazard and as surface treatments for a wide range of wood products, such as cabin logs and the interiors of wood structures. They are also applied as internal treatments using rods or pastes. At higher rates of retention, borates also are used as fire-retardant treatments for wood.

    Performance characteristics include activity against fungi and insects, with low mammalian toxicity. Another advantage of boron is its ability to diffuse with water into wood that normally resists traditional pressure treatment. Wood treated with borates has no added color, no odor, and can be finished (primed and painted).

    Inorganic boron is listed as a wood preservative in the AWPA standards, which include formulations prepared from sodium octaborate, sodium tetraborate, sodium pentaborate, and boric acid. Inorganic boron is also standardized as a pressure treatment for a variety of species of softwood lumber used out of contact with the ground and continuously protected from water. The minimum borate (B2O3) retention is 0.17 pounds per cubic foot (2.7 kilograms per cubic meter). A retention of 0.28 pounds per cubic foot (4.5 kilograms per cubic meter) is specified for areas with Formosan subterranean termites.

    Borate preservatives are available in several forms, but the most common is disodium octaborate tetrahydrate (DOT). DOT has higher water solubility than many other forms of borate, allowing more concentrated solutions to be used and increasing the mobility of the borate through the wood. With the use of heated solutions, extended pressure periods, and diffusion periods after treatment, DOT can penetrate species that are relatively difficult to treat, such as spruce. Several pressure treatment facilities in the United States use borate solutions. For refractory species destined for high decay areas, it has now become relatively common practice to use borates as a pre-treatment to protect the wood prior to processing with creosote.

    iii. Creosote

    Creosote was introduced as a wood preservative in the late 1800's to prolong the life of railroad ties. CTRTs remain the material of choice by railroads due to their long life, durability, cost effectiveness, and sustainability. As creosote is a by-product of coal tar distillation, and coal tar is a by-product of making coke from coal, creosote is considered a derivative of coal. The creosote component of CTRTs is also governed by the standards established by AWPA. AWPA has established two blends of creosote, P1/13 and P2. Railroad ties are typically manufactured using the P2 blend that is more viscous than other blends.

    B. OTRTs Under Current NHSM Rules 1. March 2011 NHSM Final Rule

    The March 2011 NHSM final rule stated that most creosote-treated wood is non-hazardous. However, the presence of hexachlorobenzene, a CAA section 112 HAP, as well as other HAP suggested that creosote-treated wood, including CTRTs, contained contaminants at levels that are not comparable to or lower than those found in wood or coal, the fuel that creosote-treated wood would replace. In making the assessment, the Agency did not consider fuel oil 15 as a traditional fuel that CTRTs would replace, and concluded at the time that combustion of creosote-treated wood may result in destruction of contaminants contained in those materials. Such destruction is an indication of incineration, a waste activity. Accordingly, creosote-treated wood, including CTRTs when burned, seemed more like a waste than a commodity, and did not meet the contaminant legitimacy criterion. This material, therefore, was considered a solid waste when burned, and units' combusting it would be subject to the CAA section 129 emission standards (40 CFR part 60, subparts CCCC and DDDD).

    15 For the purposes of this proposed rule, fuel oil means oils 1-6, including distillate, residual, kerosene, diesel, and other petroleum based oils. It does not include gasoline or unrefined crude oil.

    Regarding borate treated wood, after reviewing data from one commenter which shows that the levels of contaminants in this material are comparable to those found in unadulterated wood for the seven contaminants for which data was presented, the Agency stated in the March 2011 rule that such treated-wood meets the legitimacy criterion on the level of contaminants and comparability to traditional fuels. Therefore, under that rule, borate-treated wood could be classified as a non-waste fuel, provided they met the other two legitimacy criteria and provided that the contaminant levels for any other HAP that may be present in this material are also comparable to or less than those in traditional fuels. The rule noted that such borate-treated wood would need to be burned as a fuel for energy recovery within the control of the generator. Finally, the rule indicated that some borate-treated wood is subsequently treated with creosote, to provide an insoluble barrier to prevent the borate compounds from leaching out of the wood. The Agency did not receive data on the contaminant levels of the resulting material, but data presented on creosote treated lumber when combusted in units designed to burn biomass indicated that this NHSM would likely no longer meet the legitimacy criteria and would be considered a solid waste when burned as a fuel.

    The rule did not have information generally about the transfer of borate-treated wood to other companies to make a broad determination about its use as a fuel outside the control of the generator. Thus, under the March 2011 rule, borate-treated wood would need to be burned as a fuel for energy recovery within the control of the generator (76 FR 15484).

    With regard to wood treated with copper naphthenate, no additional contaminant data was provided for the March 2011 rule that would reverse the position in the January 2010 proposed rule, which considered wood treated with copper naphthenate a solid waste because of concerns of elevated levels of contaminants (76 FR 15484). The rule acknowledged, as in the proposed rule, that the Agency did not have sufficient information on the contaminant levels in wood treated with copper naphthenate. Thus, if a person could demonstrate that copper naphthenate treated-wood is burned in a combustion unit as a fuel for energy recovery within the control of the generator and meets the legitimacy criteria or, if discarded, can demonstrate that they have sufficiently processed the material, that person can handle its copper naphthenate treated-wood as a non-waste fuel.

    2. February 2013 NHSM Final Rule

    In the February 2013 NHSM final rule, EPA noted that the American Forest and Paper Association (AF&PA) and the American Wood Council submitted a letter with supporting information on December 6, 2012, seeking a categorical listing for CTRTs combusted in any unit.16 The letter included information regarding the amounts of railroad ties combusted each year and the value of the ties as fuel. The letter also discussed how CTRTs satisfy the legitimacy criteria, including its high Btu value.

    16 American Forest & Paper Association, American Wood Council—Letter to EPA Administrator, December 6, 2012.

    While this information was useful, it was not sufficient for the EPA to propose that CTRTs be listed categorically as a non-waste fuel at that time. Therefore, to further inform the Agency as to whether to list CTRTs categorically as a non-waste fuel, EPA requested that additional information be provided, and indicated that if this additional information supported and supplemented the representations made in the December 2012 letter, EPA would expect to propose a categorical listing for CTRTs. The requested information included:

    • A list of industry sectors, in addition to forest product mills, that burn railroad ties for energy recovery.

    • The types of boilers (e.g., kilns, stoker boilers, circulating fluidized bed, etc.) that burn railroad ties for energy recovery.

    • The traditional fuels and relative amounts (e.g., startup, 30 percent, 100 percent) of these traditional fuels that could otherwise generally be burned in these types of units. The extent to which non-industrial boilers (e.g., commercial or residential boilers) burn CTRTs for energy recover.

    • Laboratory analyses for contaminants known or reasonably suspected to be present in creosote-treated railroad ties, and contaminants known to be significant components of creosote, specifically polycyclic aromatic hydrocarbons (i.e., PAH-16), dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl, quinoline, and dioxins.17 See 81 FR 6723 for detailed responses to those questions.

    17 The Agency requested these analyses based on the limited information previously available concerning the chemical makeup of CTRTs. That limited information included one well-studied sample from 1990 (showing the presence of both PAHs and dibenzofuran), past TCLP results (which showing the presence of cresols, hexachlorobenzene and 2,4-dinitrotoluene), Material Safety Data Sheets for coal tar creosote (which showing the potential presence of biphenyl and quinoline), and the absence of dioxin analyses prior to combustion despite extensive dioxin analyses of post-combustion emissions.

    3. February 2016 NHSM Final Rule

    As discussed in section II.B of this preamble, EPA stated in the February 2016 final rule that it had reviewed the information submitted from stakeholders regarding CTRTs and determined that the information received supported a categorical determination for those materials under certain conditions (see 40 CFR 241.4(a)(7)). That rule also indicated that, based on an August 21, 2015 letter to Barnes Johnson, TWC requested that the Agency move forward on a subset of materials that were identified in a previous April 2013 petition. EPA stated in the February 2016 rule, the Agency had reviewed the TWC information on the three treated railroad ties, creosote borate, copper naphthenate, submitted on September 11, 2015 and had requested additional contaminant data. Based on information provided to the Agency at the time, we believed these three treated railroad ties were candidates for categorical non-waste listings and expected to begin development of a proposed rule under 40 CFR 241.4(a) regarding those listings in the near future.

    C. Scope of the Proposed Categorical Non-Waste Listing for OTRTs

    As discussed previously in section II.B of this preamble, TWC submitted letters and supporting documents to EPA seeking a categorical listing for OTRTs. The contaminants found in OTRTs are not materially different from the traditional fuels (fuel oil and/or biomass) that these facilities are designed to burn as fuel. Therefore, the Agency is proposing to list, as categorical non-wastes, processed OTRTs when used as fuels. The rationale for this proposal is discussed in detail in the following sections.

    D. Rationale for Proposed Listing 1. Discard

    When deciding whether an NHSM should be listed as a categorical non-waste fuel in accordance with 40 CFR 241.4(b)(5), EPA first evaluates whether or not the NHSM has been discarded, and if not discarded, whether or not the material is legitimately used as a product fuel in a combustion unit. If the material has been discarded, EPA evaluates the NHSM as to whether it has been sufficiently processed into a material that is legitimately used as a product fuel.

    Data submitted by petitioners regarding OTRTs removed from service and processed was analogous to that for CTRTs. Specifically, OTRTs removed from service are sometimes temporarily stored in the railroad right-of-way or at another location selected by the reclamation company. This means that not all OTRTs originate from crossties removed from service in the same year; some OTRTs are processed from crossties removed from service in prior years and stored by railroads or removal/reclamation companies until a contract for reclamation is in place.

    EPA is reiterating its statement from the February 8, 2016 final rule regarding cases where a railroad or reclamation company waits for more than a year to realize the value of OTRTs as a fuel. The Agency again concludes that OTRTs are removed from service and stored in a railroad right-of-way or location for long periods of time—that is, a year or longer, without a determination regarding their final end use (e.g., landscaping, as a fuel or landfilled) thus indicating that the material has been discarded and is a solid waste (see also the general discussion of discard at 76 FR 15463 in the March 2011 rule). Regarding any assertion that OTRTs are a valuable commodity in a robust market, the Agency would like to remind persons that NHSMs may have value in the marketplace and still be considered solid wastes.

    2. Processing

    Since the OTRTs removed from service are considered discarded because they can be stored for long periods of time without a final determination regarding their final end use, in order for them to be considered a non-waste fuel, they must be processed, thus transforming the OTRTs into a product fuel that meets the legitimacy criteria.18 The Agency concludes that the processing of OTRTs described previously in section III.A.1 of this preamble meets the definition of processing in 40 CFR 241.2. As discussed in that section, processing includes operations that transform discarded NHSM into a non-waste fuel or non-waste ingredient, including operations necessary to: remove or destroy contaminants; significantly improve the fuel characteristics (e.g., sizing or drying of the material, in combination with other operations); chemically improve the as-fired energy content; or improve the ingredient characteristics. Minimal operations that result only in modifying the size of the material by shredding do not constitute processing for the purposes of the definition. The Agency concludes that OTRTs meet the definition of processing in 40 CFR 241.3 because contaminant metals are removed in several steps and the fuel characteristics are significantly improved; specifically:

    18 Persons who concluded that their OTRTs are not discarded and thus are not subject to this categorical determination may submit an application to the EPA Regional Administrator that the material has not been discarded when transferred to a third party and is indistinguishable from a product fuel (76 FR 15551).

    • Contaminants (e.g., spikes, plates, transmission wire and insulator bulbs) are removed during initial inspection by the user organization.

