Federal Register Vol. 81, No.224,

On December 29, 2014, OPM issued an interim rule at 79 FR 77833, which implemented statutory changes pertaining to veterans' preference. This action was taken to align OPM's regulations with existing statutes. Specifically, the interim rule (1) was issued in response to the Hubbard Act, which establishes a new category of preference for veterans discharged or released from active duty by reason of a sole survivorship discharge; (2) implemented the VOW (Veterans Opportunity to Work) to Hire Heroes Act of 2011, which provides for treatment of certain applicants as veterans or disabled veterans if they have not been separated or discharged from active duty, but submit a certification that they are expected to be discharged or released under honorable conditions within 120 days; (3) referenced the existing requirements for the alternative ranking and selection procedure called “category rating;” and (4) added a reference to the end date of Operation Iraqi Freedom.

During the 60-day comment period between December 29, 2014, and February 27, 2015, OPM received a total of 12 sets of comments, of which 4 were from individuals and 8 were from Federal agencies.

Six agencies sought guidance on corrective actions and remedies for applicants who may have erroneously received veterans' preference after the ending date of Operation Iraqi Freedom. These comments are outside the scope of the rulemaking. OPM notes that corrective actions and remedies are already addressed in the Delegated Examining Operations Handbook (DEOH) and in our guidance pertaining to Variations on the OPM Web site. Remedial actions are also addressed in Interagency Delegated Examining Agreements.

Four agencies asked OPM to amend the rule to extend preference eligibility to any persons who erroneously received preference after the end of Operation Iraqi Freedom, at least until December 29, 2014 (the date of the interim rule). OPM lacks authority to change the end date of Operation Iraqi Freedom or to create a category of veterans' preference that is not prescribed by law.

One agency commented that implementation of the VOW act may delay the hiring process while the hiring agency verifies the service member's character of discharge from the military. This agency believes the veteran has 120 days (from receipt of the veteran's job application) during which he or she can be considered for a federal job, and this 120-day period will extend an agency's time-to-hire. The commenter specifically asked if an agency must now hold a vacancy open until each veteran applicant has been discharged or released from active duty under honorable conditions.

OPM disagrees that implementation of the VOW act will result in delays in the hiring process. The certification letter is a statement that the individual is expected to be separated from active duty in the armed forces under honorable conditions not later than 120 days after the certification statement is submitted as part of the service member's job application package. The certification statement ensures that veterans who are expected to be discharged or released in the near term are not denied their preference in the early stages of the hiring process; agencies are to award such veterans with tentative preference until the job seeking veteran provides his or her DD Form 214 indicating character of service qualifying for preference, prior to appointment.

However, submission of the certification letter does not extend the hiring process. The VOW to Hire Veterans Act of 2011 does not require agencies to hold positions open until every applicant has been discharged or released from active duty or to delay hiring selections.

Four agencies asked OPM to specify the format and contents of a certification letter in greater detail. As described in the supplementary information accompanying the interim rule, the certification letter should be on the letterhead of the appropriate military branch in which the veteran served, and it should specify the veteran's military service dates, the veteran's expected date of release or discharge from active duty service, and the veteran's expected character of service. Commenters requested that OPM also require that the certification be signed by a commanding officer, list the applicants' campaign badges, and list the applicant's final rank, pay grade, and expected type of separation, e.g., retirement, to assist in adjudicating preference eligibility. Because the certification letter is a military document issued by the Armed Forces, OPM is not mandating specific format and content requirements in the final rule. However, we will confer with the Department of Defense and provide more detail in the VetGuide and the Delegated Examining Operations Handbook.

One of these agencies asked how hiring agencies should publicize the contents of the certification letter to applicants. This comment is outside the scope of the rulemaking. However, OPM notes that agencies have the discretion to describe the VOW certification letter contents in their job opportunity announcements, or describe the contents of these letters on the agency's Web site. Agency headquarters human resources offices can circulate information about the certification letter to agency components, delegated examining units, Veterans Employment Program Offices (VEPOs), etc.

One agency suggested that the last sentence of § 211.102(h) be revised to state that before appointment, “the service member's character of service and qualifying discharge or release must be verified through a DD Form 214 or equivalent DD form,” or that OPM provide examples of documents agencies may consider to be the equivalent of a DD Form 214. The current text refers to “equivalent documentation” instead of an “equivalent DD form.” OPM is not adopting this suggestion. The reference to “equivalent documentation” was intended to include documentation such as disability letters issued by the Department of Veterans Affairs, and other official documents issued by a branch of the armed forces which may not be designated as a Department of Defense form but may help a veteran establish his or her entitlement to veterans' preference.

Another agency suggested that OPM require the certification letter to be dated within 120 days of the closing date of the job announcement to which the veteran is applying. OPM cannot adopt this suggestion. The Vow to Hire Veterans Act of 2011 (at 5 U.S.C. 2108a(a)(2) and (b)(2)) specifies that a certification is an expectation that the service member will be “discharged or released from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification” (emphasis supplied).

The same agency asked OPM to clarify how agencies should adjudicate veterans' preference for individuals who submit certification letters showing that the expected date of discharge or release from active duty has already passed. The agency recommended that OPM amend the regulation to treat such “expired” certificates as conclusive evidence that the service member has been discharged or released from active duty under honorable conditions. OPM does not accept this recommendation because the certification expresses only an expectation, and cannot be conclusive evidence that the expected event has in fact occurred.

One agency suggested that OPM add a clause to the final rule which “grandfathers” or grants veterans' preference based on a sole survivorship discharge to individuals who met the requirements of the Hubbard Act prior to the effective date of the interim regulation. (The President signed the Act on August 29, 2008. OPM's interim rule became effective on December 29, 2014). In response, section 211.102(c) of the interim regulation already recognized, as qualifying, discharges or releases from active duty after August 29, 2008 by reason of a sole survivorship discharge. Therefore no additional changes are needed in the final rule to address the agency's comment.

Another agency asked where a sole survivorship discharge would be documented on an individual's Department of Defense (DD) form 214. While this comment is outside the scope of the rulemaking, OPM notes that an individual's sole survivorship discharge may be indicated on the DD-214 in several places: The block pertaining to “character of service,” the section pertaining to “service data,” or the section labeled “remarks.” Individuals receiving sole survivor releases or discharges from their active duty service may have separate documentation which they can submit along with their resumes in order to claim preference.

One individual asked OPM to identify the types of positions classified as scientific and professional positions, for purposes of 5 U.S.C. 3319(b), which states, with respect to category rating, that “[f]or other than scientific and professional positions at GS-9 of the General Schedule (equivalent or higher), qualified preference-eligibles who have a compensable service-connected disability of 10 percent or more shall be listed in the highest quality category.” This comment is outside the scope of the rulemaking. In addition, OPM notes that adopting the recommendation would result in an unnecessarily lengthy listing in the Code of Federal Regulations and would be subject to periodic change. OPM already publishes a list of scientific and professional job series and titles in appendix K of the Delegated Examining Operations Handbook, which is available on OPM's Web site.

The same individual also recommended that we amend the rule to allow certain disabled veterans to “float” (i.e., be listed at the top of a certificate of eligibles under the numerical ranking process, or placed in the highest quality category under the category rating process), even for scientific and professional positions at GS-9 and higher, if they have certain scientific and professional skills. This recommendation is outside the scope of the rulemaking. In addition, OPM cannot adopt this recommendation because it would conflict with statutory requirements in 5 U.S.C. 3313(1) and 3319(b).

Two individuals and one agency expressed their support for and approval of the interim rule. The agency noted that the rule's provision implementing the VOW to Hire Heroes Act of 2011 is consistent with the existing practice of granting “tentative preference” to applicants who have not yet been separated or discharged from active duty.

One agency recommended that OPM amend section 211.102(d)(5) of the interim rule to clarify the retention standing, during a reduction in force, of a Federal employee who is still in a terminal leave status with the military. OPM addressed this in the supplementary information accompanying the interim rule. We stated that veterans' preference does not apply to persons not yet discharged or released from active duty. As a result, such individuals would not receive veterans' preference during a reduction in force.

Four commenters asked whether (or when) OPM would update its implementing guidance pertaining to the provisions in the interim regulation. These comments are outside the scope of the rulemaking. OPM notes in response that it has updated the VetGuide, our Federal Employment Policy Handbook: Veterans and the Civil Service.

One agency recommended that OPM amend the rule to delegate veterans' preference adjudication for the government solely to the Department of Labor or the Department of Veterans Affairs, not to each delegated examining agency, for purposes of quality and consistency. This comment is outside the scope of the rulemaking. Moreover, OPM believes that it would complicate the hiring process if each agency had to refer its veterans preference adjudication decisions to other agencies, and no case has been presented to OPM for designating any particular agency or agencies to conduct consolidated adjudication services.

Another agency suggested OPM remove the second or consecutive occurrence of the word “in” which appears in section 211.102(d)(2), and that we change the word “raking” to “rating” in section 211.102(d)(4). OPM has adopted these suggestions.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that this regulation would not have a significant economic impact on a substantial number of small entities because it affects only Federal employees.

Accordingly, OPM revises part 211 of title 5, Code of Federal Regulations, to read as follows:

This final rule provides eligibility for health insurance coverage under the Federal Employees Health Benefits (FEHB) Program to certain wildfire protection employees and certain intermittent emergency response personnel. The Federal Government has a critical need to hire and quickly deploy qualified firefighters, other fire protection personnel, and certain intermittent emergency response personnel to areas of the country where disasters caused by humans or nature require their services. The Federal agencies that routinely deploy firefighters to respond to these disasters, including the Departments of Agriculture and Interior, have used temporary appointment authorities which provide the flexibility they need to quickly increase their firefighting workforce during wildfire emergencies and then to decrease the workforce when the emergencies are resolved.

Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe the conditions under which employees are eligible to enroll in the FEHB Program and is empowered to include or exclude employees on the basis of the nature and type of their employment or conditions pertaining to their appointments, including the duration of the appointments. This regulation allows agencies to make FEHB coverage offers to these firefighters and fire protection personnel, as well as their families, pursuant to OPM's broad regulatory authority under 5 U.S.C. 8913(b), allowing them to obtain health insurance through their employers on day one of employment.

OPM deems the extension of offers of coverage to be appropriate because firefighters face unique hazards and risks to their health. The day-to-day job of a firefighter involves frequent exposure to environmental risk factors that can precipitate the onset of severe and life-threatening diseases like cancer. See Guidotti TL, Evaluating causality for occupational cancers: the example of firefighters. Occup. Med. (Lond). 2007;57;466-71. The nature of this work necessarily involves intense physical stress that can result in potentially fatal cardiac events, job-related injuries, and an adverse psychological impact. See U.S. Dep't of Homeland Security, U.S. Fire Admin., Fire-Related Firefighter Injuries Reported to NFIRS, Topical Fire Report Series, Vol. 11, Issue 7, February 2011, available at http://www.usfa.fema.gov/downloads/pdf/statistics/v11i7.pdf; Kales SN, Soteriades ES, Christoudias SG, Christiani DC, Firefighters and on-duty deaths from coronary heart disease: a case control study. Environ. Health. 2003; 2(1):14; Carey MG, Al-Zaiti SS, Dean GE, Sessanna L, Finnell DS, Sleep Problems, Depression, Substance Use, Social Bonding, and Quality of Life in Professional Firefighters. J. Occup. Environ. Med. 2011; 53(8):928-33.

Although firefighters are eligible for workers' compensation for injuries suffered on the job, they nonetheless have a heightened need for health insurance coverage, so that they can obtain preventive care and benefit from early detection of the chronic and life-threatening conditions from which they face increased risk, in addition to receiving treatment for illnesses and injuries from which they are currently suffering. Providing firefighters coverage under the FEHB Program acknowledges the unique hazards and increased risks that they face for their Federal service and enhances the quality of their lives by ensuring access to the medical benefits necessary to promote prevention and early intervention, as well as treatment for diseases that cannot be prevented.

In addition, in order to protect the public health and safety, the Departments of Agriculture and Interior have had a critical need over the years for experienced firefighting personnel. The agencies wish not only to recruit experienced firefighters this year, but also to maintain their interest in returning to serve during subsequent fire seasons. Offering health insurance coverage on day one of employment will support these Departments' efforts to recruit and retain qualified firefighters and fire protection personnel for both this year's and future fire seasons. OPM is working closely with the Departments of Agriculture and Interior to ensure firefighters are able to promptly enroll for FEHB coverage with minimal burden.

OPM recognizes that there may be other groups of employees not currently eligible for the FEHB Program because of the nature of their work schedules, but who are similarly situated to firefighting personnel in that they perform emergency response services. Accordingly, OPM has also added a new subsection (i) to its regulations that permits agencies to request that OPM extend FEHB coverage to such employees. OPM intends to construe this subsection narrowly, applying it only to employees engaged in emergency response services similar to the services being performed by those responding to the wildfires, and only when requested by their employing agencies.