    • Removal of contaminant metals occurs again at the reclamation facility using magnets; such removal may occur in multiple stages.

    • The fuel characteristics of the material are improved when the crossties are ground or shredded to a specified size (typically 1-2 inches) depending on the particular needs of the end-use combustor. The grinding may occur in one or more phases.

    • Once the contaminant metals are removed and the OTRTs are ground, there may be additional screening to bring the material to a specified size.

    3. Legitimacy Criteria

    EPA can list a discarded NHSM categorically as a non-waste fuel if it has been “sufficiently processed,” and meets the legitimacy criteria. The three legitimacy criteria to be evaluated are: (1) The NHSM must be managed as a valuable commodity, (2) the NHSM must have a meaningful heating value and be used as a fuel in a combustion unit to recover energy, and (3) the NHSM must have contaminants or groups of contaminants at levels comparable to or less than those in the traditional fuel the unit is designed to burn.19

    19 We note that even if the NHSM does not meet one or more of the legitimacy criteria, the Agency could still propose to list an NHSM categorically by balancing the legitimacy criteria with other relevant factors (see 40 CFR 241.4(b)(2).

    i. Managed as a Valuable Commodity

    Data submitted 20 indicates that OTRT processing and subsequent management is analogous to the processing of CTRTs outlined in the February 8, 2016 final categorical rule. The processing of OTRTs is correlated to the particular needs of the end-use combustor.

    20 See section III.D.4. for a description of EPA's review of all data submitted regarding meeting legitimacy criteria.

    The process begins when the railroad or utility company removes the old OTRTs from service. An initial inspection is conducted where non-combustible materials are sorted out. OTRTs are stored in staging areas until shippable quantities are collected. Shippable quantities are transported via truck or rail to a reprocessing center.

    At the reprocessing center, pieces are again inspected, sorted, and non-combustible materials are removed. Combustible pieces then undergo size reduction and possible blending with compatible combustibles. Once the OTRTs meet the end use specification, they are then sold directly to the end-use combustor for energy recovery. OTRTs are delivered to the end-use combustors via railcar and/or truck similar to delivery of traditional biomass fuels.

    After receipt, OTRTs are stockpiled similar to analogous biomass fuels (e.g., in fuel silos) to maximize dryness and minimize dust. While awaiting combustion at the end-user, which usually occurs within one day to a week of arrival, the OTRTs are also transferred and/or handled from storage in a manner consistent with the transfer and handling of biomass fuels. Procedures include screening by the end-use combustor, combining with other biomass fuels, and transferring to the combustor via conveyor belt or front-end loader.

    Since the storage of the processed material clearly does not exceed reasonable time frames and the processed ties are handled/treated similar to analogous biomass fuels by end-use combustors, OTRTs meet the criterion for being managed as a valuable commodity.

    ii. Meaningful Heating Value and Used as a Fuel To Recover Energy

    EPA received the following information for the heating values of processed OTRTs: 6,867 Btu/lb for creosote-borate; 7,333 Btu/lb for copper naphthenate; 5,967 Btu/lb for copper naphthenate-borate; 5,232 Btu/lb for mixed railroad ties containing 56% creosote, 41% creosote-borate, 1% copper naphthenate, 2% copper naphthenate-borate; and 7,967 Btu/lb for mixed ties containing 25% creosote, 25% creosote borate, 25% copper naphthenate and 25% copper naphthenate-borate.21 22 In the March 2011 NHSM final rule, the Agency indicated that NHSMs with an energy value greater than 5,000 Btu/lb, as fired, are considered to have a meaningful heating value.23 Thus, OTRTs meet the criterion for meaningful heating value and used as a fuel to recover energy.

    21 Letter from Jeff Miller to Barnes Johnson, September 11, 2015; see docket for this proposed rule.

    22 These values reflect averages from 2013 and 2015 data. Relevant lab data on Btu/lb for each types of processed OTRT can be viewed in the September and October 2015 letters from Jeff Miller to Barnes Johnson included in the docket.

    23See 76 FR 15541.

    iii. Contaminants Comparable to or Lower Than Traditional Fuels

    For each type of OTRT, EPA has compared the September 2015 data submitted on contaminant levels by petitioners to contaminant data for two traditional fuels: Biomass, including untreated clean wood, and fuel oil (petitioners did not provide data or request that contaminant comparisons be made to coal). The petitioner's data included samples taken from 15 different used creosote-borate ties, 15 different copper naphthenate-borate ties, 15 creosote ties, and 15 copper naphthenate ties. Each type of tie sample was divided into three groups of five tie samples each. This resulted in 12 total groups corresponding to the four different types ties. Each group was then isolated, mixed together, processed into a fuel-type consistency, and shipped to the laboratory for analysis.

    As noted previously, use of these types of ties are relatively new compared to creosote, so few have transitioned to fuel use at this time. To simulate that transition over time, three samples of unevenly-blended tie material (56% creosote, 41% creosote-borate, 1% copper naphthenate, 2% copper naphthenate-borate) and three samples of equally blended tie material (25% creosote, 25% creosote-borate, 25% copper naphthenate, 25% copper naphthenate-borate) were analyzed. The lab analyzed three samples of each of tie-derived boiler fuel treated with creosote, creosote-borate, copper naphthenate and copper naphthenate-borate. In addition, the lab analyzed three samples of equally-blended tie material, three samples of unevenly-blended tie material, and three samples of untreated wood for a total of 21 samples.

    In addition to September 2015 data, copper naphthenate-borate, and copper naphthenate test data had also been submitted in conjunction with TWC's earlier December 4, 2013 petition and are included in the following tables. As noted in section II.B of this preamble, the data did not have details on the number of samples collected. In addition, sulfur was measured using leachable anion techniques that do not provide results of the total contaminant content, and heat content was not measured. The results of the analysis of the 2015 and 2013 data are shown in the following tables.24

    24 Note for contaminant analyses, when making contaminant comparisons for purposes of meeting the legitimacy criterion, it would be appropriate in this circumstance to find that grouping of contaminants would not result in discard. For example, under the grouping concept, individual SVOC levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is standard practice employed by the Agency in developing regulations and is consistent with monitoring standards under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the issue of grouping contaminants for purposes of determining discard.

    Copper Naphthenate

    Copper Naphthenate Contaminant Copper naphthenate railroad ties
  • contaminant levels af
  • Biomass/
  • Untreated wood b
  • Fuel Oil b
    Metal Elements (ppm—dry basis) Antimony <1.4 ND-26 ND-15.7 Arsenic 0.53-0.93 ND-298 ND-13 Beryllium <0.60-0.05 ND-10 ND-19 Cadmium <0.28-0.20 ND-17 ND-1.4 Chromium 0.22-0.50 ND-340 ND-37 Cobalt <6.0-0.81 ND-213 ND-8.5 Lead <0.36-3.5 ND-340 ND-56.8 Manganese 7.1-166 ND-15,800 ND-3,200 Mercury <0.20 ND-1.1 ND-0.2 Nickel 0.79-1.1 ND-540 ND-270 Selenium 0.41-0.84 ND-9.0 ND-4 Non-Metal Elements (ppm-dry basis) Chlorine <100 ND-5,400 ND-1,260 Fluorine <100 ND-300 ND-14 Nitrogen <500 200-39,500 42-8,950 Sulfur 190-240 ND-8,700 ND-57,000 Semivolatile Hazardous Pollutants (ppm-dry basis) Acenaphthene 3.0-95 ND-50 111 Acenaphthylene <1.3 ND-4 4.1 Anthracene <1.3-6.3 0.4-87 96 Benzo[a]anthracene <1.3 ND-62 41-1,900 Benzo[a]pyrene <1.3 ND-28 0.60-960 Benzo[b]fluoranthene <1.3 ND-42 11-540 Benzo[ghi]perylene <1.3 ND-9 11.4 Benzo[k]fluoranthene <1.3 ND-16 0.6 Chrysene <1.3 ND-53 2.2-2,700 Dibenz[a,h]anthracene <1.3 ND-3 4.0 Fluoranthene <1.3-6.5 0.6-160 31.6-240 Fluorene 4.5-53 ND-40 3,600 Indeno[1,2,3-cd]pyrene <1.3 ND-12 2.3 Naphthalene 8.2-80 ND-38 34.3-4,000 Phenanthrene 8.2-77 0.9-190 0-116,000 Pyrene <1.3-15 0.2-160 23-178 16-PAH 49-298 5-921 3,900-54,700 Pentachlorophenol <30 g ND-1 Biphenyl — e 1,000-1,200 Total SVOC c 77-328 5-922 4,900-54,700 Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis) Benzene <0.69
  • ND-75
    Phenol — e ND-7,700 Styrene <0.69 ND-320 Toluene <0.69 ND-380 Xylenes <0.69 ND-3,100 Cumene — e 6,000-8,000 Ethyl benzene <0.69 22-1,270 Formaldehyde — e 1.6-27 Hexane — e 50-10,000 Total VOC d <3.4 1.6-27 6,072-19,810 a Data provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015. b Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here. e Cells with the “—” indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties). f Non-detects are indicated by “<” preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where the non-detect value may be greater than another test's detected value due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab. g Not expected in the treated wood formulation being tested based on preservative chemistry.

    As indicated, railroad ties treated with copper naphthenate have contaminants that are comparable to or less than those in biomass or fuel oil. Given that these railroad ties are a type of treated wood biomass, such ties can be combusted in units designed to burn biomass or biomass and fuel oil.

    Copper Naphthenate-Borate

    Copper Naphthenate-Borate Contaminant Copper naphthenate-borate railroad ties contaminant levels af Biomass/
  • Untreated wood b
  • Fuel oil b
    Metal Elements (ppm—dry basis) Antimony <1.4 ND-26 ND-15.7 Arsenic 0.52-0.72 ND-298 ND-13 Beryllium <0.67 ND-10 ND-19 Cadmium <0.31-0.078 ND-17 ND-1.4 Chromium 0.11-0.78 ND-340 ND-37 Cobalt <7.5-0.74 ND-213 ND-8.5 Lead <0.38-4.0 ND-340 ND-56.8 Manganese 14-170 ND-15,800 ND-3,200 Mercury <0.15 ND-1.1 ND-0.2 Nickel 0.46-2.0 ND-540 ND-270 Selenium <0.64-0.52 ND-9.0 ND-4 Non-Metal Elements (ppm—dry basis) Chlorine <100 ND-5,400 ND-1,260 Fluorine <100 ND-300 ND-14 Nitrogen <500 200-39,500 42-8,950 Sulfur 140-170 ND-8,700 ND-57,000 Semivolatile Hazardous Pollutants (ppm—dry basis) Acenaphthene 4.8-17 ND-50 111 Acenaphthylene <1.2-0.9 ND-4 4.1 Anthracene <1.2-7.2 0.4-87 96 Benzo[a]anthracene <1.2-3.7 ND-62 41-1,900 Benzo[a]pyrene <1.2-1.4 ND-28 0.60-960 Benzo[b]fluoranthene <1.2-3.9 ND-42 11-540 Benzo[ghi]perylene <1.2 ND-9 11.4 Benzo[k]fluoranthene <1.2-20 ND-16 0.6 Chrysene <1.2-6.6 ND-53 2.2-2,700 Dibenz[a,h]anthracene <1.2 ND-3 4.0 Fluoranthene <1.2-20 0.6-160 31.6-240 Fluorene 2.2-16 ND-40 3,600 Indeno[1,2,3-cd]pyrene <1.2 ND-12 2.3 Naphthalene 5.2-82 ND-38 34.3-4,000 Phenanthrene 3.6-43 0.9-190 0-116,000 Pyrene <1.3-19 0.2-160 23-178 16-PAH 39-145 5-921 3,900-54,700 Pentachlorophenol <28 g ND-1 Biphenyl — e 1,000-1,200 Total SVOC c 66-173 5-922 4,900-54,700 Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis) Benzene <0.77
  • ND-75
    Phenol — e ND-7,700 Styrene <0.77 ND-320 Toluene <0.77 ND-380 Xylenes <0.77 ND-3,100 Cumene — e 6,000-8,000 Ethyl benzene <0.77 22-1,270 Formaldehyde — e 1.6-27 Hexane — e 50-10,000 Total VOC d <3.8 1.6-27 6,072-19,810 a Data provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015. b Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here. e Cells with the “—” indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties). f Non-detects are indicated by “<” preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where the non-detect value may be greater than another test's detected value due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab. g Not expected in the treated wood formulation being tested based on preservative chemistry.

    As indicated, railroad ties treated with copper naphthenate-borate have contaminants that are comparable to or less than those in biomass or fuel oil. Given that these railroad ties are a type of treated wood biomass, such ties can be combusted in units designed to burn biomass or biomass and fuel oil.

    Creosote-Borate

    Creosote-Borate Contaminant Creosote-borate railroad ties contaminant levels af Biomass/untreated wood b Fuel oil b Metal Elements (ppm—dry basis) Antimony <1.3 ND-26 ND-15.7 Arsenic <1.3-0.80 ND-298 ND-13 Beryllium <0.60-0.032 ND-10 ND-19 Cadmium 0.059-0.25 ND-17 ND-1.4 Chromium 0.10-1.1 ND-340 ND-37 Cobalt <6.0-0.22 ND-213 ND-8.5 Lead <0.37-1.8 ND-340 ND-56.8 Manganese 22-140 ND-15,800 ND-3,200 Mercury <0.15-0.066 ND-1.1 ND-0.2 Nickel 0.71-1.8 ND-540 ND-270 Selenium 0.59-1.4 ND-9.0 ND-4 Non-Metal Elements (ppm—dry basis) Chlorine <100 ND-5,400 ND-1,260 Fluorine <100 ND-300 ND-14 Nitrogen <500 200-39,500 42-8,950 Sulfur 170-180 ND-8,700 ND-57,000 Semivolatile Hazardous Pollutants (ppm—dry basis) Acenaphthene 600-2,200 ND-50 111 Acenaphthylene 17-96 ND-4 4.1 Anthracene 350-2,000 0.4-87 96 Benzo[a]anthracene 200-1,500 ND-62 41-1,900 Benzo[a]pyrene 62-500 ND-28 0.60-960 Benzo[b]fluoranthene 110-960 ND-42 11-540 Benzo[ghi]perylene 13-170 ND-9 11.4 Benzo[k]fluoranthene 40-320 ND-16 0.6 Chrysene 210-1,300 ND-53 2.2-2,700 Dibenz[a,h]anthracene <21-58 ND-3 4.0 Fluoranthene 1,100-8,400 0.6-160 31.6-240 Fluorene 500-2,200 ND-40 3,600 Indeno[1,2,3-cd]pyrene 14-170 ND-12 2.3 Naphthalene 660-2,900 ND-38 34.3-4,000 Phenanthrene 2,000-12,000 0.9-190 0-116,000 Pyrene 780-5,200 0.2-160 23-178 16-PAH 6,600-38,000 5-921 3,900-54,700 Pentachlorophenol <790 g ND-1 Biphenyl 137-330 h 1,000-1,200 Total SVOC c 7,200-39,000 5-922 4,900-54,700 Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis) Benzene <3.9
  • ND-75
    Phenol — e ND-7,700 Styrene <3.9 ND-320 Toluene <3.9 ND-380 Xylenes <3.9 ND-3,100 Cumene — e 6,000-8,000 Ethyl benzene <3.9 22-1,270 Formaldehyde — e 1.6-27 Hexane — e 50-10,000 Total VOC d <20 1.6-27 6,072-19,810 a Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015. b Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here. e Cells with the “—” indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties). f Non-detects are indicated by “<” preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where the non-detect value may be greater than another test's detected value due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab. g Not expected in the treated wood formulation being tested based on preservative chemistry. h Not tested for, but presumptive worst-case value is presented for treated wood type based on data from previous CTRT testing.

    Semi-volatile organic compound (SVOC) levels in creosote-borate processed railroad ties are not comparable to biomass. Given that creosote-borate railroad ties are a type of treated wood biomass, and any unit burning these ties typically burns untreated wood, the EPA considered two scenarios.

    In the first scenario, where a combustion unit is designed to only burn biomass, EPA compared contaminant levels in creosote-borate to contaminant levels in biomass. In this scenario, the total SVOC levels can reach 39,000 ppm, driven by high levels of polycyclic aromatic hydrocarbons (PAHs).25 These compounds are very low levels in clean wood and biomass, and the contaminants are therefore not comparable in this instance. In fact, they are present at orders of magnitude higher than found in clean wood and biomass.

    25 We note that for several SVOCs—cresols, hexachlorobenzene, and 2,4-dinitrotoluene, which were expected to be in creosote, and for which information was specifically requested in the February 7, 2013 NHSM final rule (78 FR 9111), the data demonstrate that they were not detectable, or were present at levels so low to be considered comparable.

    In the second scenario, a combustion unit is designed to burn biomass and fuel oil. As previously mentioned, SVOCs are present in CTRTs (up to 39,000 ppm) at levels well within the range observed in fuel oil (up to 54,700 ppm). Therefore, creosote-borate railroad ties have comparable contaminant levels to other fuels combusted in units designed to burn both biomass and fuel oil, and as such, meet this criterion if used in facilities that are designed to burn both biomass and fuel oil.26

    26 As discussed previously, the March 21, 2011 NHSM final rule (76 FR 15456), noting the presence of hexachlorobenzene and dinitrotoluene, suggested that creosote-treated lumber include contaminants at levels that are not comparable to those found in wood or coal, the fuel that creosote-treated wood would replace, and would thus be considered solid wastes. The February 2016 final rule differs in several respects from the conclusions in the March 2011 rule. The February 2016 final rule concludes that CTRTs are a categorical non-waste when combusted in units designed to burn both fuel oil and biomass. The March 2011 rule, using 1990 data on railroad cross ties, was based on contaminant comparisons to coal and biomass and not fuel oil. As discussed above, when compared to fuel oil, total SVOC contaminant concentrations (which would include dinitrotoluene and hexachlorobenzene) in CTRTs would be less that those found in fuel oil, and in fact, the 2012 data referenced in this final rule showed non-detects for those two contaminants.

    As stated in the preamble to the February 7, 2013, NHSM final rule, combustors may burn NHSMs as a product fuel if they compare appropriately to any traditional fuel the unit can or does burn (78 FR 9149). Combustion units are often designed to burn multiple traditional fuels, and some units can and do rely on different fuel types at different times based on availability of fuel supplies, market conditions, power demands, and other factors. Under these circumstances, it is arbitrary to restrict the combustion for energy recovery of NHSMs based on contaminant comparison to only one traditional fuel if the unit could burn a second traditional fuel chosen due to such changes in fuel supplies, market conditions, power demands or other factors. If a unit can burn both a solid and liquid fuel, then comparison to either fuel would be appropriate.

    In order to make comparisons to multiple traditional fuels, units must be designed to burn those fuels. If a facility compares contaminants in an NHSM to a traditional fuel a unit is not designed to burn, and that material is highly contaminated, a facility would then be able to burn excessive levels of waste components in the NHSM as a means of discard. Such NHSMs would be considered wastes regardless of any fuel value (78 FR 9149).27 Accordingly, the ability to burn a fuel in a combustion unit does have a basic set of requirements, the most basic of which is the ability to feed the material into the combustion unit. The unit must also be able to ensure the material is well-mixed and maintain temperatures within unit specifications.

    27 78 FR 9149 states “If a NHSM does not contain contaminants at levels comparable to or lower than those found in any [emphasis added] traditional fuel that a combustion unit could burn, then it follows that discard could be occurring if the NHSM were combusted. Whether contaminants in these cases would be destroyed or discarded through releases to the air, they could not be considered a normal part of a legitimate fuel and the NHSM would be considered a solid waste when used as a fuel in that combustion unit.”