On July 19, 2012, OPM issued an interim final regulation to extend eligibility for health insurance coverage and a full Government contribution under the FEHB Program to temporary firefighters and fire protection personnel at 77 FR 42417. In addition, recognizing that there may be other groups of employees not currently covered by the FEHB Program because of the temporary nature of their appointments, the interim rule allowed agencies to request that OPM extend FEHB coverage to similarly situated temporary employees. We also solicited comments from the public regarding whether OPM should explicitly provide FEHB coverage to employees who are appointed pursuant to section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) (“Stafford Act”) to respond to major disasters and emergencies declared by the President.

In the meantime, a major natural disaster, Hurricane Sandy, struck the East Coast of the United States at the end of October 2012. The storm resulted in loss of life and major destruction of property across a wide swath of the Eastern seaboard. In affected areas, 8.5 million people went without power, gasoline was scarce, and massive flooding and cold temperatures increased the hardship on those living in the storm's path. President Obama declared that major disasters had occurred in Connecticut, New York, New Jersey, and Rhode Island, making disaster assistance available to those in the areas heaviest hit by the storm. The President also signed Federal emergency declarations for Connecticut, New York, New Jersey, New Hampshire, Massachusetts, Virginia, West Virginia, Maryland, Pennsylvania, Delaware, Rhode Island, and the District of Columbia.

Federal agencies, including the Federal Emergency Management Agency (FEMA), worked with state and local partners to respond to this emergency. Over 3,000 FEMA employees were immediately deployed to the hardest hit areas. These FEMA workers may have been exposed to dangerous conditions, and put their health and safety at risk in assisting others. Many of FEMA emergency employees continue to work schedules that prevent them from being eligible for FEHB coverage on day one of employment due to OPM's regulations, specifically 5 CFR 890.102(c)(3), 890.102(j)(1), and 890.102(j)(2). Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe the conditions under which employees are eligible to enroll in the FEHB Program. OPM may include or exclude employees on the basis of the nature and type of their employment or conditions pertaining to their appointments, “such as short-term appointment, seasonal or intermittent employment, and employment of like nature.” Id. Intermittent emergency response employees often work in conditions that may expose them to various environmental hazards, similar to the wildland firefighters covered by the regulation described above. In light of the need for agencies to attract and bring emergency workers on board quickly and in recognition of the hazardous conditions those employees often face, OPM concluded in 2012 that its current policy of categorically excluding intermittent employees from FEHB coverage was no longer in the public interest and should be changed. Therefore, on November 14, 2012, OPM issued an interim final regulation at 77 FR 67743 to allow agencies to request FEHB coverage for intermittent employees engaged in emergency response and recovery work as defined by the Stafford Act. Since the publication of that rule, OPM also expanded coverage under the FEHB Program to certain temporary, seasonal and intermittent employees who are expected to work at least 130 hours per calendar month for at least 90 days.

In addition, if OPM grants any such requests, it is reserving the authority to limit FEHB coverage for intermittent employees only to the periods during which they are in a pay status. This would promote parity between intermittent employees and temporary employees like the wildland firefighters, who receive FEHB coverage only when called up for duty. It would also allow OPM the discretion to craft an appropriate approach to health insurance coverage based on the potentially diverse work schedules of intermittent employees.

We have received a number of comments on our two interim final regulations from Federal agencies, an employee association, a trade association of carriers, and a number of individual employees and union members. Most commenters expressed support for the interim final regulations. The following summarizes and responds to the remaining comments:

Comment: In many cases, there is no way to identify positions whose incumbents provide emergency response services for wildland fire protection. The language in Benefits Administration Letter (BAL) 12-203 seems to contradict, and be superior to, that of the rule itself in two important ways. First, in the rule the determination of eligibility is based on identification of positions, whereas in the Letter it is based on duties actually performed. Second, in the rule the determination of eligible positions is made by OPM, whereas in the Letter the determination of eligible duties is made by agencies. Clearly, the only way in which eligibility of militia members may be determined consistent with the rule's intent is by the process articulated in the Letter: By consideration of duties by agencies.

Response: The new rule at 5 CFR 890.102(h) states:

Notwithstanding paragraphs (c)(1) and (2) of this section, an employee who is in a position identified by OPM that provides emergency response services for wildland fire protection is eligible to be enrolled in a health benefits plan under this part.

BAL 12-203 clarifies the intent of the new rule with the following critically relevant statements:

“The following positions [. . .] are covered for purposes of 5 CFR 890.102(h): Any position (including supervisory positions) the duties of which include high risk or life-threatening work to control and extinguish wildland fires, to rescue persons endangered by fire, or to reduce or eliminate potential fire hazards, or involving the provision of direct on-site assistance to others engaged in such work.

“[I]n determining whether to extend health benefits coverage for employees, agencies should focus on the duties performed, regardless of the position's title, occupational series, grade level or geographic location.”

Therefore, there is no conflict between the rule and the BAL. The rule correctly points out that OPM has the ultimate authority to make eligibility determinations while the BAL delegates this authority to the agencies as it does for most FEHB Program eligibility determinations.

Comment: Eligibility should be expanded to other groups.

Response: The commenters believe that expanding the scope of coverage to include other temporary seasonal employees in the final rule is warranted. Since the publication of the interim final regulation, OPM expanded coverage under the FEHB Program to certain temporary, seasonal and intermittent employees. The final regulation is available at 79 FR 62325 and was published October 17, 2014. This regulation allows agencies to provide offers of FEHB coverage to firefighters and emergency response personnel identified by OPM that are not eligible under the FEHB modification rule due to their work schedules.

Comment: Are these new groups eligible for other Federal Benefit Programs?

Response: The regulation does not create eligibility under any other benefit program.

Comment: One trade association of carriers questioned the requirements for eligibility for enrollment under this new authority and felt that they needed clarification to know when to terminate enrollments.

Response: In the FEHB Program, employing offices are responsible for making enrollment and coverage termination decisions. Carriers must process enrollment and termination transactions based on agency determinations as they do today.

OPM has considered these comments and determined that the interim final regulations should be finalized and published with no changes.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only adds additional groups to the list of groups eligible for coverage under the FEHB Program.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.

We have examined this rule in accordance with Executive Order 13132, “Federalism,” and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

Accordingly, OPM is amending 5 CFR part 890 as follows:

On September 28, 2015, Finnoff Aviation applied for a supplemental type certificate for installation of a rechargeable lithium battery in the Model PC-12, PC-12/45, and PC-12/47 airplanes. The Model PC-12, PC-12/45, and PC-12/47 airplanes are single-engine turboprop-powered business aircraft that can accommodate up to nine passengers with a take-off weight up to 10,450 pounds.

The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is issuing this special condition to address (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified Model PC-12, PC-12/45, and PC-12/47 airplanes, and (2) appropriate Instructions for Continued Airworthiness (ICAW) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.

Under the provisions of § 21.101, Finnoff Aviation must show that the Model PC-12, PC-12/45, and PC-12/47 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A78EU 1 or the applicable regulations in effect on the date of application for the change.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the Model PC-12, PC-12/45, and PC-12/47 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model PC-12, PC-12/45, and PC-12/47 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

The Model PC-12, PC-12/45, and PC-12/47 airplanes will incorporate the following novel or unusual design features: Installation of a rechargeable lithium battery as the main or engine start aircraft battery.

Presently, there is limited experience with use of rechargeable lithium batteries and rechargeable lithium battery systems in applications involving commercial aviation. However, other users of this technology, ranging from personal computers, wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with rechargeable lithium batteries. These problems include overcharging, over-discharging, flammability of cell components, cell internal defects, and during exposure to extreme temperatures that are described in the following paragraphs.

1. Overcharging: In general, rechargeable lithium batteries are significantly more susceptible than their Ni-Cd or lead-acid counterparts to thermal runway, which is an internal failure that can result in self-sustaining increases in temperature and pressure. This is especially true for overcharging which causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway due to overcharging increases with increasing battery capacity due to the higher amount of electrolyte in large batteries.

2. Over-discharging: Discharge of some types of lithium battery cells beyond a certain voltage (typically 2.4 volts) can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status, which is a problem shared with Ni-Cd batteries. In addition, over-discharging has the potential to lead to an unsafe condition (creation of dendrites that could result in internal short circuit during the recharging cycle).

3. Flammability of Cell Components: Unlike Ni-Cd and lead-acid batteries, some types of lithium batteries use liquid electrolytes that are flammable. The electrolyte may serve as a source of fuel for an external fire, if there is a breach of the battery container.

4. Cell Internal Defects: The rechargeable lithium batteries and rechargeable battery systems have a history of undetected cell internal defects. These defects may or may not be detected during normal operational evaluation, test, and validation. This may lead to unsafe conditions when operating in service.

5. Extreme Temperatures: Exposure to an extreme temperature environment has the potential to create major hazards. Care must be taken to ensure that the lithium battery remains within the manufacturer's recommended specification.

These problems experienced by users of lithium batteries raise concern about the use of these batteries in commercial aviation. The intent of the special condition is to establish appropriate airworthiness standards for lithium battery installations in the Model PC-12, PC-12/45, and PC-12/47 airplanes and to ensure, as required by §§ 23.1309 and 23.601, that these battery installations are neither hazardous nor unreliable.

In summary, the lithium battery installation will consider the following items:

(a) The flammable fluid fire protection requirement is § 23.863. In the past, this rule was not applied to batteries of normal, utility, acrobatic, and commuter category airplanes since the electrolytes utilized in Ni-Cd and lead-acid batteries are not flammable.

(b) New Instructions for Continuous Airworthiness that include maintenance requirements to ensure that batteries used as spares have been maintained in an appropriate state of charge and installed lithium batteries have been sufficiently charged at appropriate intervals. These instructions must also describe proper repairs, if allowed, and battery part number configuration control.

(c) The applicant must conduct a system safety assessment for the failure condition classification of a failure of the battery charging and monitoring functionality (per Advisory Circular AC 23.1309-1E),2 and develop mitigation to preclude any adverse safety effects. Mitigation may include software, Airborne Electronic Hardware (AEH) or a combination of software and hardware, which should be developed to the appropriate Design Assurance Level(s) (DALs), respectively (per Advisory Circular AC 20-115C 3 and Advisory Circular AC 20-152).4

(d) New requirements, in the special conditions section, address the hazards of overcharging and over-discharging that are unique to lithium batteries, which should be applied to all rechargeable lithium battery and battery installations on the Model PC-12, PC-12/45, and PC-12/47 airplanes in lieu of the requirements of § 23.1353(a)(b)(c)(d)(e), amendment 23-49.

These special conditions are not intended to replace § 23.1353(a)(b)(c)(d)(e) at amendment 23-49 in the certification basis of Model PC-12, PC-12/45, and PC-12/47 airplanes. These special conditions apply only to rechargeable lithium batteries and lithium battery systems and their installations. The requirements of § 25.1353 at amendment 23-49 remains in effect for batteries and battery installations on Model PC-12, PC-12/45, and PC-12/47 airplanes that do not use rechargeable lithium batteries.

Notice of proposed special conditions No. 23-16-02-SC for the Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 Airplanes, Lithium Batteries was published in the Federal Register on August 24, 2016 (81 FR 57810). No comments were received, and the special conditions are adopted as proposed.

The special conditions are applicable to the Model PC-12, PC-12/45, and PC-12/47 airplanes. Should Finnoff Aviation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A78EU 5 to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the certification date for the Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 airplanes is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 airplanes modified by Finnoff Aviation.

1. Installation of Lithium Batteries must show compliance to the following requirements:

(1) Safe cell temperatures and pressures must be maintained during—

i. Normal operations;

ii. Any probable failure conditions of charging or discharging or battery monitoring system;

iii. Any failure of the charging or battery monitoring system not shown to be extremely remote.

(2) The rechargeable lithium battery installation must be designed to preclude explosion or fire in the event of (1)(ii) and (1)(iii) failures.

(3) Design of the rechargeable lithium batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

(4) No explosive or toxic gasses emitted by any rechargeable lithium battery in normal operation or as the result of any failure of the battery charging system, monitoring system, or battery installation which is not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.

(5) Installations of rechargeable lithium batteries must meet the requirements of § 23.863(a) through (d) at amendment 23-34.

(6) No corrosive fluids or gases that may escape from any rechargeable lithium battery may damage surrounding structure or any adjacent systems, equipment, electrical wiring, or the airplane in such a way as to cause a major or more severe failure condition, in accordance with § 23.1309(c) at amendment 23-62 and applicable regulatory guidance.

(7) Each rechargeable lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems that may be caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.

(8) Rechargeable lithium battery installations must have—

i. A system to automatically control the charging rate of the battery to prevent battery overheating and overcharging, or;

ii. A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition, or;

iii. A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.

(9) Any rechargeable lithium battery installation functionally required for safe operation of the airplane must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the State of Charge (SOC) of the batteries has fallen below levels considered acceptable for dispatch of the airplane.