    Mixed Treatments-Creosote, Borate, Copper Naphthenate

    Mix 1-1-1-1 Contaminant Mixed railroad ties
  • (25%C-25%CB-
  • 25%CuN-25%CuNB)
  • contaminant levels af
  • Biomass/untreated wood b Fuel oil b
    Metal Elements (ppm—dry basis) Antimony <1.4 ND-26 ND-15.7 Arsenic <1.5-0.81 ND-298 ND-13 Beryllium <0.70 ND-10 ND-19 Cadmium 0.15-0.38 ND-17 ND-1.4 Chromium 0.15-0.17 ND-340 ND-37 Cobalt <7.0-0.07 ND-213 ND-8.5 Lead 0.50-0.81 ND-340 ND-56.8 Manganese 110-190 ND-15,800 ND-3,200 Mercury <0.15-0.06 ND-1.1 ND-0.2 Nickel 0.75-1.4 ND-540 ND-270 Selenium <0.66-0.50 ND-9.0 ND-4 Non-Metal Elements (ppm—dry basis) Chlorine <100 ND-5,400 ND-1,260 Fluorine <100 ND-300 ND-14 Nitrogen <500 200-39,500 42-8,950 Sulfur 140-210 ND-8,700 ND-57,000 Semivolatile Hazardous Pollutants (ppm—dry basis) Acenaphthene 500-1,100 ND-50 111 Acenaphthylene 12-25 ND-4 4.1 Anthracene 290-1,100 0.4 -87 96 Benzo[a]anthracene 140-350 ND-62 41-1,900 Benzo[a]pyrene 47-120 ND-28 0.60-960 Benzo[b]fluoranthene 83-210 ND-42 11-540 Benzo[ghi]perylene 9.4-23 ND-9 11.4 Benzo[k]fluoranthene 30-64 ND-16 0.6 Chrysene 160-360 ND-53 2.2-2,700 Dibenz[a,h]anthracene <7.2-4.7 ND-3 4.0 Fluoranthene 800-2,100 0.6-160 31.6-240 Fluorene 350-1,000 ND-40 3,600 Indeno[1,2,3-cd]pyrene 10-28 ND-12 2.3 Naphthalene 320-580 ND-38 34.3-4,000 Phenanthrene 1,300-3,800 0.9-190 0-116,000 Pyrene 520-1,400 0.2-160 23-178 16-PAH 4,500-12,000 5-921 3,900-54,700 Pentachlorophenol <330 g ND-1 Biphenyl 137-330 h 1,000-1,200 Total SVOC c 4,800-13,000 5-922 4,900-54,700 Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis) Benzene <1.1
  • ND-75
    Phenol — e ND-7,700 Styrene <1.1 ND-320 Toluene <1.1 ND-380 Xylenes <1.1 ND-3,100 Cumene — e 6,000-8,000 Ethyl benzene <1.1 22-1,270 Formaldehyde — e 1.6-27 Hexane — e 50-10,000 Total VOC d <5.3 1.6-27 6,072-19,810 a Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015. b Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here. e Cells with the “—” indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties). f Non-detects are indicated by “<” preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where the non-detect value may be greater than another test's detected value due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab. g Not expected in the treated wood formulation being tested based on preservative chemistry. h Not tested for, but presumptive worst-case value is presented for treated wood type based on data from previous CTRT testing.
    Mix 56-41-1-2 Contaminant Mixed railroad ties
  • (56%C-41%CB-
  • 1%CuN-2%CuNB)
  • contaminant levels af
  • Biomass/untreated wood b Fuel oil b
    Metal Elements (ppm—dry basis) Antimony <1.4 ND-26 ND-15.7 Arsenic <1.4-0.65 ND-298 ND-13 Beryllium <0.68 ND-10 ND-19 Cadmium 0.08-0.09 ND-17 ND-1.4 Chromium 0.12-0.78 ND-340 ND-37 Cobalt <6.8-0.18 ND-213 ND-8.5 Lead <0.44-0.93 ND-340 ND-56.8 Manganese 47-77 ND-15,800 ND-3,200 Mercury <0.13-0.03 ND-1.1 ND-0.2 Nickel 0.50-0.99 ND-540 ND-270 Selenium 0.56-0.68 ND-9.0 ND-4 Non-Metal Elements (ppm—dry basis) Chlorine <100 ND-5,400 ND-1,260 Fluorine <100 ND-300 ND-14 Nitrogen <500 200-39,500 42-8,950 Sulfur 230-280 ND-8,700 ND-57,000 Semivolatile Hazardous Pollutants (ppm—dry basis) Acenaphthene 1,500-1,800 ND-50 111 Acenaphthylene 31-40 ND-4 4.1 Anthracene 760-1,100 0.4-87 96 Benzo[a]anthracene 390-490 ND-62 41-1,900 Benzo[a]pyrene 150-200 ND-28 0.60-960 Benzo[b]fluoranthene 230-310 ND-42 11-540 Benzo[ghi]perylene 28-56 ND-9 11.4 Benzo[k]fluoranthene 93-130 ND-16 0.6 Chrysene 390-520 ND-53 2.2-2,700 Dibenz[a,h]anthracene <28 ND-3 4.0 Fluoranthene 2,000-2,700 0.6-160 31.6-240 Fluorene 1,100-1,300 ND-40 3,600 Indeno[1,2,3-cd]pyrene 32-52 ND-12 2.3 Naphthalene 890-1,200 ND-38 34.3-4,000 Phenanthrene 3,600-4,500 0.9-190 0-116,000 Pyrene 1,300-1,800 0.2-160 23-178 16-PAH 13,000-16,000 5-921 3,900-54,700 Pentachlorophenol <630 g ND-1 Biphenyl 137-330 h 1,000-1,200 Total SVOC c 13,000-17,000 5-922 4,900-54,700 Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis) Benzene <2.3
  • ND-75
    Phenol — e ND-7,700 Styrene <2.3 ND-320 Toluene <2.3 ND-380 Xylenes <2.3 ND-3,100 Cumene — e 6,000-8,000 Ethyl benzene <2.3 22-1,270 Formaldehyde — e 1.6-27 Hexane — e 50-10,000 Total VOC d <12 1.6-27 6,072-19,810 a Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015. b Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here. e Cells with the “—” indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties). f Non-detects are indicated by “<” preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where the non-detect value may be greater than another test's detected value due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab. g Not expected in the treated wood formulation being tested based on preservative chemistry. h Not tested for, but presumptive worst-case value is presented for treated wood type based on data from previous CTRT testing.

    In the mixed treated wood scenarios above, as previously discussed, SVOCs are present (up to 17,000 ppm) at levels well within the range observed in fuel oil (up to 54,700 ppm). Therefore, mixed railroad ties with creosote, borate and copper naphthenate have comparable contaminant levels to other fuels combusted in units designed to burn both biomass and fuel oil, and as such, meet this criterion if used in facilities that are designed to burn both biomass and fuel oil.

    4. OTRT Sampling and Analysis Data History

    The data collection supporting the OTRT non-waste determination has been based on several rounds of data submittals by TWC followed by EPA questions and comments on the data provided. We have described the process of forming the OTRT data set, and all materials provided by TWC are available in the docket to this rulemaking.

    The TWC submitted data on various wood preservative types, including those referred to as OTRTs, in their April 3, 2013 petition letter requesting a categorical determination that all preserved wood types were non-waste fuels. However, the contaminant comparison data presented in the petition were incomplete and not based on established analytical data. The EPA response to TWC requested submittal of analytical data to determine contaminant concentrations in the OTRT wood.

    In November 2013, TWC responded to EPA's request, submitting laboratory reports on analyses of the various preservative wood types, including OTRTs. The EPA reviewed the laboratory reports and techniques, and determined that there were limited data points available (i.e., one per preservative type) and that the analytical techniques for several contaminants (chlorine, nitrogen, sulfur, and fluorine) were not appropriate to provide information on the entire preserved wood sample as combusted, reflecting only a leachable component. Furthermore, EPA questioned the representativeness of the samples being analyzed and the repeatability of the analyses.

    In August, 2015, TWC performed additional sampling and analyses to address these deficiencies in the data. In response to EPA's concerns on previous data, and as described previously, TWC developed a sampling program in which 15 OTRT railroad ties of each preservative type were collected from various geographical areas. These 15 ties were then separated into three 5 tie groups, then processed into a boiler-fuel consistency using commercial processing techniques. A sample of each 5-tie group was then shipped to an independent laboratory for analysis, thereby producing 3 data points for each preservative type. TWC also prepared two blends: One with equal portions of creosote, creosote-borate, copper naphthenate, and copper naphthenate-borate; and the second a weighted blend of these tie types in proportion to current usage ratios of each preservative chemistry. These blends samples were analyzed in triplicate, for a total of 18 samples being analyzed (i.e., three from each tie sample group). Two laboratories were used by TWC to perform the analysis: One laboratory analyzed metals, mercury, semivolatiles, and heat of combustion; and the other laboratory analyzed volatiles, chlorine, fluorine, and nitrogen. All methods used were EPA or ASTM methods, and were appropriate for the materials being tested. No specific sampling methodology was employed in taking the samples from the 5-ties group.

    The EPA reviewed the 2015 test data, which was provided by TWC on September 11, 2015, and provided TWC with additional follow-up questions and clarifications, including the specific sources of the ties. TWC's response noted the sources of ties for each chemistry and indicated that the ties generally originated in the southeast, but there are also ties from Pennsylvania, South Dakota, and Kentucky represented within the TWC data set. The EPA also noted some exceptions and flags within the analytical report, such as sample coolers upon receipt at the lab were outside the required temperature criterion; surrogate recoveries for semivolatile samples (which represent extraction efficiency within a sample matrix) were sometimes lower or higher than those for samples containing creosote-treated wood; and dilution factors (dilution is used when the sample is higher in concentration than can be analyzed) for creosote-treated wood samples were high (up to 800). The laboratory noted these issues in the report narrative, but concluded that there were no corrective actions necessary.

    Finally, EPA requested further information on these issues noted in the report narrative, as well as supporting quality assurance documentation from the laboratories. With respect to surrogate recoveries and dilutions, the lab indicated that the high dilutions were required for the creosote-containing matrix to avoid saturation of the detector instrument.28 Also, the shipping cooler temperature criterion of 4 degrees Celsius, which EPA views as standard practice, is not wholly applicable in this case due to the nature of the samples. Since the ties were used and stored after being taken out of service in ambient atmosphere and are not biologically active, the 4 degree Celsius receipt condition is not necessary, but was noted in the report as part of laboratory standard operating procedure.

    28 Samples with concentrations exceeding the calibration range must be diluted to fall within the calibration range. The more a sample is diluted, the higher the reporting limit. Sample dilution is required when the concentration of a compound exceeds the amount that produces a full-scale response. At that point the detector becomes saturated and fails to respond to additional target compound(s). Diluting samples to accommodate the high-concentrations can reduce the concentration of the target analytes to levels where they can no longer be detected.

    E. Summary and Request for Comment

    EPA believes it has sufficient information to propose to list OTRTs categorically as non-waste fuels. For units combusting copper-naphthenate-borate and/or copper naphthenate railroad ties, such materials could be combusted in units designed to burn biomass or biomass and fuel oil. For units combusting railroad ties containing cresosote, including creosote-borate or any mixtures of ties containing cresosote, borate and copper naphthenate, such materials must be burned in combustion units that are designed to burn both biomass and fuel oil. The Agency would consider units to meet this requirement if the unit combusts fuel oil as part of normal operations and not solely as part of start up or shut down operations.

    Consistent with the approach for CTRTs outlined in the February 2016 rule, the Agency is also proposing that units combusting railroad ties treated with cresosote-borate (or other mixtures of treated railroad ties containing creosote, borate and copper naphthenate) in units designed to burn biomass and fuel oil, could also combust those materials in units at major pulp and paper mills or units at power production facilities subject to 40 CFR part 63, subpart DDDDD (Boiler MACT) that combust such ties and had been designed to burn biomass and fuel oil, but are modified (e.g., oil delivery mechanisms are removed) in order to use natural gas instead of fuel oil as part of normal operations and not solely as part of start-up or shut-down operations. These ties may continue to be combusted as a product fuel only if certain conditions are met, which are intended to ensure that they are not being discarded:

    • Must be combusted in existing (i.e., commenced construction prior to April 14, 2014) stoker, bubbling bed, fluidized bed or hybrid suspension grate boilers; and

    • Must comprise no more than 40 percent of the fuel that is used on an annual heat input basis.

    The standard would be applicable to existing units burning creosote-borate, and mixtures of creosote, copper naphthenate and borate treated railroad ties that had been designed to burn fuel oil and biomass and have been modified to burn natural gas. The standard will also apply if an existing unit designed to burn fuel oil and biomass is modified at some point in the future.

    The approach addresses only the circumstance where contaminants in these railroad ties are comparable to or less than the traditional fuels the unit was originally designed to burn (both fuel oil and biomass) but that design was modified in order to combust natural gas. The approach is not a general means to circumvent the contaminant legitimacy criterion by allowing combustion of any NHSM with elevated contaminant levels, i.e., levels not comparable to the traditional fuel the unit is currently designed to burn. The particular facilities in this case had used these ties and would clearly be in compliance with the legitimacy criteria if they did not switch to the cleaner natural gas fuel. Information indicating that these ties are an important part of the fuel mix due to the consistently lower moisture content and higher Btu value, as well as the benefits of drier more consistent fuel to combustion units with significant swings in steam demand, further suggest that discard is not occurring. Therefore, EPA believes it appropriate to balance other relevant factors in this categorical non-waste determination and for the Agency to decide that the switching to the cleaner natural gas would not render these materials a waste fuel.

    This case is no different from the Agency's determination in the February 2016 rule with respect to CTRTs. This determination is accepted Agency policy and is appropriately applied to the case of other treated railway ties in this proceeding. This determination, as discussed in the February 2016 rule, is based on the historical usage as a product fuel in stoker, bubbling bed, fluidized bed and hybrid suspension grate boilers (i.e., boiler designs used to combust used railroad ties, see 81 FR 6732).

    The Agency solicits comments on the proposed non-waste categorical determination as described previously. The Agency is also specifically requesting comment on the following:

    • Whether railroad ties with de minimis levels of creosote should be allowed to be combusted in biomass only units;

    • Should a particular de minimus level should be designated and on what should this level be based;

    • Whether these OTRTs are combusted in units designed to burn coal in lieu of, or in addition to biomass and fuel oil, and whether the contaminant comparisons to meet legitimacy criteria should include comparisons to coal;

    • In light of the data and sampling history described above, whether the quality of data is adequate to support the proposed determination;

    • Additional data that should be considered in making the comparability determinations for OTRTs.

    F. Copper and Borates Literature Review and Other EPA Program Review Summary

    Neither copper nor borate are hazardous air pollutants (HAP), and thus are not contaminants under NHSM standards.29 30 To determine whether those compounds pose health risk concerns not directly covered by the NHSM standards, and how those concerns may be addressed under other Agency programs, we conducted a literature review on copper and borate and the rules these constituents and their compounds.

    29 CAA Section 112 requires EPA to promulgate regulations to control emissions of 187 HAP from sources in source categories listed by EPA under section 112(c), while CAA section 129 CISWI standards include numeric emission limitations for the nine pollutants, plus opacity (as appropriate), that are specified in CAA section 129(a)(4). For the purpose of NHSM standards, the definition of contaminants is limited to HAP under CAA 112 and CAA 129.

    30 We note also under the CAA standards for smaller area sources, emission limits are not required for copper, borate (or for HAPs). Standards for area sources focus on tune-ups of the boiler unit (see 40 CFR 40 CFR part 63, subpart JJJJJJ.

    Under the Clean Water Act, EPA's Office of Water developed the Lead and Copper Rule which became effective in 1991 (56 FR 26460). This rule set a limit of 1.3 ppm copper concentration in 10% of tap action level for public water. Exceedances of this limit require additional treatment steps in order to reduce waste corrosivity and prevent leaching of these metals (including copper) from plumbing and distribution systems. EPA's Office of Water also issued a fact sheet for copper under the Clean Water Act section 304(a) titled the Aquatic Life Ambient Freshwater Quality Criteria.31 This fact sheet explains that copper is an essential nutrient at low concentrations, but is toxic to aquatic organisms at higher concentrations. The fact sheet listed the following industries that contribute to manmade discharges of copper to surface waters: Mining, leather and leather products, fabricated metal products, and electric equipment. No mention was made of deposition from combustion sources, such as area source boilers that may not have robust particulate matter control devices installed on them. By comparison, there are no National Recommended Aquatic Life Criteria for boron or borates.

    31 Aquatic life criteria for toxic chemicals are the highest concentration of specific pollutants or parameters in water that are not expected to pose a significant risk to the majority of species in a given environment or a narrative description of the desired conditions of a water body being “free from” certain negative conditions.

    EPA also investigated whether there were any concerns that copper and borate can react to form polychlorinated dibenzodioxin and dibenzofurans (PCDD/PCDF) during the combustion process. Specific studies evaluating copper involvement in dioxins and furans formation in municipal or medical waste incinerator flue gas have been conducted.32 While the exact mechanism and effects of other combustion parameters on PCDD and PCDF formation are still unknown, increased copper chloride (CuCl) and/or cupric chloride (CuCl2) on fly ash particles has been shown to increase concentrations of PCDD and PCDF in fly ash. Various researchers conclude that CuCl and/or CuCl2 are serving either roles as catalysts in dioxin formation or as chlorine sources for subsequent PCDD/PCDF formation reactions (i.e., the CuCl and/or CuCl2 serve as dechlorination/chlorination catalysts). Copper emissions from fly ash are reduced with good particulate matter controls. A high performance fabric filter may be the best control device, although some portion of fine particulate matter may pass through. Cyclone separators and electro-static precipitators have not been shown to be effective in controlling these emissions, and these types of controls may be more prevalent amongst smaller, area source boilers. Overall, results from many studies indicate that most of the copper ends up in the bottom ash.

    32 See technical memorandum on copper-related programs and emission studies available in the docket to this rulemaking.

    Generally, borates have a low toxicity, and should not be a concern from a health risk perspective. As indicated previously, neither boron nor borates are listed as HAP under CAA section 112, nor are they considered to be criteria air pollutants subject to any emissions limitations. However, elemental boron has been identified by EPA in the coal combustion residuals (CCR) risk analysis 33 to present some potential risks for ecological receptors. As a result of this risk, and boron's ability to move through the subsurface,34 boron has been included as a monitored constituent in CCR monitoring provisions for coal ash impoundments.

    33 Human and Ecological Risk Assessment of Coal Combustion Residuals, EPA, December 2014.

    34 See 80 FR 21302, April 17, 2015.

    Copper has some acute toxicity, but these exposures appear to be the result of direct drinking water or cooking-related intake. We anticipate the only routes that copper releases to the environment could result from burning copper naphthenate treated ties would be stormwater runoff from the ties and deposition from boiler emissions. The amount of copper remaining in the tie after its useful life, however, may be greatly reduced from the original content, and facilities manage the shredded tie material in covered areas to prevent significant moisture swings, therefore, we do not expect impacts from copper-containing runoff. Due to the high vaporization temperature, copper will exist in solid phase after it leaves the furnace, and would therefore be controlled in the air pollution control device operated to control particulate emissions from the boiler.

    EPA solicits comment and seeks any additional information (e.g. preservative leaching rates) that would help further inform the determinations outlined above regarding management and combustion of borate and copper treated railroad ties and impacts to surface water, drinking water or air not addressed under the NHSM standards.

    IV. Effect of This Proposal on Other Programs

    Beyond expanding the list of NHSMs that categorically qualify as non-waste fuels, this rule does not change the effect of the NHSM regulations on other programs as described in the March 21, 2011 NHSM final rule, as amended on February 7, 2013 (78 FR 9138) and February 8, 2016 (81 FR 6688). Refer to section VIII of the preamble to the March 21, 2011 NHSM final rule 35 for the discussion on the effect of the NHSM rule on other programs.

    35 76 FR 15456, March 21, 2011 (page 15545).

    V. State Authority A. Relationship to State Programs

    This proposal does not change the relationship to state programs as described in the March 21, 2011 NHSM final rule. Refer to section IX of the preamble to the March 21, 2011 NHSM final rule 36 for the discussion on state authority including, “Applicability of State Solid Waste Definitions and Beneficial Use Determinations” and “Clarifications on the Relationship to State Programs.” The Agency, however, would like to reiterate that this proposed rule (like the March 21, 2011 and the February 7, 2013 final rules) is not intended to interfere with a state's program authority over the general management of solid waste.

    36 76 FR 15456, March 21, 2011 (page 15546).

    B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of this proposed rule are included in this rulemaking action under RCRA subtitle D. Although the EPA does promulgate criteria for solid waste landfills and approves state municipal solid waste landfill permitting programs, RCRA does not provide the EPA with authority to approve state programs beyond those landfill permitting programs. While states are not required to adopt regulations promulgated under RCRA subtitle D, some states incorporate federal regulations by reference or have specific state statutory requirements that their state program can be no more stringent than the federal regulations. In those cases, the EPA anticipates that, if required by state law, the changes being proposed in this document, if finalized, will be incorporated (or possibly adopted by authorized state air programs) consistent with the state's laws and administrative procedures.

    VI. Cost and Benefits

    The value of any regulatory action is traditionally measured by the net change in social welfare that it generates. This rulemaking, as proposed, establishes a categorical non-waste listing for selected NHSMs under RCRA. This categorical non-waste determination allows these materials to be combusted as a product fuel in units, subject to the CAA section 112 emission standards, without being subject to a detailed case-by-case analysis of the material(s) by individual combustion facilities, provided they meet the conditions of the categorical listing. The proposal establishes no direct standards or requirements relative to how these materials are managed or combusted. As a result, this action alone does not directly invoke any costs 37 or benefits. Rather, this RCRA proposal is being developed to simplify the rules for identifying which NHSMs are not solid wastes and to provide additional clarity and direction for owners or operators of combustion facilities. In this regard, this proposal provides a procedural benefit to the regulated community, as well as the states through the establishment of regulatory clarity and enhanced materials management certainty.

    37 Excluding minor administrative burden/cost (e.g., rule familiarization).

    Because this RCRA action is definitional only, any costs or benefits indirectly associated with this action would not occur without the corresponding implementation of the relevant CAA rules. However, in an effort to ensure rulemaking transparency, the EPA prepared an assessment in support of this action that examines the scope and direction of these indirect impacts, for both costs and benefits.38 This document is available in the docket for review and comment. Finally, we recognize that this action would indirectly affect various materials management programs and policies, and we are sensitive to these concerns. The Agency encourages comment on these effects.

    38 U.S. EPA, Office of Resource Conservation and Recovery, “Assessment of the Potential Costs, Benefits, and Other Impacts for the Proposed Rule: Categorical Non-Waste Determination for Selected Non Hazardous Secondary Materials (NHSMs): Creosote-Borate Treated Railroad Ties, Copper Naphthenate Treated Railroad Ties, and Copper Naphthenate-Borate Treated Railroad Ties” EPA Docket Number: EPA-HQ-OLEM-2016-0248.

    The assessment document, as mentioned previously, finds that facilities operating under CAA section 129 standards that are currently burning CTRTs, and no other solid wastes, and who had planned to continue burning these materials, may experience cost savings associated with the potential modification and operational adjustments of their affected units. In this case, the unit-level cost savings are estimated, on average, to be approximately $266,000 per year. In addition, the increased regulatory clarity and certainty associated with this action may stimulate increased product fuel use for one or more of these NHSMs, potentially resulting in upstream life cycle benefits associated with reduced extraction of selected virgin materials.

    VII. Statutory and Executive Order Reviews

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

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action. The Office of Management and Budget (OMB) waived review. The EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, “Assessment of the Potential Costs, Benefits, and Other Impacts for the Proposed Rule—Categorical Non-Waste Determination for Selected Non-Hazardous Secondary Materials (NHSMs): Creosote-Borate Treated Railroad Ties, Copper Naphthenate Treated Railroad Ties, and Copper Naphthenate-Borate Treated Railroad Ties”, is available in the docket. Interested persons are encouraged to read and comment on this document.

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA as this action only proposes to add three new categorical non-waste fuels to the NHSM regulations. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2050-0205.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. The proposed addition of three NHSMs to the list of categorical non-waste fuels is expected to indirectly reduce materials management costs. In addition, this action will reduce regulatory uncertainty associated with these materials and help increase management efficiency. We have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

    D. Unfunded Mandates Reform Act (UMRA)

    This action contains no Federal mandates as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary Federal program. Affected entities are not required to manage the proposed additional NHSMs as non-waste fuels. As a result, this action may be considered voluntary under UMRA. Therefore, this action is not subject to the requirements of section 202 or 205 of the UMRA

    This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, this proposal will not impose direct compliance costs on small governments.

    E. Executive Order 13132: Federalism

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

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. It will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. Potential aspects associated with the categorical non-waste fuel determinations under this proposed rule may invoke minor indirect tribal implications to the extent that entities generating or consolidating these NHSMs on tribal lands could be affected. However, any impacts are expected to be negligible. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in the Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Based on the following discussion, the Agency found that populations of children near potentially affected boilers are either not significantly greater than national averages, or in the case of landfills, may potentially result in reduced discharges near such populations.

    The proposed rule, in conjunction with the corresponding CAA rules, may indirectly stimulate the increased fuel use of one of more the three NHSMs by providing enhanced regulatory clarity and certainty. This increased fuel use may result in the diversion of a certain quantity of these NHSMs away from current baseline management practices. Any corresponding disproportionate impacts among children would depend upon whether children make up a disproportionate share of the population living near the affected units. Therefore, to assess the potential an indirect disproportionate effect on children, we conducted a demographic analysis for this population group surrounding CAA section 112 major source boilers, municipal solid waste landfills, and construction and demolition (C&D) landfills for the Major and Area Source Boilers rules and the CISWI rule.39 We assessed the share of the population under the age of 18 living within a three-mile (approximately five kilometers) radius of these facilities. Three miles has been used often in other demographic analyses focused on areas around industrial sources.40

    39 The extremely large number of area source boilers and the absence of site-specific coordinates prevented us from assessing the demographics of populations located near these sources. In addition, we did not assess child population percentages surrounding cement kilns that may use some out-of-service railroad crossties for their thermal value.