(10) The Instructions for Continued Airworthiness required by § 23.1529 at amendment 23-26 must contain maintenance requirements to assure that the battery has been sufficiently charged at appropriate intervals specified by the battery manufacturer and the equipment manufacturer that contain the rechargeable lithium battery or rechargeable lithium battery system. This is required to ensure that lithium rechargeable batteries and lithium rechargeable battery systems will not degrade below specified ampere-hour levels sufficient to power the aircraft system. The Instructions for Continued Airworthiness must also contain procedures for the maintenance of replacement batteries in spares storage to prevent the installation of batteries that have degraded charge retention ability or other damage due to prolonged storage at a low state of charge. Replacement batteries must be of the same manufacturer and part number as approved by the FAA.

(11) In showing compliance with the proposed special conditions herein, paragraphs (1) through (8), and the RTCA document, Minimum Operational Performance Standards for Rechargeable Lithium Battery Systems, DO-311, may be used. The list of planned DO-311 tests should be documented in the certification or compliance plan and agreed to by the geographic ACO. Alternate methods of compliance other than DO-311 tests must be coordinated with the directorate and geographic ACO.

Background

The Bureau of Industry and Security (BIS), Department of Commerce maintains the Export Administration Regulations (EAR), including the Commerce Control List (CCL). The Export Control Reform Initiative (ECRI), a fundamental reform of the U.S. export control system announced by the President in 2010, has resulted in the transfer to the CCL of military and other items the President determined did not warrant control on the USML, including certain military aircraft, military gas turbine engines, and related items. The USML is part of the International Traffic in Arms Regulations (ITAR) maintained by the Department of State. A core element of the ECRI is regularly streamlining USML categories and adding items that the President determines do not warrant USML control to the CCL. On December 10, 2010, the Department of State provided notice to the public of its intent, pursuant to the ECRI, to revise the USML to create a more “positive list” that describes controlled items using, to the extent possible, objective criteria rather than broad, open-ended, subjective, or design intent-based criteria (see 75 FR 76935). As a practical matter, this meant revising USML categories so that, with some exceptions, the descriptions of defense articles that continued to warrant control under the USML did not use catch-all phrases, such as “specially designed” or “specifically designed or modified,” to control unspecified items. With limited exceptions, the defense articles that warranted control under the USML were those that provided the United States with a critical military or intelligence advantage. All other items were to become subject to the jurisdiction of the EAR and controlled as warranted for various national security, foreign policy, and other reasons. Since that time, the Departments of State and Commerce have jointly published final rules setting forth revisions for fifteen USML categories, each of which has been reorganized into a uniform and more “positive list” structure, and corresponding revisions to the CCL.

All references to the USML in this rule are to the list of defense articles controlled for the purpose of export or temporary import pursuant to the ITAR, and not to the defense articles on the USML that are controlled by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for the purpose of permanent import under its regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the Arms Export Control Act (AECA), all defense articles controlled for export or import are part of the USML under the AECA. The list of defense articles controlled by ATF for the purpose of permanent import is the U.S. Munitions Import List (USMIL). The transfer of defense articles from the ITAR's USML to the EAR's CCL does not affect the list of defense articles controlled on the USMIL.

As part of the ECRI, certain military aircraft and gas turbine engines along with related parts, components, accessories and attachments, materials, software, and technology were added to the CCL on October 15, 2013 (see 78 FR 22660, April 16, 2013). At the same time, the USML was amended by revising Category VIII (Aircraft and Related Articles) and by creating Category XIX (Gas Turbine Engines and Associated Equipment) to describe, for the most part, the defense articles in those categories that remained on the USML in positive, objective terms (see 78 FR 22740, April 16, 2013).

The advantage of revising the USML into a more positive list is that its controls can be tailored to satisfy the national security and foreign policy objectives of the ITAR by maintaining control over those defense articles that provide a critical military or intelligence advantage, or otherwise warrant control under the ITAR, without inadvertently controlling items in normal commercial use or less sensitive military items. This approach, however, requires that both the USML and the CCL be regularly revised and updated to account for technological developments, practical application issues identified by exporters and reexporters, and changes in the military and commercial applications of items affected by the USML and the 600 series Export Control Classification Numbers (ECCNs).

In 2015, the Departments of Defense, State and Commerce reviewed the implementation of these changes to assess the effectiveness and utility of the 2013 amendments. That review included soliciting public comments by the Department of Commerce (see 80 FR 11315, March 2, 2015) and the Department of State (see 80 FR 11314, March 2, 2015).

After an interagency review of those public comments by the Departments of Defense, State, and Commerce, the Departments of Commerce and State published proposed rules to revise treatment of aircraft and gas turbine engines along with related parts, components, accessories and attachments, materials, software, and technology on the USML and the CCL (see 81 FR 6791 and 81 FR 6797, February 9, 2016, for Commerce and State's rules respectively). BIS's proposed rule is referred to in this document as the “February 9 rule.” BIS is publishing this final rule, after an interagency review of the public comments on its proposed rule, simultaneously with a final rule being published by the Department of State.

This rule also furthers the retrospective regulatory review directed by the President in Executive Order 13563.

Comment: One commenter asked BIS to insert text into licenses that the party who will conduct a re-export or transfer is required to inform subsequent parties in the transaction of license terms and conditions. The commenter characterized this as a similar flow-down approach to informing parties that has been incorporated into Directorate of Defense Trade Controls (DDTC) authorizations.

This commenter also recommended that BIS consider clarifying or eliminating the requirement to obtain a letter of assurance in support of technology license applications as set forth in Supplement No. 2 to part 748, paragraph (o)(3)(i). The commenter stated that the requirement in that paragraph to submit the letter to BIS “upon request” combined with the requirement that, if the letter cannot be obtained, to state the reason the letter cannot be obtained in the license application creates ambiguity concerning the requirement.

Response: Although these are constructive proposals, they are outside the scope of the proposed rule. Therefore, BIS is making no changes to the proposed rule in response to these comments, but will consider them as part of other proposed rules to be issued later.

Comment: Four commenters addressed the proposal to replace with a single interpretation in § 770.2 a note that appears in several ECCNs. The note describes when an unfinished product is controlled in an ECCN. One commenter expressed approval of the idea because it centralizes the definition. Another commenter recommended retaining the note in individual ECCNs because doing so would, in the commenter's view, aid classification. A third commenter expressed approval of the idea of one interpretation and asked whether the interpretation's applicability would be limited to 600 series items and asked for clarification of the meaning of the term “clearly identifiable” in the text. The fourth commenter recommended that the applicability of the interpretation be extended to cover all unfinished commodities by removing the reference to the 600 series and that the definition of “material” in the EAR be revised to reference the interpretation.

Response: Although repeating the interpretation in each ECCN to which it applies might be a convenience for some users, doing so would lengthen the EAR and would increase the likelihood of inadvertent omissions or differences in text in the various renditions of the interpretation that would result. The text of this interpretation was adopted from the definition of defense article in § 120.6 of the ITAR, which applies throughout the USML. BIS is unaware of any difficulties that have arisen because the definition is not repeated throughout the USML. BIS believes that stating the interpretation and its scope once is the best way to promote a concise EAR and prevent inadvertent errors or omissions.

The interpretation was originally adopted as a series of notes in 600 series, Product Group A ECCNs so that commodities that were being transferred from the USML to the CCL would be subject to the same standard with respect to coverage of unfinished goods when on the CCL as they had been when on the USML. Because these commodities were previously on the USML, parties to transactions that are subject to the ITAR and the U.S. Government have substantial experience in dealing with the interpretation in connection with the commodities that are now in the 600 series. However, no such experience exists with respect to commodities that are not in the 600 series. To avoid possible unintended consequences, extending the interpretation to items outside the 600 series should not be undertaken without a comprehensive review to determine exactly which ECCNs would be affected and how they would be affected. Additionally, such a change would be outside the scope of what was in the proposed rule.

Although the interpretation does not define the term “clearly identifiable,” its text does provide some guidance. That term applies to unfinished products that “have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as commodities controlled by any Product Group A . . . `600 series' ECCN.” When, based on consideration of its mechanical properties, material composition, geometry, or function, an unfinished product can be recognized readily as a commodity that is controlled in a 600 series, Product Group A ECCN, it is clearly identifiable as that commodity. This term has been used to describe the affected commodities for years when they were controlled on the USML, and BIS is not aware of any confusion on this point.

Finally, the interpretation is intended to identify when an unfinished product is to be treated for export control purposes as it would be treated if finished. It is not intended to apply to raw materials that have not been subjected to any manufacturing processes. To determine whether a raw material not identified on the USML would be controlled on the CCL as such (i.e., before it has been transformed as described above), one would need to review the C group ECCNs in the CCL.

Therefore, BIS is making no changes to the rule in response to this recommendation.

Comment: One commenter stated that under the EAR definition, the “ `range' for . . . [unmanned aerial vehicle (UAV)] systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links or other external constraints.” The commenter suggested this condition be modified or removed to accommodate the increasing commercialization of UAVs. The commenter noted that: “Many potential customers have expressed the desire to purchase UAVs that are capable of remaining on station for extended periods of time, which requires a certain amount of fuel. . . . an aircraft that can fly in circles for hours over an oil pipeline or fishing territory could easily trip the MTCR range thresholds if not for operational restrictions and limitations imposed by telemetry and data links.”

Response: The definition of range to which the commenter refers is adopted from the Missile Technology Control Regime (MTCR) and used in the EAR with respect to items on the MTCR Annex. In accordance with the United States' commitment to the MTCR, BIS would not change that definition unless the MTCR agrees to change the definition on the Annex. Accordingly, BIS is making no changes to the rule in response to this comment.

Comment: One commenter recommended that BIS add the phrase “with no fuel reserve” to technical note .d in the definition of “range” in the EAR to match the definition in note 2 to USML Category VIII(a) in the Department of State proposed rule.

Response: The definition of range in note 2 to USML Category VIII(a) of the Department of State proposed rule, although adopted from the MTCR definition of range, applies to things that are not on the MTCR annex, including certain manned aircraft for which range is one of the criteria that determines whether the aircraft is controlled under USML Category VIII(a). The notion of calculating the range of an aircraft that carries people without including an allowance for fuel reserves to deal with unexpected circumstances or emergencies is sufficiently unusual that the State proposed rule explicitly stated that fuel reserves should not be included when calculating range. By contrast, on the CCL, the term range, when describing how far something can fly, is used only in setting a criterion for the application of the missile technology reason for control and applies only to items controlled on the MTCR Annex, most of which, including unmanned vehicles, do not carry people. Thus, the exact text of the MTCR definition is appropriate. Therefore, BIS is making no changes to the rule in response to this comment.

Comment: One commenter proposed revising the definition of military aircraft in 9A610 Note 1 to apply to aircraft that are specially designed for operation by military end-users and to exclude: Aircraft that are not enumerated in USML Category VIII(a); civil aircraft (commenter's proposed definition in next comment); and aircraft for which the person obtaining airworthiness certification has “knowledge” that the aircraft will be a “civil aircraft” after planned designation in published airworthiness certification lists has been obtained. The note would define military end-users as meaning national armed services (army, navy, marine, air force, or coast guard), as well as national guard and national police, government intelligence or reconnaissance organizations, international military organizations, or irregular military forces or units. The commenter cited uniformity throughout the EAR, commonality of the definition for the CCL with the definition of military end user in part 744, consistency with the ITAR definition of defense services, and clarity with respect to non-military aircraft as the reason for proposing this change.

Response: BIS believes that the definition proposed by this commenter would not be an improvement over the text of the proposed rule. The commenter's proposed standard “specially designed for operation by military end users” would shift the focus from the capabilities of the aircraft to the nature of the intended end users. If adopted, this change would affect ECCNs that are outside the scope of the rule and should not be undertaken without seeking public comment on those changes. Accordingly, BIS is making no changes in response to this comment.

Comment: One commenter recommended adding a note to the definition of “civil aircraft” in EAR part 772 clarifying the meaning of the phrase “legitimate civil, private or business use” to explain which government uses fall within the term “legitimate civil use.” The commenter suggested that activities such as wildlife and environmental aerial survey, forest fire suppression, and public hospital medevac would reasonably be considered “legitimate civil use” of aircraft even if flown by governments. The commenter asserted that, “given the definitions for `military end user' in EAR [sections] 744.9, 744.17, 744.21 and `armed forces' on the DDTC DSP-83, industry would reasonably conclude that a national police helicopter is a `military aircraft' for military uses but that an unarmed city police helicopter with a WA type certificate is a `civil aircraft' put to a `legitimate civil use.' ”

Response: The suggestion would be a substantive change affecting multiple ECCNs outside the scope of the proposed rule. BIS is not adopting it in this final rule.