    40 The following publications which have provided demographic information using a 3-mile or 5-kilometer circle around a facility:

    * U.S. GAO (Government Accountability Office). Demographics of People Living Near Waste Facilities. Washington DC: Government Printing Office 1995.

    * Mohai P, Saha R. “Reassessing Racial and Socio-economic Disparities in Environmental Justice Research”. Demography. 2006;43(2): 383-399.

    * Mennis, Jeremy “Using Geographic Information Systems to Create and Analyze Statistical Surfaces of Population and Risk for Environmental Justice Analysis” Social Science Quarterly, 2002, 83(1):281-297.

    * Bullard RD, Mohai P, Wright B, Saha R et al. Toxic Wastes and Race at Twenty, 1987-2007, March 2007. 5 CICWI Rule and Major Source Boilers Rule.

    For major source boilers, our findings indicate that the percentage of the population in these areas under age 18 years is generally the same as the national average.41 In addition, while the fuel source and corresponding emission mix for some of these boilers may change as an indirect response to this rule, emissions from these sources would remain subject to the protective CAA section 112 standards. For municipal solid waste and C&D landfills, we do not have demographic results specific to children. However, using the population below the poverty level as a rough surrogate for children, we found that within three miles of facilities that may experience diversions of one or more of these NHSMs, low-income populations, as a percent of the total population, are disproportionately high relative to the national average. Thus, to the extent that these NHSMs are diverted away from municipal solid waste or C&D landfills, any landfill-related emissions, discharges, or other negative activity potentially affecting low-income (children) populations living near these units are likely to be reduced. Finally, transportation emissions associated with the diversion of some of this material away from landfills to boilers are likely to be generally unchanged, while these emissions are likely to be reduced for on-site generators of paper recycling residuals that would reduce off-site shipments.

    41 U.S. EPA, Office of Resource Conservation and Recovery. Summary of Environmental Justice Impacts for the Non-Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that it is not feasible to determine whether this action has disproportionately high and adverse effects on minority populations, low-income populations, and/or indigenous peoples as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). However, the overall level of emissions, or the emissions mix from affected boilers are not expected to change significantly because the three NHSMs proposed to be categorically listed as non-waste fuels are generally comparable to the types of fuels that these combustors would otherwise burn. Furthermore, these units remain subject to the protective standards established under CAA section 112.

    Our environmental justice demographics assessment conducted for the prior rulemaking 42 remains relevant to this action. This assessment reviewed the distributions of minority and low-income groups living near potentially affected sources using U.S. Census blocks. A three-mile radius (approximately five kilometers) was examined in order to determine the demographic composition (e.g., race, income, etc.) of these blocks for comparison to the corresponding national compositions. Findings from this analysis indicated that populations living within three miles of major source boilers represent areas with minority and low-income populations that are higher than the national averages. In these areas, the minority share 43 of the population was 33 percent, compared to the national average of 25 percent. For these same areas, the percent of the population below the poverty line (16 percent) was higher than the national average (13 percent).

    42 U.S. EPA, Office of Resource Conservation and Recovery. Summary of Environmental Justice Impacts for the Non-Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.

    43 This figure is for overall population minus white population and does not include the Census group defined as “White Hispanic.”

    In addition to the demographics assessment described previously, we also considered the potential for non-combustion environmental justice concerns related to the potential incremental increase in NHSMs diversions from current baseline management practices. These may include the following:

    Reduced upstream emissions resulting from the reduced production of virgin fuel: Any reduced upstream emissions that may indirectly occur in response to reduced virgin fuel mining or extraction may result in a human health and/or environmental benefit to minority and low-income populations living near these projects.

    Alternative materials transport patterns: Transportation emissions associated with NHSMs diverted from landfills to boilers are likely to be similar, except for on-site paper recycling residuals, where the potential for less off-site transport to landfills may result in reduced truck traffic and emissions where such transport patterns may pass through minority or low-income communities.

    Change in emissions from baseline management units: The diversion of some of these NHSMs away from disposal in landfills may result in a marginal decrease in activity at these facilities. This may include non-adverse impacts, such as marginally reduced emissions, odors, groundwater and surface water impacts, noise pollution, and reduced maintenance cost to local infrastructure. Because municipal solid waste and C&D landfills were found to be located in areas where minority and low-income populations are disproportionately high relative to the national average, any reduction in activity and emissions around these facilities is likely to benefit the citizens living near these facilities.

    Finally, this rule, in conjunction with the corresponding CAA rules, may help accelerate the abatement of any existing stockpiles of the targeted NHSMs. To the extent that these stockpiles may represent negative human health or environmental implications, minority and/or low-income populations that live near such stockpiles may experience marginal health or environmental improvements. Aesthetics may also be improved in such areas.

    As previously discussed, this RCRA proposed action alone does not directly require any change in the management of these materials. Thus, any potential materials management changes stimulated by this action, and corresponding impacts to minority and low-income communities, are considered to be indirect impacts, and would only occur in conjunction with the corresponding CAA rules.

    List of Subjects in 40 CFR part 241

    Environmental protection, Air pollution control, Waste treatment and disposal.

    Dated: October 19, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, EPA proposes to amend 40,CFR chapter I as set forth below:

    PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION UNITS 1. The authority citation for Part 241 continues to read as follows: Authority:

    42 U.S.C. 6903, 6912, 7429.

    2. Section 241.2 is amended by adding in alphabetical order the definitions “Copper naphthenate treated railroad ties”, “Copper naphthenate-borate treated railroad ties” and “Creosote-borate treated railroad ties” to read as follows:
    § 241.2 Definitions.

    Copper naphthenate treated railroad ties means railroad ties treated with copper naphthenate made from naphthenic acid and copper salt.

    Copper naphthenate-borate treated railroad ties means railroad ties treated with copper naphthenate and borate made from disodium octaborate tetrahydrate.

    Creosote-borate treated railroad ties means railroad ties treated with a wood preservative containing creosols and phenols and made from coal tar oil and borate made from disodium octaborate tetrahydrate.

    3. Section 241.4 is amended by adding paragraphs (a)(8) through (10) to read as follows:
    § 241.4 Non-waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel.

    (a) * * *

    (8) Creosote-borate treated railroad ties, and mixtures of creosote, borate and copper naphthenate treated railroad ties that are processed (which must include at a minimum, metal removal and shredding or grinding) and then combusted in the following types of units:

    (i) Units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations, and

    (ii) Units at major source pulp and paper mills or power producers subject to 40 CFR part 63, subpart DDDDD that combust creosote-borate treated railroad ties and mixed creosote, borate and copper naphthenate treated railroad ties, and had been designed to burn biomass and fuel oil, but are modified (e.g., oil delivery mechanisms are removed) in order to use natural gas instead of fuel oil, as part of normal operations and not solely as part of start-up or shut-down operations. The creosote-borate and mixed creosote, borate and copper naphthenate treated railroad ties may continue to be combusted as product fuel under this subparagraph only if the following conditions are met, which are intended to ensure that such railroad ties are not being discarded:

    (A) Creosote-borate and mixed creosote, borate and copper naphthenate treated railroad ties must be burned in existing (i.e., commenced construction prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate boilers; and

    (B) Creosote-borate and mixed creosote, borate and copper naphthenate treated railroad ties can comprise no more than 40 percent of the fuel that is used on an annual heat input basis.

    (9) Copper naphthenate treated railroad ties that are processed (which must include at a minimum, metal removal and shredding or grinding) and then combusted in units designed to burn biomass or units designed to burn both biomass and fuel oil.

    (10) Copper naphthenate-borate treated railroad ties that are processed (which must include at a minimum, metal removal and shredding or grinding) and then combusted in units designed to burn biomass or units designed to burn both biomass and fuel oil.

    [FR Doc. 2016-26381 Filed 10-31-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2015-0148; 4500030113] RIN 1018-BA86 Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Headwater Chub and a Distinct Population Segment of the Roundtail Chub AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule; reopening of the comment period.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce the comment period reopening on our proposed rules to add the headwater chub (Gila nigra) and the roundtail chub (Gila robusta) distinct population segment (DPS) as threatened species to the List of Endangered and Threatened Wildlife. We are taking this action based on significant new information regarding the species' taxonomic status as presented by the American Fisheries Society and the American Society of Ichthyologists and Herpetologists (AFS/ASIH) Joint Committee on the Names of Fishes. We are reopening the comment period for 45 days to provide the public additional time to review and consider our proposed rulemakings in light of this new information.

    DATES:

    The comment period end date for the proposed rule that published at 80 FR 60754 on October 7, 2015, is December 16, 2016. We request that comments be submitted by 11:59 p.m. Eastern Time on the closing date.

    ADDRESSES:

    Comment submission: You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the appropriate Docket No.: FWS- R2-ES-2015-0148 for the proposed threatened status for headwater chub and the roundtail chub distinct population segment. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2015-0148; U.S. Fish and Wildlife Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). Comments previously submitted need not be resubmitted as they are already incorporated into the public record and will be fully considered in the final determinations.

    Document availability: The new scientific information described in this document is available at http://www.regulations.gov in Docket No. FWS-R2-ES-2015-0148.

    FOR FURTHER INFORMATION CONTACT:

    Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office; telephone 602-242-0210; facsimile 602-242-2513. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800-877-8339).

    SUPPLEMENTARY INFORMATION:

    Previous Federal Actions

    On October 7, 2015 (80 FR 60754), we published a proposed rule that the headwater chub and the lower Colorado River basin roundtail chub DPS are threatened species under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). Section 4(b)(6)(A) of the Act requires that we make final listing determinations within 1 year of the proposed rule, except where, as in this instance, there is substantial disagreement regarding the sufficiency or accuracy of the available data, which allows for an additional 6 months. On August 15, 2016 (81 FR 54018), we announced a 6-month extension on the proposed rule's final determination due to substantial disagreement regarding the available data's sufficiency or accuracy, and reopened the comment period for 30 days. Accordingly, the deadline to finalize or withdraw the proposed rule is April 7, 2017. For a description of additional previous Federal actions concerning these species, please refer to the proposed listing rule (October 7, 2015; 80 FR 60754).

    Background

    In the proposed rule (October 7, 2015; 80 FR 60754), we evaluated headwater and roundtail chubs as separate species. However, commenters raised questions regarding the headwater and roundtail chubs' taxonomic distinctness, as related to one another and to the Gila chub (Gila intermedia). The Gila chub is listed as an endangered species (November 2, 2005; 70 FR 66664). Some scientists knowledgeable about the species contend that the three entities are not separate species.