Comment: One commenter stated that commodities and software “specially designed” for current or planned “civil aircraft” should not be enumerated or described in ECCNs 9x610 or 9x619, even if DDTC controls the “civil aircraft” as a “defense article” because of a single incorporated defense article. For both the EAR and the ITAR, the full complement of “specially designed” items used in or with an aircraft should depend on more than incorporation of a single USML, 600 series, or xA018 commodity into the aircraft. It should also depend on whether the aircraft will be used for a purpose the government deems military, and if not, whether the items are classified in relation to the USML, 600 series, or xA018 commodity.

Response: The commenter's concern is unwarranted because parts, components, accessories, attachments, and software subject to the EAR that are, inter alia, designed for or common to 9A991 civil aircraft or engines in production cannot, pursuant to the release provisions of the EAR's definition of “specially designed,” become controlled under a 600 series ECCN merely because they are also used in an otherwise civil 9A991 aircraft or engine that has been converted to ITAR control by virtue of the provisions in USML Categories VIII(a) or XIX(a).

If a commodity or software is enumerated on the USML or in a 600 series ECCN, it is based on a decision that the commodity or software warrants control as a military item. BIS is making no change to the rule in response to this comment.

Comment: One commenter, referring to L-100 aircraft built prior to 2013, stated that “It is not appropriate to enumerate under ECCN 9A610, which controls military aircraft and related commodities, a “civil aircraft” that has been operated by commercial aircraft operators since the 1960s, has been operated by more than one U.S. commercial airline and has been out of production for nearly a quarter of a century. It would be appropriate to enumerate in 9A610 L-100 aircraft that have been modified for military end users and no longer meet the definition of “civil aircraft.” The commenter stated that BIS has the flexibility to control possible exports, reexports and transfers to undesired recipients in parts 744 and 746.

Response: BIS included L-100 aircraft in ECCN 9A610 to resolve a long history of complex jurisdictional and classification issues. Controlling existing L-100s in ECCN 9A610, but applying the same reasons for control as ECCN 9A991 is consistent with the reasons for control that applied to those aircraft historically under ECCN 9A991. Therefore, BIS is making no changes in the rule in response to this comment.

Comment: One commenter expressed agreement with and appreciation for the clarification of the status of L-100 aircraft and the 501-D22 engine. The commenter noted that the issue has been an ongoing discussion for years. This clarification will help to drive consistency.

Response: BIS agrees.

Comment: One commenter recommended that DDTC and BIS clarify that all non-ship based UAV launching, recovery and landing systems fall under ECCN 9A610.u (or another CCL category) or clarify when to use ECCN 9A610.u and when to use USML Category VIII(h)(5).

Response: To clarify where non-ship based launching, recovery, and landing systems are controlled, this final rule adds the word “runway” to ECCN 9A610.e to make clear that ECCN 9A610.e controls runway-based arresting and systems for all aircraft (whether manned or unmanned) that are controlled by either USML Category VIII(a) or ECCN 9A610.a. Shipboard engagement and arresting systems will continue to be controlled under USML Category VIII(d). Mobile land-based arresting and engagement systems on runways for manned and unmanned aircraft controlled under USML Category VIII(a) or ECCN 9A610.a will be controlled by ECCN 9A610.e. ECCN 9A610.u will control all other non-ship based devices for handling, control, activation, and non-ship-based launching of UAVs or drones controlled by either USML paragraph VIII(a) or ECCN 9A610.a, and capable of a range equal to or greater than 300 km.

This final rule revises ECCN 9A115, which, prior to publication of this rule, referred readers only to the ITAR. The revised text alerts readers that both the ITAR USML Category VIII(d) and ECCN 9A610.e and .u need to be consulted when making jurisdictional and classification determinations regarding such items.

Comment: One commenter noted that the proposed rule incorporated text from a technical note that provides guidance on the meaning of the term “ground equipment” into the regulatory text of 9A610.f. The commenter noted that the word “includes,” which was in the technical note was omitted from proposed paragraph .f. This omission, the commenter noted, effectively narrowed the scope of the control from all ground equipment to only ground equipment for pressure refueling or to facilitate operation in confined areas. The commenter stated that, if such was the intent, the word “other” should be removed from the phrase “Pressure refueling equipment and other ground equipment designed to facilitate operations in confined areas.”

Response: BIS agrees with the commenter's interpretation. This final rule revises the text of paragraph .f to make clear that it applies only to pressure refueling equipment and equipment that facilitates operations in confined areas that are specially designed for military aircraft, i.e., aircraft controlled in USML Category VIII(a) or ECCN 9A610.a.

Comment: One commenter noted that the proposed rule would make application of the national security and regional stability reasons for control for parts covered by ECCN 9A610.x dependent on the end use. The commenter stated that this would cause significant difficulties for compliance automation. The commenter noted that end use controls normally follow separate logic from CCL controls. Another commenter recommended that parts for L-100 aircraft should be controlled in 9A991.d. to eliminate confusion when all reasons of control are the same. The commenter stated that the proposed change leaves confusion on when a 9A610.x part requires NS and RS control.

Response: The first commenter's perception that, in most instances, the EAR treats end-use based license requirements separately from CCL-based license requirements is correct. Only in a few instances is end use a factor to be considered in determining CCL-based license requirements. This rule creates an additional such instance with respect to aircraft parts that are common to C-130 aircraft and L-100 aircraft that were manufactured prior to 2013. If such parts are being exported or reexported to be installed in a C-130, the national security (NS 1) and regional stability (RS 1) reasons for control apply in addition to the anti-terrorism and United Nations embargo reasons for control. If the parts are being exported or reexported to be installed in an L-100 built prior to 2013, only the antiterrorism and United Nations embargo reasons for control apply. The proposed rule created this structure to maintain the level of control that C-130 parts had before moving from the USML to the CCL and to retain the level of control that applied to L-100s and their parts when controlled under ECCN 9A991. BIS acknowledges that the structure is somewhat awkward but believes that it is less awkward than classifying these parts under two entirely different ECCNs (9A610 and 9A991) depending on which aircraft will use them. Given the small number of L-100s still in use (in its comment on the proposed rule, the manufacturer stated that it produced more than 100 L-100s from 1965 to 1992 and that more than 50 were still in operation), BIS believes that any problems with classification are likely to be small and are likely to diminish as existing L-100s are retired from service. Accordingly, BIS is making no change to the rule in response to these comments.

Comment: One commenter recommended that the phrase “not elsewhere specified on the USML, in 9A610.y, or 3A611.y,” which appeared in the text of ECCN 9A610.x in the proposed rule be changed to read “not elsewhere specified on the USML or in another 600 series entry.” The commenter stated that this change would bring 9A610.x into line with Supplement No. 4 to part 774—Commerce Control List Order of Review.

Response: BIS believes that ECCN 9A610.x is consistent with Supplement No. 4 to Part 774—Commerce Control List Order of Review without the change suggested by this commenter. The order of review provides for checking the USML before checking the CCL, checking 600 series ECCNs and ECCNs ending with the numerals “515” before checking other ECCNs, and within an ECCN, checking paragraphs that specifically enumerate the items they cover before checking paragraphs that describe the items they cover by a general description. The reference to 9A610.y in 9A610.x serves as a reminder to check the .y paragraph (which specifically enumerates the items that it covers) before concluding that an item is controlled under 9A610.x. This reminder is useful because the paragraphs that precede paragraph .x all specifically enumerate the items that they cover whereas 9A610.x covers specially designed parts, but not specifically enumerated parts, for military aircraft. Readers who review the paragraphs in alphabetical order might erroneously conclude when they reach paragraph .x that no additional paragraphs that specifically enumerate the items that they control follow. The reference to ECCN 3A611.y serves a similar function because parts, components, accessories, and attachments enumerated in that paragraph might be specially designed for any 600 series ECCN. Although it is true that ECCN 9A610.x does not control parts, components, accessories, or attachments for items in other ECCNs, this fact is true for ECCNs generally. BIS does not believe that an additional reference is needed to make this point and is making no change to the rule in response to this comment.

Comment: One commenter stated that the effect on product classification of coating an aircraft part with a material controlled in USML Category XIII(j)(2) needed to be clarified. The commenter expressed a belief that DDTC has taken the position that the part is classified under USML Category XIII(j)(2) if any property of the material can be discerned after its application to the part is complete. The commenter stated that this interpretation can convert otherwise ECCN 9A610.x parts into ITAR-controlled and, in some instances, significant military equipment. Such an interpretation would create significant compliance and classification difficulties because, for example, the same part could have two different jurisdictional statuses. The commenter recommended that DDTC publish an interpretation confirming that XIII(j)(2) controls materials, not parts or components, and that BIS revise 9A610 to reinforce this point.

Response: The issues raised by this comment potentially apply not only to ECCN 9A610, but also to ECCNs that are outside the scope of this rule. In October 2015, the Department of State and BIS published notices of inquiry seeking comments on, inter alia, items controlled in USML Category XIII and related ECCNs (see 80 FR 61137 and 80 FR 61138). This commenter made a similar comment in response to the Department of State notice. Both agencies are now planning proposed rules dealing with USML Category XIII and related ECCNs as part of the ECRI's planned regular review of USML categories and their regular controls on the CCL. BIS believes that proposed rule will be a more appropriate vehicle for comprehensively addressing the issue raised by this commenter. Therefore, BIS is making no changes to this rule in response to this comment.

Comment: One commenter stated that moving items such as “specially designed” switches between various 600 series .y lists over time creates considerable labor for industry without any corresponding change in licensing policy. The commenter recommended that if an item is enumerated in 9A610.y or 9A619.y and has an equivalent enumeration in 3A611.y, then either ECCN could be allowed. This would allow appropriate policy treatment of the item without creating an undue burden on industry.

Response: ECCN 3A611 is the military electronics ECCN. Its .y paragraph applies the specific parts listed therein if “`specially designed' for a commodity subject to control in a `600 series' ECCN or a defense article and not elsewhere specified in any `600 series' ECCN or the USML . . . ” (emphasis added). Because all .y paragraphs in the 600 series are subject to the same level of control, the commenter's proposal would simplify classification without compromising any of the reasons for imposing likening requirements on 600 series .y items. Accordingly this rule revises paragraph .y in ECCN 3A611 to allow, but not require, commodities enumerated in that paragraph or in other .y paragraphs to be classified either under 3A611.y or the other .y paragraph by revising the italicized phrase noted above to read “not elsewhere specified in any paragraph other than the .y paragraph of a `600 series' ECCN”.

To avoid an inconsistent treatment of the similarly structured .x to the .y paragraphs, the same change is being made to 3A611.x. This will not only be logically consistent with the changes made to .y, it will also simplify classification of unspecified parts and components specially designed for one 600 series item that are likely later to be used on other 600 series items. Because the licensing and control policies for all .x items are the same, the changes will not compromise any of the reasons for imposing licensing requirements on 600 series .x items. In addition, the changes will not require any party to alter the existing classification of any item. Accordingly, this final rule makes a similar revision to ECCN 3A611.x. To highlight and clarify this conforming change, a Note 3 is added to 3A611.x stating that “parts,” “components,” “accessories,” and “attachments” subject to the EAR and within the scope of any 600 series .x entry that are of a type that are or would potentially be for use in or with multiple platforms (e.g., military electronics, military vehicles, and military aircraft) may be classified under 3A611.x for the sake of convenience.

Comment: One commenter recommended that parts identified in 9A610.y or 9A619.y but unique to USML Categories XIX(f)(1) listed engines and VIII(h)(1) listed aircraft should be excluded from the ITAR and covered by the .y paragraph because they are not critical to national security.

Response: This commenter expressed the same idea in its comments on the Department of State proposed rule. Readers may check the Department of State final rule for its explanation of its decision not to remove these parts from the USML. Because these parts remain on the USML, they may not be included in a 600 series ECCN.

Comment: One commenter recommended that the final subparagraph numbers be dropped from the .y paragraphs of ECCN 9A610 and 9A619. The commenter stated that doing so would eliminate unnecessary reclassification efforts and allow flexibility to accommodate future changes. The commenter stated that it has to reclassify thousands of parts when a .y subparagraph number changes even though the license requirements remain the same.

Response: BIS believes that including the final subparagraph designator in the .y paragraphs is essential to maintaining the structure of the CCL and is making no change in response to this comment.

Comment: Several commenters questioned whether the word “fluid” refers to liquids only or to liquids and gases when used in ECCNs 9A610.y.8, .y.10 and .y.32 and in 9A619.y.3, .y.4, and .y.8. Others said the term should encompass both liquids. Commenters pointed out that in physics and engineering, “fluid” refers to substances with no fixed shape that generally take the shape of their container and that yield readily to external pressure. That definition encompasses liquids and gases.

Response: BIS agrees that for purposes of the .y paragraphs on the CCL, including in ECCNs 9A610 and 9A619, the term “fluid” should encompass both liquids and gases. This final rule adds a related definition to both ECCNs so stating. The entries do not control fluids because the scope of the controls is limited to “parts,” “components,” “accessories,” “attachments,” and other commodities, which, by definition, are not fluids. The definition of “fluids” is nonetheless necessary to know when determining the classification status of the commodities identified in .y and any other entry involving controlled commodities that contain fluids.

Comment: One commenter recommended removing the word “fluid” from proposed ECCNs 9A610.y.8, which applies to fluid filters and filter assemblies and 9A619.y.4, which applies to fluid hoses, straight and unbent lines, fittings, couplings, clamps and brackets, so that they do not limit “.y” controls to “fluid” filters and assemblies because “pneumatic” filters and assemblies are of same or lesser technology and should enjoy “AT” only controls as well.

Response: BIS believes that its confirmation that the definition of “fluid” includes both liquids and gases addresses the concern expressed in this comment. Therefore, this final retains the adjective “fluid.”

Comment: One commenter recommended adding a new paragraph 3A611.y.36 for “clamps and brackets (including block clamps also called line blocks, tube supports, or fairlead blocks) for wire harnesses, conduit, fluid or pneumatic hoses, lines, tubes, or pipes.” The commenter noted that the same “specially designed” clamps and brackets could be used for wire harnesses, conduit, pipes, pneumatic lines or tubes as well as on both aircraft and engine. The commenter stated that because these commodities are basic, commonly used in multiple 600 series and other items, they do not warrant national security controls and should thus be in 3A611.y if specially designed not for a defense article or 600 series item. The commenter suggested that, as an alternative, these commodities would be appropriate for inclusion in the (b)(2) release within the “specially designed” definition.

Response: ECCN 3A611.y is unique among 600 series .y paragraphs in that it applies to commodities subject to the EAR named therein if the commodity is specially designed for an ITAR controlled defense article or any 600 series item, not just those in ECCN 3A611. As noted above, this final rule expands the scope of ECCN 3A611.y so that parties may classify a commodity under 3A611.y if it is described in both 3A611.y and the .y paragraph of some other ECCN. Thus adopting the commenter's proposal to add clamps and brackets (including block clamps also called line blocks, tube supports, or fairlead blocks) for wire harnesses, conduit, fluid or pneumatic hoses, lines, tubes, or pipes to ECCN 3A611.y would have the effect of making all such items in any 600 series ECCN controlled under 3A611.y unless enumerated in some other 600 series ECCN or on the USML. BIS is not adopting this proposal because doing so would remove license requirements for commodities that are unrelated to military aircraft and military gas turbine engines and, thus, outside the scope of this rule. In addition, the commenter is, in effect, asserting that all “clamps and brackets” used for any purpose on any 600 series commodity and on many ITAR defense articles have the same level of sensitivity. Without specific evidence that such is the case, BIS is not yet willing to make such a sweeping broadening of ECCN 3A611.y

Comment: One commenter recommended adding a new paragraph 9A610.y.33 and revising 9A619.y.5 to cover “Clamps for hoses, lines, tubes and wires.” The commenter stated that this change would make clear that all clamps are controlled at the .y level whereas the placement in 9A610.y.10 in the proposed rule implied that only clamps for fluid lines were controlled at that the .y level. The commenter stated that this change would align aircraft clamps in ECCN 9A610.y.33 with engine clamps in ECCN 9A619.y.5.

Response: BIS is making no changes to ECCN 9A610.y in response to this comment. However, for reasons described below, this final rule revises 9A619.y.5 to apply to gas turbine engine clamps of all types. Such a change is not warranted for aircraft clamps controlled in ECCN 9A610 because some such clamps carry significant loads and should be subject the reasons for control that apply to ECCN 9A610.x. Clamps for engines generally do not carry such loads. Therefore, this rule limits the applicability of ECCN 9A610.y.10 to clamps for commodities in that entry or defense articles in USML Category VIII. This final rule also limits the applicability of ECCN 9A619.y to clamps for commodities in that entry and defense articles in USML Category XIX.

Comment: One commenter noted that the proposed rule would move certain clamps from 9A619.y.5 to 9A619.y.3, a move that would require re-classification of a large number of clamps for no technical advantage. The proposed rule also would have added check valves to ECCN 9A619.y.5. The commenter stated that because “check valves” are new to ECCN 9A619.y, it would be better to move them to a new entry (ECCN 9A619.y.9) rather than displace clamps from 9A619.y.5.

Response: BIS agrees with the commenter. As proposed, the rule would have caused unnecessary reclassifications. Therefore, this final rule places clamps of all types in 9A619.y.5 and check valves for fluid systems in 9A619.y.9.

Comment: One commenter recommended replacing proposed ECCN 9A619.y.2 (Oil lines and tubes) and ECCN 9A619.y.3 (Fluid hoses, straight and unbent lines, fittings, couplings clamps and brackets) with one paragraph for “fluid lines, tubes, and hoses, and related fittings of all types” and another paragraph for clamps and brackets. The commenter's reason noted that the proposed rule assigned higher control to certain items such as bent lines when related to fluids other than oil, while allowing .y benefits to all lines (straight or bent) when related to oil (see proposed 9A619.y.3 vs 9A619.y.2). The commenter also noted that the proposed rule would remove a particular set of clamp types, namely V-band, cushion, broomstick, hinged and loop clamps, that currently are in ECCN 9A619.y.5 and would add unspecified clamps to 9A619.y.3, creating a new ambiguity. The commenter asserted that it is not clear whether the clamps from the previous 9A619.y.5 that are not for fluid lines now are covered by 9A619.x, or whether all clamps are now to be covered by 9A619.y.3.

Response: As noted above, this final rule includes a paragraph designated .y.5 for clamps of all types in ECCN 9A619. The absence of any modifiers in that paragraph signifies that the paragraph applies to clamps of all types that are specially designed for commodities in ECCNs 9A619 or USML Category XIX and not elsewhere specified on the USML or CCL. This final rule also removes the adjectives “straight” and “unbent” from the proposed text of ECCN 9A619.y.3. This proposed rule does not remove those adjectives from ECCN 9A610.y.10 because some of the aircraft fluid lines must withstand high internal pressure levels when configured in the shape that will be used in the aircraft. Fluid lines used in engines generally do not need to withstand very high pressures.

Comment: Several commenters recommended removing “shims” from proposed ECCN 9A619.y.6 and explicitly mentioning shims in paragraph (b)(2) of the definition of “specially designed,” found in § 772.1 of the EAR. Paragraph (b)(2) identifies several items that are excluded from the definition and, thus, from any ECCN paragraph that includes the term “specially designed” as a control parameter. The commenters noted that “spacers” are currently in paragraph (b)(2). One commenter asserted that shims are a type of spacer. Another commenter noted that shims are used to align parts, make them fit, or reduce wear. The commenter said that these functions are also performed by washers, spacers, and bushings, which are already identified in paragraph (b)(2) of the specially designed definition. Because of this equivalency of function, including shims in 9A619.y.6 causes confusion. One commenter recommended that if shims are retained in a .y paragraph they should be clearly differentiated from spacers. One commenter asserted that shims are by definition spacers and meet the release criteria in the definition of specially designed, but recommended that the release be made specific, by adding shims to paragraph (b)(2).

Response: Although many shims are simple spacing devices, some shims that are used in military gas turbine engines have particular characteristics that warrant control albeit at the .y level. Therefore, BIS is not making any changes to the rule in response to this comment.

Comment: One commenter recommended that identification plates, fluid hoses, straight and unbent lines, fittings, couplings, clamps brackets and cockpit or cabin mirrors should be released from the specially designed definition because they do not contain any military functionality or performance.

Response: Releasing a part from the specially designed definition would, in many cases, remove that part from all coverage on the CCL regardless of the end item into which that part is incorporated. In the case of 600 series items, doing so would remove all U.S. government visibility into the export or reexport of the released parts in connection with military related items, not just the items that are the subject of this rule. Such an action would be beyond the scope of the proposed rule. Accordingly, BIS is making no changes in response to this comment.

Comment: One commenter proposed replacing the phrase “Fluid hoses, straight and unbent lines, fittings, couplings, clamps and brackets” with “Fluid lines, tubes, and hoses, and fittings, couplings and mounting brackets thereof” in ECCN 9A610.y.10.

The same commenter also proposed removing the text of proposed 9A619.y.2 and revising the text of 9A619.y.3 to read the same as commenter's proposed text for ECCN 9A610.y.10, i.e., “Fluid lines, tubes, and hoses, and fittings, couplings and mounting brackets thereof.”

The commenter noted that the proposed revision would clarify that hoses and lines are for fluid and that any couplings, fitting or brackets are specific to those lines or hoses. The commenter stated that the current “. y” entries for engine and aircraft lines are inconsistent. Parts common to the airframe and engine should be treated at the same level of control. The current and proposed text of 9A619.y.2 “Oil lines and hoses” could be removed as unnecessary.

Response: BIS agrees with the commenter that adding a qualifier to ECCNs 9A610.y.10 and 9A619.y.3 would clarify the meaning of those paragraphs and this final rule adds the word “therefor” at the end of those paragraphs. This final rule does not make any other change to the proposed rule text of ECCN 9A610.y.10. This final rule does, however, make two changes ECCN 9A619.y.3, from what was proposed in the February 9 rule: It removes the terms “straight and unbent” and “clamps.” The term “straight and unbent” is removed because gas turbine engine fluid lines are typically low to moderate pressure lines that do not warrant control under 9A610.x or 9A619.x. whereas fluid lines used elsewhere in aircraft may be required to contain very high pressures after being bent or formed into their final shape and do warrant control under ECCN 9A610.x Accordingly, this final rule limits the applicability of ECCN 9A610.y to lines for commodities in that entry or defense articles in USML Category VIII. This final rule also limits the applicability of ECCN 9A619.y to lines for commodities in that entry and defense articles in 9A619.y and USML Category XIX.

Comment: One commenter suggested deleting the phrase “cockpit or cabin” from the description of “aircraft mirrors” in ECCN 9A610.y.10 because the technology for mirrors does not change.

Response: BIS is making no changes to the rule in response to this comment. BIS construes cockpit and cabin as used in ECCN 9A610.y.10 to encompass all areas of the aircraft to which the crew has access while in flight. BIS believes that further clarification is not needed.

Comment: One commenter recommended removing and reserving 9A610.y.23 (filtered and unfiltered panel knobs) and .y.31 (identification plates) along with 9A619.y.7 (identification plates) because they are duplicates to entries in 3A611.y.

Response: ECCN 3A611.y.33 controls identification plates and nameplates, .y.21 controls filtered and unfiltered mechanical switches, and .y.34 controls knobs. As noted above, this final rule revises ECCN 3A611.y to allow commodities that are controlled in 3A611.y and in another ECCN .y paragraph to be classified under 3A611.y. Removing and reserving the ECCN 9A610 and 9A619 paragraphs suggested by this commenter would have the effect of making this optional procedure mandatory—likely compelling some parties to reclassify existing parts. In addition, removing ECCN 9A610.y.23—filtered and unfiltered panel knobs, indicators, switches, buttons, and dials and, in effect replacing it with ECCN 3A611.y.21—filtered and unfiltered mechanical switches and .y.34—knobs would change the scope of items covered. Therefore, this final rule does not remove and reserve any paragraph of ECCNs 9A610 or 9A619. However, BIS agrees that the scope of ECCN 3A611.y.33 (identification plates and nameplates) should be identical with ECCNs 9A610.y.31 and 9A619.y.7, which were proposed in the February 9 rule as identification plates. Therefore, this final rule adds nameplates to ECCNs 9A610.y.31 and 9A619.y.7.

Comment: One commenter stated that identification plates do not merit control in the 600 series unless they convey “technology” or “technical data” and recommended that ECCNs 9A610.y.31 and 9A619.y.7 be revised to control only identification plates that convey “technology” or “technical data.”

Response: Increasingly identification plates for defense articles are required to contain codes linking the plate with on-line technical data. Therefore, this final rule does not make any changes in response to this comment.

Comment: One commenter stated that marine gas turbine engines are not covered by CCL Category 9. The commenter recommended that marine gas turbine engines be added to ECCN 9A991.c by removing the word “Aero” or creating a new ECCN in Category 9. The commenter noted that USML Category XIX applies to all gas turbine engines and CCL Category 9 does not.

Response: Some marine gas turbine engines were controlled in ECCN 9A002 at the time the proposed rule was published and continue to be controlled in that ECCN. Marine gas turbine engines not controlled in ECCN 9A002 are EAR99. Therefore, BIS did not follow the commenter's suggestion to list marine gas turbine engines in ECCN 9A991. However, BIS agrees that more fully specifying where and how marine gas turbine engines are controlled under the EAR is desirable. To that end, this rule adds a related control note to ECCN 8A992 informing readers that marine gas turbine engines are not controlled in paragraph .g of ECCN 8A992. Rather, such engines may be controlled in ECCNs 9A002 or 9A619.a or may be designated EAR99. Paragraph .g of ECCN 8A992 controls certain inboard and outboard marine engines other than gas turbine engines.

Comment: One commenter stated that the word “equipment” should be removed from the related controls paragraphs in ECCNs 9B610 and 9B619 to be consistent with the removal of that word from USML Categories VIII(h) and XIX(f) in the State Department's proposed rule.