    For this reason, the Arizona Game and Fish Department requested that the AFS/ASIH evaluate the most recent literature associated with roundtail chub, headwater chub, and Gila chub taxonomy. The AFS/ASIH is recognized as the authority in establishing the taxonomic status of fish. The panel met in April 2016 and again in August 2016, and presented their conclusions in a final report to the Arizona Game and Fish Department on September 1, 2016 (Page et al. 2016; see Docket No. FWS-R2-ES-2015-0148 at http://www.regulations.gov). The AFS/ASIH review (Page et al. 2016) included published and unpublished studies and reports presented to them in April 2016, and a more recent, unpublished report by Copus et al. (2016), which was included as an appendix to Page et al. (2016). Based on the information reviewed, the AFS/ASIH panel concluded that “no morphological or genetic data define populations of Gila in the lower Colorado River basin (which includes the Little Colorado River, Bill Williams River, Gila River, Verde River, and Salt River drainages) as members of more than one species” and “that the data available support recognition of only one species of Gila, the roundtail chub, Gila robusta” (Page et al. 2016). This new information could be of significant consequence in our final listing determination because our proposed rule reviewed these entities as separate species. Given the new information, we must now review the proposed entities' validity as recognized species. Further, this information was not previously included or considered in our proposed rulemaking or made available to the public. Therefore, we are reopening the comment period for 45 days to allow consideration of this new information, as well as any other aspect of the proposed rule, prior to finalizing our decision.

    Public Comments

    We will accept written comments and information during this reopened comment period on our proposed headwater chub and roundtail chub DPS listing published in the Federal Register on October 7, 2015 (80 FR 60754). We will consider information and recommendations from all interested parties. We intend that any final action resulting from these proposals be as accurate as possible and based on the best available scientific and commercial data.

    In considering the new information received from the AFS/ASIH, as well as the information provided in the proposed rule, we are particularly seeking comments considering:

    (a) Roundtail, headwater, and Gila chub genetics and taxonomy;

    (b) Roundtail, headwater, and Gila chubs' morphological characteristics;

    (c) Those topics previously noted in the October 7, 2015, proposed rule (see 80 FR 60754).

    If you previously submitted comments or information on the proposed rule, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in preparing our final determinations. Our final determinations will take into consideration all written comments and any additional information we received.

    You may submit your comments and materials concerning this proposed rule by one of the methods listed above in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2015-0148. Copies of the proposed rule are also available at http://www.fws.gov/southwest/es/arizona.

    References Cited Copus, J.M., Z. Foresman, W.L. Montgomery, B.W. Bowen, and R.J. Toonen. 2016. Revision of the Gila robusta (Teleostei, Cyprinidae) species complex: Morphological examination and molecular phylogenetics reveal a single species. Report to the Joint ASIH-AFS Committee on Names of Fishes. Page, L.M., C.C. Baldwin, H. Espinosa-Perez, C.R. Gilbert, K.E. Hartel, R.N. Lea, NE. Mandrak, J.J. Schmitter-Soto, and H.J. Walker. 2016. Final report of the AFS/ASIH Joint Committee on the Names of Fishes on the taxonomy of Gila in the Lower Colorado River basin of Arizona and New Mexico. Report to the Arizona Game and Fish Department. 4 pp. Author(s)

    The primary author(s) of this notice are the Arizona Ecological Services Field Office staff members.

    Authority

    The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: October 20, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-26125 Filed 10-31-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 160811726-6987-01] RIN 0648-XE809 Pacific Island Fisheries; 2016-17 Annual Catch Limit and Accountability Measures; Main Hawaiian Islands Deep 7 Bottomfish AGENCY:

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

    ACTION:

    Proposed specifications; request for comments.

    SUMMARY:

    NMFS proposes to specify an annual catch limit (ACL) of 318,000 lb for Deep 7 bottomfish in the main Hawaiian Islands (MHI) for the 2016-17 fishing year, which began on September 1, 2016, and ends on August 31, 2017. If the ACL is projected to be reached, NMFS would close the commercial and non-commercial fisheries for MHI Deep 7 bottomfish for the remainder of the fishing year as an accountability measure (AM). The proposed ACL and AM support the long-term sustainability of Hawaii bottomfish.

    DATES:

    NMFS must receive comments by November 16, 2016.

    ADDRESSES:

    You may submit comments on the 2016-2107 annual catch limit (ACL), identified by NOAA-NMF-2016-0112, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0112, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp Blvd. Bldg. 176, Honolulu, HI 96818.

    Instructions: NMFS may not consider comments sent by any other method, to any other address or individual, or received after the end of the comment period. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    NMFS prepared an environmental analysis that describes the potential impacts on the human environment that could result from the proposed specification. The environmental analysis and other supporting documents are available at www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Ellgen, NMFS PIR Sustainable Fisheries, 808-725-5173.

    SUPPLEMENTARY INFORMATION:

    NMFS and the Western Pacific Fishery Management Council (Council) manage the bottomfish fishery in Federal waters around Hawaii under the Fishery Ecosystem Plan for the Hawaiian Archipelago (FEP), as authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Title 50, Code of Federal Regulations, part 665 (50 CFR 665.4) requires NMFS to specify an ACL for MHI Deep 7 bottomfish each fishing year, based on a recommendation from the Council. The Deep 7 bottomfish are onaga (Etelis coruscans), ehu (E. carbunculus), gindai (Pristipomoides zonatus), kalekale (P. sieboldii), opakapaka (P. filamentosus), lehi (Aphareus rutilans), and hapuupuu (Hyporthodus quernus).

    NMFS proposes to specify an ACL of 318,000 lb of Deep 7 bottomfish in the MHI for the 2016-17 fishing year. The Council recommended the proposed ACL, based on a 2011 bottomfish stock assessment updated with three additional years of data, and in consideration of the risk of overfishing, past fishery performance, the acceptable biological catch recommendation from its Scientific and Statistical Committee, and input from the public. An update to the 2011 NMFS bottomfish stock assessment estimated the overfishing limit for the MHI Deep 7 bottomfish stock complex to be 352,000 lb, which is 31,000 lb less than the estimated overfishing limit in the 2011 stock assessment. Based on this update, the Council recommended a three-year phased reduction of the ACL. NMFS prepared an environmental assessment dated March 17, 2016, of the Council's three-year phased reduction of the ACL (“Specification of Annual Catch Limits and Accountability Measures for Main Hawaiian Islands Deep 7 Bottomfish Fisheries in Fishing Years 2015-16, 2016-17, and 2017-18”), which is available from www.regulations.gov. The proposed ACL of 318,000 lb for 2016-17 is the second annual reduction in this phased approach, and is 8,000 lb less than the ACL that NMFS specified last year.

    The ACL is associated with a 42 percent probability of overfishing, and is more conservative than the 50 percent risk threshold allowed under NMFS guidelines for National Standard 1 of the Magnuson-Stevens Act. NMFS monitors Deep 7 bottomfish catches based on data provided by commercial fishermen to the State of Hawaii. If NMFS projects the fishery will reach this limit, NMFS would close the commercial and non-commercial fisheries for MHI Deep 7 bottomfish for the remainder of the fishing year, as an accountability measure (AM). In addition, if NMFS and the Council determine that the final 2016-17 Deep 7 bottomfish catch exceeds the ACL, NMFS would reduce the Deep 7 bottomfish ACL for the 2017-18 fishing year by the amount of the overage.

    The fishery has not caught the specified limit in any year since 2011. NMFS does not expect the proposed ACL and AM specifications for 2016-17 to result in a change in fishing operations, or other changes to the conduct of the fishery that would result in significant environmental impacts. After considering public comments on the proposed ACL and AMs, NMFS will publish the final specifications.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator for Fisheries has determined that this proposed specification is consistent with the Hawaii FEP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

    This action is exempt from review under Executive Order 12866.

    Certification of Finding of No Significant Impact on Substantial Number of Small Entities

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that these proposed specifications, if adopted, would not have a significant economic impact on a substantial number of small entities. A description of the action, why it is being considered, and the legal basis for it are contained in the preamble to these proposed specifications.

    NMFS proposes to specify an annual catch limit (ACL) of 318,000 lb for Main Hawaiian Islands (MHI) Deep 7 bottomfish for the 2016-17 fishing year, as recommended by the Western Pacific Fishery Management Council (Council). NMFS monitors MHI Deep 7 bottomfish catches based on data provided by commercial fishermen to the State of Hawaii. If and when the fishery is projected to reach this limit, NMFS, as an accountability measure (AM), would close the commercial and non-commercial fisheries for MHI Deep 7 bottomfish for the remainder of the fishing year. The proposed ACL is 8,000 lb less than the ACL NMFS implemented for the 2015-16 fishing year, and 28,000 lb less than the ACL that NMFS implemented for 2011-12, 2012-13, 2013-14, and 2014-15. The AM will remain the same. Over the past five fishing seasons, highest reported annual landings, 309,485 lb, occurred during the 2013-2014 fishing year. NMFS does not expect the fishery to reach the limit during the 2016-17 fishing year, which began September 1, 2016, and ends August 31, 2017.

    This rule would affect participants in the commercial and non-commercial fisheries for MHI Deep 7 bottomfish. During the 2015-16 fishing year, 368 fishermen reported landing 259,530 lb of MHI Deep 7 bottomfish. Based on available information, NMFS has determined that all vessels in the commercial and non-commercial fisheries for MHI Deep 7 bottomfish are small entities under the Small Business Administration's definition of a small entity. That is, they are engaged in the business of fish harvesting, independently owned or operated, not dominant in their field of operation, and have annual gross receipts not in excess of $11 million, the small business size standard for commercial fishing (NAICS Code: 11411). Therefore, there would be no disproportionate economic impacts between large and small entities. Furthermore, there would be no disproportionate economic impacts among the universe of vessels based on gear, home port, or vessel length.

    As for revenues earned by fishermen from MHI Deep 7 bottomfish, State of Hawaii records report 328 of the 368 fishermen sold their MHI Deep 7 bottomfish catch. These 328 individuals sold a combined total of 240,183 lb (92.5 percent of reported catch) at a value of $1,716,313. Based on these revenues, the average price for MHI Deep 7 bottomfish in 2015-16 was approximately $7.15/lb. NMFS assumes that the remaining 40 commercial fishermen either sold no Deep 7 bottomfish or the State of Hawaii reporting program did not capture their sales.

    Assuming the fishery attains the ACL of 318,000 in 2016-17, and using the 2015-16 average price of $7.15/lb, the potential fleet wide revenue during 2016-17 is expected to be $2,273,700 (or approximately $2,103,173 under the assumption that 92.5 percent of catch is sold). If the same number of fishermen sell MHI Deep 7 bottomfish in 2016-17 as in 2015-16, each of these 328 commercial fishermen could potentially sell an average of 970 lb of Deep 7 bottomfish valued at $6,932, if all Deep 7 bottomfish caught were sold. If 92.5 percent of all Deep 7 bottomfish that had been caught had been sold, then these 328 commercial fishermen could potentially sell an average of 897 lb of Deep 7 bottomfish valued at about $6,412.

    In general, the relative importance of MHI bottomfish to commercial participants as a percentage of overall fishing or household income is unknown, as the total suite of fishing and other income-generating activities by individual operations across the year has not been examined.

    In terms of scenarios immediately beyond the 2016-17 fishing year, three possible outcomes may occur. First, in the event that 2016-17 catch does not reach 318,000 lb, the ACL will decrease by 12,000 lb for the 2017-2018 fishing year, as set by the multi-year specification. Second, if the fishery exceeds the ACL for the 2016-17 fishing year, NMFS would reduce the MHI Deep 7 bottomfish ACL for the 2017-18 fishing year by the amount of the overage, in addition to the 12,000 lb reduction for the 2017-18 fishing year. The last possible scenario is one where NMFS would prepare a new stock assessment or update that NMFS and the Council would use to set a new 2017-2018 ACL (without inclusion of any overage, even if catch exceeds ACL for the 2016-17 fishing year), although this is unlikely, since NMFS plans to undertake the next stock assessment in 2018.