Response: BIS agrees and this final rule makes those changes.

Comment: One commenter suggested that the reference in ECCN 9B610 to Category VIII(h) paragraphs (2)-(26) should to be revised to read paragraphs (2)-(30) and that the reference in ECCN 9B619 to Category XIX(f) paragraphs (2)-(7) should to be revised to read paragraphs (2)-(17) to be consistent with the addition of paragraphs (h)(27) through (h)(30) and (f)(8) though (f)(12) in the DDTC proposed rule.

Response: BIS agrees. However, the paragraph numbering in Categories VIII(h) and XIX(f) have changed from what was in the proposed rule. In this final rule, the related control note in 9B610 refers to USML Category VIII(h) paragraphs (2)-(28) and the related control note in 9B619 refers to Category XIX(f) paragraphs (2)-(11) to be consistent with the Department of State final rule.

Comment: ECCN 9C610 controls materials specially designed for commodities controlled in ECCN 9A610. The proposed rule would have added materials specially designed for commodities controlled in USML Category VIII. ECCN 9C619 controls materials specially designed for commodities controlled in ECCN 9A619. The proposed rule would have added materials specially designed for commodities controlled in USML Category XIX.

One commenter stated that the proposed change could cause materials developed decades ago and that are in widespread commercial use to be controlled as military items because companies may not be able to definitively prove that these materials were not developed to have properties peculiarly responsible for achieving or exceeding the performance levels, characteristics, or functions in the relevant ECCN or USML paragraph. The commenter cited Alloy 454, DS 1000 and yttrium oxide stabilized zirconium oxide as examples of such materials. This commenter made a similar comment regarding USML Category XIX in the Department of State proposed rule. The commenter asserted that paragraphs (f)(13) through (15) in that category would place on the USML materials that are currently controlled in ECCN 9A619 or even materials that are EAR99.

Response: BIS does not believe the changes proposed in this comment are necessary because ECCNs 9C610 and 9C619 already contain notes stating: “Materials enumerated elsewhere in the CCL . . . are controlled pursuant to controls of the applicable ECCN.” In addition, this final rule includes a new paragraph .b of ECCN 9C619 to reference the materials proposed by the Department of State in USML Category XIX(f)(13) through (15). This final rule also adds a new note 3 to ECCN 9C619, which provides that materials that are used in engines that are or have been in production and are not enumerated or otherwise described on the USML or ECCN 9A619 are not subject to ECCN 9C619. To avoid confusion, this final rule makes clear that existing note 2 to ECCN 9C619, which states that materials used in engines controlled in USML Category XIX and ECCN 9A619 are controlled in ECCN 9C619, applies only to materials described in paragraph .a of that entry.

This rule also adds technology for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of materials controlled in ECCN 9C619.b to ECCN 9E619.b, which imposes the national security (NS Column 1), regional stability (RS Column 1), antiterrorism (AT Column 1) and United Nations embargo reasons for control on the technology and limits use of License Exception STA to “build to print” technology.

Comment: One commenter questioned the criteria in Category VIII(a)(14) of the Department of State proposed rule, which applies to certain cargo and transport aircraft. The commenter noted that L-100 aircraft manufactured prior to 2013 were expressly excluded from Category VIII(a)(14) and expressly included in ECCN 9A610.b even though the L-100 is just as capable as the LM-100J in carrying payloads over 35,000 lbs. to ranges over 2,000 nautical miles with the same roll-on/roll-off and landing/takeoff capability. The commenter suggested that similar treatment would be appropriate for the planned but not yet produced LM-100J. The commenter stated that the LM-100J is a modern version of the L-100. The commenter questioned whether the criteria of a roll-on/roll-off ramp, range, payload and ability to land on short or unimproved airfields are appropriate for distinguishing military from civil cargo aircraft and pointed out that the L-100 is capable of meeting those criteria, but would be controlled on the CCL under the proposed rules. The commenter cited several potential civil end uses including: “heavy equipment and fuel delivery; firefighting and search & rescue.” The commenter also noted that certain military related items do not appear on the LM-100J but do appear on the military C-130J from which it is derived. Those items relate to radar, communications, protection from ground fire, and paratroop operations.

Response: The criteria of a roll-on/roll-off ramp, range, payload and ability to land on short or unimproved airfields are valuable military capabilities that enable supplying troops operating in areas that lack modern infrastructure. As noted above, the classification of L-100s manufactured prior to 2013 under ECCN 9A610.b was a measure adopted to promote consistency with prior classifications of a small number of airplanes, all of which are more than 20 years old. The LM-100J is a new design, derived from the C-130J that incorporates many modern features common to both aircraft.

To resolve the LM-100J classification issues while still maintaining an appropriate level of control over the export of such aircraft, this final rule revises the Note 1 in ECCN 9A610 to expressly include the LM-100J in paragraph .a, thereby treating it as a 600 series military aircraft. The Department of State final rule explicitly excludes the LM-100J from Category VIII(a)(14). This classification will retain the license requirement for all destinations except Canada and, like all other aircraft controlled under ECCN 9A610.a, License Exception STA will not be available for the LM-100J aircraft unless such use is approved pursuant to the procedures set forth in § 740.20(g) of the EAR.

Comment: The proposed rule would have removed related control note number 2 from ECCN 9E619. That note reads: “Technology described in ECCN 9E003 is controlled by that ECCN.” BIS made this proposal because of concerns that including that non-600 series ECCN might mislead readers into thinking that the order of review might not apply in this instance. One commenter expressed approval of this change stating that it “will simplify the Order of Review analysis.” Further, the commenter believed that the change will have no significant impact on licensing requirements because the technologies of concern in ECCN 9E003 are mirrored in ECCN 9E619.c, which has similar licensing requirements.

Response: BIS agrees and the final rule adopts the removal of that text.

Comment: In the Department of State proposed rule, USML category VIII(h)(7) read: “Damage or failure-adaptive flight control systems, that do not consist solely of redundant internal circuitry, specially designed for aircraft controlled in [Category VIII of the USML] . . . and specially designed parts and components therefor.” One commenter on that rule stated that the phrase “specially designed parts and components therefor” would effectively re-control on the USML parts that had previously been moved to ECCN 9A610.x.

Response: The Department of State agreed and its final rule removes the phrase “specially designed parts and components therefor” from Category VIII(h)(7). As a result, BIS retains control of such parts and components controlled in ECCN 9A610.x. The technology for the development or production of such parts and components is retained under ECCN 9E610. However, this rule revises ECCN 9E610 because of the sensitivity of the technology for the development or production of those parts and components. This final rule makes 9E610 technology (other than “build-to-print” technology) required for either the “development” or “production” of “specially designed” parts or components controlled in 9A610.x for damage or failure-adaptive flight control systems controlled in USML Category VIII(h)(7) ineligible for License Exception STA. Currently the technology required for the “development” and “production” of “specially designed” parts or components controlled in 9A610.x or failure-adaptive flight control systems controlled in Category VIII(h)(7) of the USML is controlled in ECCN 9E610.a. Upon its effective date, this rule will specifically enumerate that technology in ECCN 9E610.b, limiting its STA eligibility to “build to print” technology.

Comment: Two commenters proposed that a transition plan be published. One commenter noted that implementing the proposed changes would require resources and effort and noted that a transition period would not only permit US applicants to submit the appropriate ITAR export authorizations, but also allow foreign companies to request authorizations from the US applicants. The other commenter recommended one year to implement regulatory changes. It stated that one year will be needed because of the volume of items that will have to be reclassified. This commenter also recommended a three-year period during which EAR licenses, license exceptions and NLR may be used for items moving from the EAR to the ITAR.

Response: The Department of State will be publishing a transition plan.

This rule also updates the text of ECCN 9A610.w to reflect amendments made to that paragraph since the February 9 rule was published by adding references to “pneumatic” and “fly-by-light” flight control systems (see 81 FR 19026, April 4, 2016). These additions were made to align the descriptions in ECCN 9A610.w with the description of such systems in the current Equipment, Software And Technology Annex of the MTCR.

Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016) has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This final rule would affect one approved collection: Simplified Network Application Processing + System (control number 0694-0088), which includes, among other things, license applications. This collection carries an annual burden hour estimate of 31,833 hours. BIS believes that this final rule will not materially affect the total number of burden hours. This rule makes certain aircraft and parts, components, accessories and attachments that currently are subject to the ITAR subject to the EAR. To the extent that this change results in an increase in the number of export license applications submitted to BIS, there is likely to be a corresponding reduction in the number of license applications submitted to the Department of State, Directorate of Defense Trade Controls. This rule also creates a license requirement to only eight destinations for some aircraft and engine parts and components that currently require a license to all destinations other than Canada. To the extent that this affects the annual burden hours associated this collection, the effect is likely to be a reduction in burden hours. Send comments regarding this burden estimate or any other aspect of this collections of information, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget, by email at [email protected] or by fax to (202) 395-7285 and to William Arvin, BIS, at [email protected].

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration at the proposed rule stage that this rule would not have a significant impact on a substantial number of small entities. The rationale for that certification is at 81 FR 6793 (February 9, 2016) and is not repeated here. BIS received no comments on the certification. Consequently, BIS has not prepared a final regulatory flexibility analysis.

For the reasons stated in the preamble, parts 770 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR, i.e., “defense articles,” are identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). With few exceptions, items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR parts 730-774, which includes the Commerce Control List (CCL) in Supplement No. 1 to Part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. Both the ITAR and the EAR impose license requirements on exports and reexports. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other set of regulations are subject to the EAR.

All references to the USML in this rule are to the list of defense articles controlled for the purpose of export or temporary import pursuant to the ITAR, and not to the defense articles on the USML that are controlled by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for the purpose of permanent import under its regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the Arms Export Control Act (AECA), all defense articles controlled for export or import are part of the USML under the AECA. The list of defense articles controlled by ATF for the purpose of permanent import is the U.S. Munitions Import List (USMIL). The transfer of defense articles from the ITAR's USML to the EAR's CCL does not affect the list of defense articles controlled on the USMIL.

This final rule revises USML Category VIII, covering aircraft and related articles. The revisions are undertaken in order to ensure that the category, which was last revised in 2013, is clear, does not inadvertently control items in normal commercial use, accounts for technological developments, and properly implements the national security and foreign policy objectives of the ECR initiative. The Department published a proposed rule for these revisions, as well as the revisions to Category XIX described below, on February 9, 2016 (81 FR 6797).

Paragraph (a) is revised to clarify that the controls for all paragraphs are applicable “whether manned, unmanned, remotely piloted, or optionally piloted,” by modifying paragraph (a)(5) to clarify the design feature meriting USML control, and by deleting paragraph (a)(6) and placing it into reserve, because the relevant control is subsumed by revised paragraph (a)(5). Paragraphs (a)(7), (a)(8), and (a)(9) are modified to clarify the respective design features meriting USML control. The text of paragraphs (a)(11) and (a)(13) is deleted and the paragraphs are placed into reserve. Paragraph (a)(14) is modified to exclude L-100 and LM-100J aircraft from the scope of control. Note 2 to paragraph (a) is revised to clarify the definition of the described term.

Paragraph (d) is modified to delete the “ship-based” control parameter and to clarify the intent and scope of the control.

Paragraph (e) reflects having been placed into reserve in the final rule published by the Department on October 12, 2016 (81 FR 70340).

Notes 1 and 3 to paragraph (f) are modified to incorporate clarifying language.

Several changes are made to paragraph (h). Paragraph (h)(1) is revised to update the list of subject platforms, and to delete the reference to “equipment” because the specific types of equipment that warrant ITAR control are now enumerated separately in paragraph (h)(29). The Note to paragraph (h)(1) is modified to incorporate technical corrections and to enhance the clarity of the note. Paragraph (h)(2) is revised to focus the scope of control on certain rotorcraft gearboxes meeting specific technical parameters, and a note to paragraph (h)(2) is added to clarify certain terminology used therein. Paragraph (h)(4)(ii) is modified to clarify the scope of control. Paragraph (h)(5) is updated to add the words “On-aircraft” in order to clarify the scope of control, while paragraph (h)(6) is updated to add the words “or rocket” after “missile.” Paragraph (h)(7) is modified to clarify the scope of control. Paragraph (h)(8) is modified to clarify the meaning of “threat-adaptive autonomous flight control systems.” Paragraph (h)(10) is modified to enhance the clarity of the control text. Paragraph (h)(13) is deleted and placed into reserve. Paragraph (h)(16) is modified to incorporate a technical correction. Paragraph (h)(18) is modified to control parts and components that are specially designed to meet the same performance criteria as the systems identified in the paragraph. Paragraph (h)(19) is modified to remove reference to ECCN 9A610.

Current paragraphs (h)(23) through (h)(26) are placed into reserve, with new controls added as paragraphs (h)(27) through (h)(29). Finally, the note to Category VIII is modified to update the paragraphs of paragraph (h) that are affected, as well as to reflect paragraph (e) having been placed into reserve.

A commenting party expressed concern that the objective of the USML review process, first announced in a Notice of Inquiry on March 2, 2015 (80 FR 11314), is to reconsider or reverse the effect of the ECR initiative. The Department clarifies that the purpose of the USML review process is to review and update the subject USML categories, as needed, to account for technological developments, practical application issues identified by exporters and reexporters, and changes in the military and commercial applications of items affected by the list. The “positive list” structure adopted in each of the revised USML categories requires an ongoing process of review in order to ensure that the list is current and reflective of the modern state of the subject technology. This ongoing effort has been anticipated since the start of the ECR initiative and is not intended to reconsider or reverse the effort.

A commenter requested clarification as to why paragraph (h)(2) had been removed from the Note to Category VIII. Paragraph (h)(2) has been revised significantly to control only a class of rotorcraft gearboxes for which there is no current civil application. Given the reduced scope of control in the revised paragraph (h)(2), inclusion in the Note to Category VIII is no longer appropriate.

Three commenting parties recommended that paragraph (a)(5) be deleted, given the proposed reference to “unmanned” aircraft in paragraph (a), while an additional commenter suggested that the proposed paragraph (a)(5) was less clear than the existing version of the same paragraph. In light of these comments, the Department modified the paragraph to control only those unmanned aerial vehicles that are specially designed to incorporate a defense article, in order to focus the paragraph on the intended scope of control. The Department disagrees with the commenters recommending deletion of the paragraph, as there is continuing oversight utility in maintaining a clear, enumerated control for unmanned aerial vehicles that are specially designed to incorporate a defense article, particularly in light of the unique considerations for these aircraft as set forth in the Department's policy on unmanned aerial systems.

Two commenters suggested that the proposed revisions to paragraph (a)(7) were less clear than the existing version of the same paragraph, and could potentially capture an overly broad scope of aircraft with intelligence, surveillance, and reconnaissance (ISR) capabilities where such aircraft incorporate a defense article. The Department agreed with these commenters and revised the paragraph to control only those aircraft that are specially designed to incorporate a defense article for the purpose of performing an intelligence, surveillance, and reconnaissance function, in order to better focus the scope of control and exclude certain aircraft that merely incorporate a defense article.

One commenter expressed concern that proposed paragraph (a)(8) would control technical data for electronic warfare or command, control, and communication aircraft that simply incorporated a defense article, while another party requested clarification of these terms as well as the significant military equipment (SME) designation for this paragraph. The Department notes that command, control, and communication systems are currently designated as SME in USML Category XI, so analogous treatment is appropriate in this paragraph. While the Department has not defined the referenced terms, as there were no examples provided of demonstrated uncertainty in the regulated community, the scope of the paragraph has been revised to control only those referenced aircraft types that are specially designed to incorporate a defense article for the purpose of performing a referenced function.

A commenting party recommended the replacement of each instance of the words “capable of” with “equipped to” or “designed for,” as appropriate in the context of the paragraph at issue. The Department reviewed each paragraph in which these words appeared and made the appropriate revisions where the paragraph did not otherwise provide technical parameters or performance criteria that sufficiently constrained and identified the class of articles subject to control.

Three commenters suggested that paragraph (a)(14) be revised to limit the scope of control to aircraft with uniquely military capabilities, to the exclusion of aircraft platforms such as the L-100 and LM-100J. One commenter asserted that the systems and functions that make the C-130J a sophisticated military platform are removed on the LM-100J, and that militarization of the latter platform would be very difficult. In response to these comments, the Department revised paragraph (a)(14) to exclude the L-100 and LM-100J aircraft.

A commenting party requested clarification regarding the classification of parts and components that are not enumerated or otherwise described on the USML, and are common to the C-130 and the L-100 aircraft. As with all parts and components classification concerns, the commenter is advised to follow the standard order of review guidance provided on the DDTC Web site (see http://pmddtc.state.gov/faqs/ecr.html#b). Where an item is described in multiple entries, an enumerated entry takes precedence over an entry controlling the item by virtue of a specially designed catch-all. The exception to this rule is where a SME entry is involved. In all situations, a SME entry will take precedence over a non-SME entry. If, through the order of review, one determines a particular item is not specifically enumerated in the USML, it may still be controlled by virtue of its parts and components, which are caught via a catch-all. For example, a part or component of an airborne radar system specially designed for the F-35 may not be enumerated or captured in USML Category XI but will be controlled under the specially designed catch-all of Category VIII(h)(1). If the article does not appear to fall under any USML paragraph or paragraph, consult the EAR to complete the classification inquiry.

A commenter recommended the deletion of paragraph (a)(15)(ii), based on the observation that paragraphs (a)(1) through (a)(14) do not specify whether the subject aircraft is of U.S. or foreign origin. The Department notes that paragraph (a)(15)(ii) follows paragraph (a)(15)(i), which captures aircraft not otherwise enumerated in paragraph (a) but bearing any enumerated military designation. Since foreign-origin aircraft would not bear a U.S. military designation, paragraph (a)(15)(ii) exists to capture the foreign equivalents of the U.S.-origin aircraft controlled by paragraph (a)(15)(i).

One commenting party recommended a revision of paragraph (d) to limit its scope to launching and recovery equipment for aircraft controlled in paragraph (a) that meet a minimum weight threshold, so as to exclude small UAVs. The Department disagreed with this recommendation, noting that the paragraph controls only launching and recovery equipment that is specially designed to allow a subject aircraft to land on a vessel described in Category VI(a)-(c). This language controls a sufficiently narrow class of aircraft and adequately excludes many small UAV platforms.

A commenter expressed concern regarding the removal of the word “equipment” from paragraph (h)(1), as it potentially confuses the jurisdiction of such equipment. To clarify the scope of controlled equipment and avoid a perception that equipment designed for aircraft enumerated in paragraph (h)(1) is per se controlled in the same paragraph, the Department created proposed paragraph (h)(30), which appears in this final rule as paragraph (h)(29), to specify the specific types of equipment that warrant USML control.

A commenting party recommended the exclusion from paragraph (h)(1) of those parts identified in ECCNs 9A610.y or 9A619.y. The Department disagreed with this recommendation. The structure of CCL controls is distinguishable from those in the USML, with the CCL utilizing “reasons for control” and country licensing policies that are not available under the ITAR or AECA. As such, provisions from the CCL cannot easily be adopted for the purposes of the USML. Given the unique policy considerations applicable to the enumerated aircraft in paragraph (h)(1) and their low observable/counter low observable capabilities, the Department declines to exclude classes of parts and components for these highly sensitive platforms.

One commenter recommended that paragraph (h)(2) be revised to control only those rotorcraft gearboxes that are qualified to a particular military standard. The Department disagreed with this comment, because military standards are not developed and published to advance export control-related objectives and may be revised frequently for reasons unrelated to export controls, which may additionally reduce the clarity of the USML through successive iterations of revisions to these standards.

Two commenters asserted that individual performance criteria specific in paragraph (h)(2) are not uniquely military in nature. The Department notes that both criteria are required for control, and it is the combination of the two specified criteria that makes the controlled article militarily significant. No examples were provided of commercial items capable of meeting both performance criteria.

A commenter suggested that tail boom folding systems controlled under paragraph (h)(3) could be useful in civil applications to optimize the use of space. The Department did not revise the control because the commenter did not provide an example of a current civil application for the articles controlled in this paragraph.

A commenter recommended that paragraph (h)(5) be reviewed in concert with ECCN 9A610.e to ensure that the two entries did not overlap. The Department reviewed the entries and made no change to the paragraph, as it is sufficiently limited in scope to on-aircraft arresting gear and excludes arresting gear used on the ground.

One commenting party recommended that paragraph (h)(6) be revised to control “rocket launchers” in addition to “missile launchers,” and further recommended criteria to exclude from control certain airborne UAV launching capabilities. The Department agreed with the addition of “rocket launchers” and revised the paragraph accordingly. However, the Department disagreed with the recommended airborne launching criteria, as the ability to deploy a UAV from an aircraft in flight is a current military capability.

A commenting party suggested that the Department had not offered a sufficient rationale to move to the USML specially designed parts and components for the systems controlled in paragraph (h)(7). The Department agreed with this comment and deleted the proposed addition. The disposition of the relevant parts and components will be addressed in the Department of Commerce's companion rule.

A commenting party recommended that paragraph (h)(8) be merged with paragraph (h)(12), in order to create a single paragraph for flight control systems that excludes commercial UAV “sense-and-avoid” capabilities. The Department observes that the ability of the subject UAVs to “avoid collisions” is only one aspect of the control parameter, which also requires the capability to “stay together” by virtue of the subject flight control system. No example has been presented of a commercial UAV flight control system that provides the capability for multiple UAVs to both “avoid collisions” and “stay together.” Accordingly, the Department did not revise the paragraph.

One commenter suggested that paragraph (h)(10) include a note, similar to the Note to Category XI(a)(3), indicating that the paragraph does not control radio altimeter equipment conforming to Federal Aviation Administration TSO-C87. The Department did not add this note to paragraph (h)(10), because commercial altimeters conforming to this standard would not possess either of the low probability of intercept capabilities described in the paragraph. Since current commercial altimeters cannot meet the criteria of paragraph (h)(10), it is not necessary to include a note that would impact only these commercial items.

Three commenting parties suggested that the Department had not offered a sufficient rationale to move to the USML specially designed parts and components for the systems controlled in paragraph (h)(18). The Department partially agreed with this comment and revised the proposed addition. The only parts and components added to paragraph (h)(18) are those that are specially designed to function after impact of a 7.62 mm or larger projectile. This is the same criterion that applies to the drive systems and flight control systems subject to control under this paragraph; thus, this paragraph unifies the articles subject to control under a common parameter of military criticality.

Two commenters recommended revisions to enhance the clarity of paragraph (h)(20). This paragraph pertains to classified defense articles and classified information, and replicates the structure of similar entries in other revised USML categories that are outside of the scope of this rule. To maintain conformity with those entries, the Department has noted these commenters' recommendations and will reconsider them in the context of a later review of all USML entries relating to classified defense articles and classified information.

Four commenting parties asserted that the proposed paragraph (h)(27) did not control articles providing a critical military advantage, would control variable speed gearboxes in commercial use, or would otherwise limit commercial development utilizing such technology. The Department notes that former paragraph (h)(2), prior to the revisions set forth in this rule, controlled “variable speed gearboxes” generally. Accordingly, the proposed paragraph (h)(27) constituted a reduction in the range of variable speed gearboxes subject to the ITAR to those employed in next-generation military technology. In light of the comments received, the Department has further refined paragraph (h)(27) to clarify the meaning of “variable speed gearbox,” as well as to articulate the varying output speed currently in use in military applications.

A commenting party observed that the proposed paragraph (h)(28) would capture dual-use electrical power or thermal management systems used with Category XIX engines. The Department agreed with this comment and revised the paragraph to control electrical power or thermal management systems specially designed for an engine controlled in Category XIX.

A commenter requested clarification that the use of the term “pound” in paragraph (h)(28)(i) refers only to the generator and not the controller. The Department updated the paragraph to clarify that the referenced threshold excludes the mass of the controller for the purpose of calculating the gravimetric power density. The commenter additionally requested clarification as to whether the threshold reflects the total heat exchanger capacity or a single heat exchanger. The Department updated the paragraph to address the concerns expressed in the comment.

The same commenter asserted that paragraph (h)(28)(iii) lacked clarity and should be deleted. The Department agreed with this comment and deleted the paragraph. Consequentially, proposed paragraph (h)(28)(iv) now appears in this final rule as paragraph (h)(28)(iii). Additionally, the commenter requested clarification regarding the conditions for measuring the threshold in proposed paragraph (h)(28)(iv). The Department did not insert additional criteria regarding measurement conditions because the paragraph as drafted describes the threshold for ITAR control at a sufficient level of granularity.

A commenter proposed revisions to proposed paragraph (h)(29) to better articulate the scope of software to be controlled. A second commenter recommended deletion of the paragraph, since algorithms and software are already controlled as technical data. The Department agreed with the second commenter and deleted the proposed paragraph, having determined that the subject software is already controlled under paragraph (i).

Three commenters suggested that proposed paragraph (h)(30) would result in expense to industry with questionable regulatory benefit, and would require the re-review of certain parts and components to determine whether classification under the new paragraph is appropriate.

The Department notes that Category VIII was among the first two categories to undergo revision pursuant to the ECR initiative, a primary goal of which was to create a “positive list” that would inevitably require periodic revisions to keep reflective of the current state of technology. The experience of industry with the earliest revised categories, as well as the U.S. government in enforcing the regulations, has identified areas in which adjustments to Categories VIII and XIX were necessary to best articulate the articles subject to control.