    Even though this proposed specification would apply to a substantial number of vessels, i.e., 100 percent of the bottomfish fleet, NMFS does not expect the rule will have a significantly adverse economic impact to individual vessels. Landings information from the past five fishing years, suggest that Deep 7 bottomfish landings are not likely to exceed the ACL proposed for 2016-17. Therefore, pursuant to the Regulatory Flexibility Act, this proposed action would not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 26, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-26323 Filed 10-31-16; 8:45 am] BILLING CODE 3510-22-P
    81 211 Tuesday, November 1, 2016 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request October 27, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by December 1, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Animal and Plant Health Inspection Service

    Title: Tuberculosis.

    OMB Control Number: 0579-0146.

    Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is the primary Federal law governing the protection of animal health. The AHPA is contained in Title X, Subtitle E, Sections 10401-18 of Public Law 107-171, May 13 2002, the Farm Security and Rural Investment Act of 2002. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. Disease prevention is the most effective method for maintaining a healthy animal population and enhancing the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS), Veterinary Services' ability to allow U.S. animal producers to compete in the world market of animal and animal product trade. The APHIS TB regulations in Title 9 Code of Federal Regulation, Part 77, provide for the assignment of State TB risk classifications, the creation of TB risk status zones within the same State, and for the conduct of test before regulated animals are permitted to move interstate.

    Need and Use of the Information: APHIS will collect reports, requests, forms, certificates, plans, MOUs, permits, and records for zoning, testing, and animal movement. Without the information, APHIS would not be able to operate an effective bovine tuberculosis surveillance, containment, and eradication program.

    Description of Respondents: Business or other for-profit; State, Local or Tribal Government.

    Number of Respondents: 4,574.

    Frequency of Responses: Recordkeeping; Reporting: On occasion.

    Total Burden Hours: 29,515.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-26309 Filed 10-31-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2016-0031] National Advisory Committee on Meat and Poultry Inspection AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Notice of the re-establishment of the U.S. Department of Agriculture National Advisory Committee on Meat and Poultry Inspection.

    SUMMARY:

    The U.S. Department of Agriculture (USDA) intends to re-establish the National Advisory Committee on Meat and Poultry Inspection (NACMPI). The purpose of the Committee is to provide advice to the Secretary of Agriculture concerning State and Federal programs with respect to meat, poultry and processed egg products inspection, food safety, and other matters that fall within the scope of the Federal Meat Inspection Act (FMIA), the Poultry Products Inspection Act (PPIA), and the Egg Products Inspection Act (EPIA).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Natasha Williams, Program Specialist, Designated Federal Officer, Office of Outreach, Employee Education and Training, Outreach and Partnership Staff, FSIS, Patriot Plaza III Building, 355 E Street SW., Washington, DC 20024, Telephone: (202)-690-6531, Fax: (202) 690-6519; Email: [email protected]

    SUPPLEMENTARY INFORMATION: Background

    In accordance with the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given that the Secretary of Agriculture intends to re-establish the National Advisory Committee on Meat and Poultry Inspection (NACMPI) for two years. The Committee provides advice and recommendations to the Secretary on meat and poultry inspection programs, pursuant to sections 7(c), 24, 301(a)(3), and 301(c) of the Federal Meat Inspection Act, 21 U.S.C. 607(c), 624, 645, 661(a)(3), and 661(c), and to sections 5(a)(3), 5(c), 8(b), and 11(e) of the Poultry Products Inspection Act, 21 U.S.C. 454(a)(3), 454(c), 457(b), and 460(e).

    A copy of the current charter and other information about the committee can be found at http://www.fsis.usda.gov/wps/portal/fsis/topics/regulations/advisory-committees/nacmpi.

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, Fax: (202) 690-7442, Email: [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Done at Washington, DC, October 25, 2016. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2016-26273 Filed 10-31-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-886] Ferrovanadium From the Republic of Korea: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination and Extension of Provisional Measures AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (“the Department”) preliminarily determines that imports of ferrovanadium from the Republic of Korea (“Korea”) are being, or are likely to be, sold in the United States at less than fair value (“LTFV”). The period of investigation (“POI”) is January 1, 2015, through December 31, 2015. The estimated weighted-average dumping margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Effective November 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Karine Gziryan at (202) 482-4081 or Eli Lovely at (202) 482-1593; AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    The Department published the notice of initiation of this investigation on April 18, 2016.1 For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum that is dated concurrently with this determination and is hereby adopted by this notice.2 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be found at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content.

    1See Ferrovanadium from the Republic of Korea: Initiation of Less-Than-Fair-Value Investigation, 81 FR 24059 (April 18, 2016) (“Initiation Notice”).

    2See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair Value Investigation of Ferrovanadium from the Republic of Korea” (“Preliminary Decision Memorandum”), dated concurrently with this notice.

    Scope of the Investigation

    The product covered by this investigation is ferrovanadium from Korea. For a full description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I of this notice.

    Scope Comments

    The Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., “scope”).3 No interested parties commented on the scope of the investigation, as it appeared in the Initiation Notice.

    3See Initiation Notice, 81 FR 24060.

    Methodology

    The Department is conducting this investigation in accordance with section 731 of the Tariff Act of 1930 (“the Act”). For, Korvan, export prices have been calculated in accordance with section 772(a) of the Act. Normal value (“NV”) has been calculated in accordance with section 773 of the Act. The other two mandatory respondents in this investigation,4 Woojin and Fortune, failed to respond to the Department's questionnaire or otherwise participate in the investigation. Thus, we preliminarily determine to apply facts otherwise available with an adverse inference to these respondents pursuant to sections 776(a) and (b) of the Act. For a full description of the methodology underlying our preliminary determination, see the Preliminary Decision Memorandum.

    4 Korvan Ind. Co., Ltd. (“Korvan”), Woojin Ind. Co., Ltd. (“Woojin”), and Fortune Metallurgical Group Co., Ltd. (“Fortune”) are the mandatory respondents in this investigation.

    All-Others Rate

    Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis dumping margins, and any dumping margins determined entirely under section 776 of the Act. Korvan is the only participating mandatory respondent in this investigation. The Department calculated a company-specific dumping margin for Korvan which is not zero, de minimis or based entirely on facts available. Therefore, for purposes of determining the “all-others” rate and pursuant to section 735(c)(5)(A) of the Act, we are assigning the weighted-average dumping margin calculated for Korvan to all other producers and exporters of the merchandise under consideration.

    Preliminary Determination

    The Department preliminarily determines that the following weighted-average dumping margins exist:

    Exporter/Producer Weighted-
  • average
  • margin
  • %
  • Fortune Metallurgical Group Co., Ltd. 54.69 Korvan Ind. Co., Ltd. 4.48 Woojin Ind. Co., Ltd. 54.69 All-Others 4.48
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we will direct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of ferrovanadium from the Republic of Korea, as described in the scope of the investigation, that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. These suspension of liquidation instructions will remain in effect until further notice.

    Pursuant to section 733(d) of the Act and 19 CFR 351.205(d), we will instruct CBP to require cash deposits equal to the weighted-average amount by which the NV exceeds U.S. price, as indicated in the table above, as follows: (1) The cash deposit for the mandatory respondents listed above will be the respondent-specific weighted-average dumping margin listed for the respondent in the table above; (2) if the exporter is not a mandatory respondent identified above, but the producer is, the cash deposit rate will be the weighted-average dumping margin established for the producer of the subject merchandise; and (3) the rate for all other producers or exporters will be the all others rate listed in the table above.5

    5See Modification of Regulations Regarding the Practice of Accepting Bonds During the Provisional Measures Period in Antidumping and Countervailing Duty Investigations, 76 FR 61042 (October 3, 2011).

    Disclosure and Public Comment

    We intend to disclose the calculations that we performed in this investigation to interested parties in this proceeding within five days after the date of public announcement of the preliminary determination in accordance with 19 CFR 351.224(b). Interested parties are invited to comment on this preliminary determination. Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline for case briefs.6 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities. All documents must be filed electronically by the due date using ACCESS.

    6See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request for a hearing to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. An electronically-filed request for a hearing must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.7 Hearing requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    7See 19 CFR 351.310(c).

    Verification

    As provided in section 782(i) of the Act, we intend to verify the information that will be relied upon in making our final determination.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On September 23, 2016, pursuant to 19 CFR 351.210(e) and (e)(2), Korvan requested that the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.8 Therefore, in accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) Our preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.9

    8See Letter to the Secretary of Commerce from Korvan “Ferrovanadium from the Republic of Korea: Korvan's Request to Extend the Final Determination,” dated September 23, 2016.

    9See also 19 CFR 351.210(e).

    International Trade Commission (“ITC”) Notification

    In accordance with section 733(f) of the Act, we will notify the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: October 25, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The product covered by this investigation is all ferrovanadium regardless of grade (i.e., percentage of contained vanadium), chemistry, form, shape, or size. Ferrovanadium is an alloy of iron and vanadium. Ferrovanadium is classified under Harmonized Tariff Schedule of the United States (HTSUS) item number 7202.92.0000. Although this HTSUS item number is provided for convenience and Customs purposes, the written description of the scope of the investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum: I. Summary II. Background III. Period of Investigation IV. Postponement of Preliminary Determination V. Postponement of Final Determination and Extension of Provisional Measures VI. Scope of the Investigation VII. Scope Comments VIII. Selection of Respondents IX. Discussion of Methodology A. Application of Facts Available B. Corroboration of Secondary Information C. All Others Rate D. Fair Value Comparisons 1. Determination of the Comparison Method 2. Results of the Differential Pricing Analysis E. Date of Sale F. U.S. Price G. Normal Value 1. Comparison-Market Viability 2. Level of Trade 3. Calculation of Normal Value Based on Comparison Market Prices 4. Calculation of NV Based on CV H. Cost of Production 1. Cost Averaging Methodology a. Significance of Cost Changes b. Linkage Between Sales and Cost Sales Information 2. Calculation of COP 3. Test of Comparison Market Sales Prices 4. Results of the COP Test X. Currency Conversion XI. Verification XII. Recommendation
    [FR Doc. 2016-26363 Filed 10-31-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Initiation of Five-Year (“Sunset”) Reviews AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year reviews (“Sunset Reviews”) of the antidumping and countervailing duty (“AD/CVD”) order(s) listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of Institution of Five-Year Review which covers the same order(s).

    DATES:

    Effective Date: (November 1, 2016).

    FOR FURTHER INFORMATION CONTACT:

    The Department official identified in the Initiation of Review section below at AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230. For information from the Commission contact Mary Messer, Office of Investigations, U.S. International Trade Commission at (202) 205-3193.

    SUPPLEMENTARY INFORMATION: Background

    The Department's procedures for the conduct of Sunset Reviews are set forth in its Procedures for Conducting Five-Year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) and 70 FR 62061 (October 28, 2005). Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 14, 2012).

    Initiation of Review

    In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):

    DOC Case No. ITC Case No. Country Product Department contact A-580-815 731-TA-461 Japan Gray Portland Cement and Cement Clinker (4th Review) David Goldberger (202) 482-4136. A-570-822 731-TA-624 PRC Helical Spring Lock Washers (4th Review) David Goldberger (202) 482-4136. A-570-970 731-TA-1179 PRC Multilayered Wood Flooring (1st Review) Matthew Renkey 202-482-2312. C-570-971 701-TA-476 PRC Multilayered Wood Flooring (1st Review) David Goldberger (202) 482-4136. A-580-810 731-TA-540 Republic of Korea Welded ASTM A-312 Stainless Steel Pipe (4th Review) Jaqueline Arrowsmith (202) 482-5255.