The former treatment of equipment in paragraph (h)(1) potentially created the impression that equipment for enumerated aircraft was broadly controlled under that paragraph. For additional clarity, a newly-created paragraph, now found at (h)(29), enumerates certain types of equipment that merit ITAR control. While the Department's review considered in all cases the potential impact to industry in revising aspects of these categories, the primary standard of review was the “critical military or intelligence advantage” standard set forth in ITAR § 120.3(b). As a general principle, where migration of items from the CCL to the USML was considered, the Department sought first to accommodate the item in a revised ECCN. The articles that newly appear on or have returned to the USML in this rule are those that constitute or are specially designed for next-generation technology and thus satisfy ITAR § 120.3. In response to comments received, the Department revised the paragraph to better articulate the specific types of equipment that meet this standard.

Finally, a commenter recommended replacing the words “technical data” in paragraph (x) with “technology,” to align the text with other revised categories and utilize the appropriate EAR terminology. The Department agreed and made the recommended change.

This final rule revises USML Category XIX, covering gas turbine engines. As with USML Category VIII, the revisions are undertaken in order to ensure that the category is clear, does not inadvertently control items in normal commercial use, accounts for technological developments, and properly implements the national security and foreign policy objectives of the ECR initiative.

Paragraph (a) is modified to clarify the scope of controlled engines and to incorporate technical corrections. Paragraph (b)(1) is revised to update the performance criteria meriting control, while paragraph (b)(2) is revised to clarify the specific power threshold specified therein.

Paragraph (c) is modified to incorporate conforming and technical changes and to make clear that the paragraph applies only to gas turbine engines, while paragraph (d) is modified to update the list of subject engines. The Note to paragraph (e) is modified to incorporate a conforming change.

Several changes are included within paragraph (f). Paragraph (f)(1) is modified to incorporate technical corrections and to update the list of subject engines. Paragraph (f)(2) introduces additional text to clarify the scope of controlled hot section components, and to reorganize the text according to the nature of the articles. New controls are included in paragraphs (f)(7) through (f)(12).

A commenter asserted that the PT6C-67A, a commercial model, would exceed the threshold proposed in paragraph (b)(1). In response to this comment, the Department increased the relevant threshold to 2000 mechanical shp (1491 kW).

Three commenting parties recommended clarification regarding the specific power threshold set forth in paragraph (b)(2). The Department agreed with these commenters and revised the relevant language to include a unit of measurement for the specific power threshold and maximum takeoff shaft horsepower. The Department further notes that given the additional modifications to paragraph (b)(2) described below, and the requirement that an engine must meet all of the criteria of paragraph (b)(2) to be subject to ITAR control, the revised paragraph should not pose a risk of capturing next-generation commercial engine models.

Two commenters asserted that the term “armament gas” in paragraph (b)(2) is unclear and requested a definition. The Department disagreed with the commenters because the term can be interpreted based on the plain meaning of the words “armament gas ingestion”—that is, the term describes an engine that is specially designed to ingest gas released from armaments.

Three commenting parties requested clarification regarding the term “transient maneuvers” in paragraph (b)(2), and requested revision to capture only maneuvers that are unique to military scenarios. The Department agreed with these comments and revised the parameter to capture non-civil transient maneuvers.

Three commenting parties suggested that the phrase “controlled in this category” in paragraph (c) be revised to read “controlled in Category VIII.” The Department partially agreed and revised the phrase to read “controlled in this subchapter.”

A commenter recommended the removal of the GE38 engine from paragraph (d), indicating that it is a marketing name that was used during the development of the T408 and will not be used in production. The Department agrees with this observation but also notes that GE38 models remain in use in test aircraft. Accordingly, the GE38 reference will remain in paragraph (d) while such engines are still in use.

One commenter recommended the removal of the MT7 engine from paragraph (d), arguing that it is a derivative of the AE1107C and that oil sump sealing is being designed out of the model. While the comment appears to describe a design modification that has not yet occurred, the Department further notes that the subject engine is unique to a destroyer platform. For these reasons, the MT7 was retained in paragraph (d).

The Department has removed the TF60 engine from paragraph (d) in response to a public comment that recommended its removal.

A commenter questioned whether the word “systems” in paragraph (e) should be interpreted to also indicate controls of parts and components thereof. The Department confirms that paragraph (e) is limited to specified systems and includes no reference to “parts and components thereof”; accordingly, parts and components thereof are not controlled under paragraph (e).

Two comments asserted, with respect to paragraph (f) as well as several paragraphs thereof, that materials should not be controlled in this category because Category XIII is intended to contain all materials entries. The Department disagreed in part with these comments. Where the materials at issue pertain only to a particular class of defense articles that are controlled in a single subcategory—as with these materials relevant only to gas turbine engines controlled in Category XIX—there is little utility in requiring the reader to review multiple USML categories for articles of potential relevance. Were these materials of broad applicability for a variety of defense articles controlled under more than one USML category, the Department would locate the relevant USML entries in Category XIII. However, in this case, ECCN 9C619 remains the appropriate category for the materials described in the proposed rule. The companion rule the Commerce Department has published explains the new licensing policies pertaining to such materials. No new materials controls are added to Category XIX.

Two commenting parties recommended the exclusion from paragraph (f)(1) of those parts identified in ECCNs 9A610.y or 9A619.y. The Department disagreed with this comment for reasons similar to those explained above in the context of a similar comment on Category VIII(h)(1), regarding the different structures and objectives of CCL ECCNs as well as the national security interest in retaining control over the parts and components of engines with evolving or next-generation applications.

One commenter expressed concern regarding the removal of the word “equipment” from paragraph (f)(1). As with Category VIII(h)(1), the word was removed to avoid the impression that all equipment, including production equipment, relevant to the enumerated aircraft was subject to control under this paragraph. The Department has created a new paragraph (f)(12), which appeared in the proposed rule as proposed paragraph (f)(16), to enumerate certain types of equipment that merit control.

Three commenters requested clarification of the word “actively” in paragraph (f)(2), and requested the addition of a definition. The Department agreed that the term, which first appeared in the proposed rule, did not improve the clarity of the paragraph and deleted each instance of the term.

A commenting party recommended the reorganization of paragraph (f)(2) to refer to “intermediate pressure turbine blades” after “high pressure turbine blades” and before “low pressure turbine blades.” The Department agreed and revised the paragraph accordingly.

A commenting party expressed difficulty interpreting the meaning of “engine monitoring systems” in paragraph (f)(5) and suggested that a definition of the term might be beneficial. The Department disagreed with the comment because the term can be sufficiently understood without a new definition, given the existing definition of “system” set forth in ITAR § 120.45(g).

Four parties commented generally on the new paragraphs that appeared in the proposed rule as (f)(7) through (f)(16), arguing that USML control of the subject articles will result in expense to industry by requiring reclassification of articles previously subject to the EAR. As with Category VIII, described above, Category XIX was among the first two categories to undergo revision pursuant to the ECR initiative, a primary goal of which was to create a “positive list” that would inevitably require periodic revisions to keep reflective of the current state of technology. The experience of industry with the earliest revised categories, as well as the U.S. government in enforcing the regulations, has identified areas in which adjustments to Categories VIII and XIX were necessary to best articulate the articles subject to control.

While the Department's review considered in all cases the potential impact to industry in revising aspects of these categories, the primary standard of review was the “critical military or intelligence advantage” standard set forth in ITAR § 120.3(b). As a general principle, where a migration of items from the CCL to the USML was considered, the Department sought first to accommodate the item in a revised ECCN. The articles that nevertheless appear in new USML entries in this rule constitute or are specially designed for next-generation technology and thus satisfy ITAR § 120.3.

The Department disagrees with the commenters' characterization of proposed paragraph (f)(16), now appearing as paragraph (f)(12), which controls certain enumerated types of equipment. Since “equipment” was referenced generally in the previous iteration of paragraph (f), the objective of this addition is to better clarify the equipment subject to ITAR control. With respect to the remaining proposed paragraphs, the Department applied this standard and determined that proposed paragraphs (f)(7), (f)(13), (f)(14), and (f)(15) were not necessary for inclusion in the USML. Accordingly, these proposed paragraphs have been deleted. The considerations that prompted the addition of proposed paragraph (f)(7) are adequately addressed through paragraph (g), while the remaining deleted proposed entries will be addressed by the Department of Commerce in ECCN 9C619.

The Department retained proposed paragraph (f)(8), now appearing in the category as paragraph (f)(7), because the referenced equipment allows for the production of gas turbine engines and parts and components that offer a critical military advantage.

Among the retained new paragraphs and in response to public comments, the Department revised proposed paragraphs (f)(9) through (f)(12)—now appearing as paragraphs (f)(8) through (f)(11)—to reference only systems specially designed for gas turbine engines controlled in Category XIX, in order to avoid a chilling effect on potential commercial applications of these technologies.

The Department revised proposed paragraph (f)(16), now appearing in this final rule as paragraph (f)(12), to enumerate certain types of equipment that is specially designed for a defense article described in paragraph (f)(1).

Finally, a commenter recommended replacing the words “technical data” in paragraph (x) with “technology,” to align the text with other revised categories and utilize the appropriate EAR terminology. The Department agreed and made the recommended change.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (Rulemaking) and 554 (Adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department published this rule as a proposed rule (81 FR 6797) with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.

Since this rule is exempt from the rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

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

This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

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

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

The Department of State has reviewed the amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

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

Following is a listing of approved collections that will be affected by revision of the U.S. Munitions List (USML) and the Commerce Control List pursuant to the President's Export Control Reform (ECR) initiative. This rule continues the implementation of ECR. The list of collections pertains to revision of the USML in its entirety, not only to the categories published in this rule. The Department is not proposing or making changes to these collections in this rule. The information collections impacted by the ECR initiative are as follows:

(1) Statement of Registration, DS-2032, OMB No. 1405-0002.

(2) Application/License for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-0003.

(3) Application/License for Temporary Import of Unclassified Defense Articles, DSP-61, OMB No. 1405-0013.

(4) Application/License for Temporary Export of Unclassified Defense Articles, DSP-73, OMB No. 1405-0023.

(5) Application for Amendment to License for Export or Import of Classified or Unclassified Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB No. 1405-0092.

(6) Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No. 1405-0093.

(7) Maintenance of Records by Registrants, OMB No. 1405-0111.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 121 is amended as follows:

Elsewhere in today's issue of the Federal Register, the Agency is amending one of its systems of records, NLRB-17, Personnel Security Records, pursuant to the Privacy Act of 1974.

Pursuant to subsections (k)(1), (2), (3), (5), (6), and (7) of the Privacy Act, and for the reasons set forth below, the Board includes within Section 102.119, additional paragraphs (o) and (p), exempting portions of the amended system of records (NLRB-17) from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act.

Subsection (k)(1) of the Privacy Act authorizes the head of an agency to exempt a system of records from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act (5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), (f)) (hereinafter, “the applicable subsections”) if records are properly classified pursuant to an Executive Order, within the meaning of section 552(b)(1).

Subsection (k)(3) of the Privacy Act authorizes the head of an agency to exempt a system of records from the applicable subsections where the information is maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18 of the U.S. Code.

Subsections (k)(2), (5), and (7) of the Privacy Act, in combination, authorize the head of an agency to exempt a system of records from the applicable subsections if records are created or maintained for the purpose of determining suitability, eligibility, qualifications, or potential for promotion for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. As indicated in the Agency's accompanying Privacy Act system of records notice amending NLRB-17, this system contains information compiled by the Agency in the course of carrying out its personnel security responsibilities.

Subsection (k)(6) of the Privacy Act authorizes the head of an agency to exempt a system of records from applicable subsections when they might compromise the objectivity of testing and examination materials used for a personnel investigation for employment or promotion in the Federal service.

The requirements of the applicable subsections, if applied to the amended system of records, NLRB-17, would substantially compromise the ability of the Agency's Security Branch staff to effectively conduct background investigations concerning the suitability, eligibility, and fitness for service of applicants for Federal employment and contract positions at the Agency, in addition to determining the appropriate level of access to the Agency's facilities. For instance, the disclosure requirements as set forth in the provisions for notice, access, amendment, review, and accountings, could enable subject individuals to take action to jeopardize the physical safety or anonymity of confidential sources used during background proceedings. Additionally, the disclosure of information gathered during a background investigation may unreasonably weaken the interests of protecting properly classified information and the objectivity of certain examination materials.

This rule relates to individuals rather than small business entities. Accordingly, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this rule will not have a significant impact on a substantial number of small business entities.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the Agency has determined that this rule would not impose new recordkeeping, application, reporting, or other types of information collection requirements on the public.

The rule 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 levels of government. Therefore, it is determined that this rule does not have federalism implications under Executive Order 13132.

In accordance with Executive Order 12866, it has been determined that this rule is not a “significant regulatory action,” and therefore does not require a Regulatory Impact Analysis.

For the reasons stated in the Supplementary Information section, Part 102 of title 29, chapter I of the Code of Federal Regulations, is amended as follows:

The Pension Benefit Guaranty Corporation (PBGC) administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under Title IV. Guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with subpart B of part 4044. In addition, when PBGC terminates an underfunded plan involuntarily pursuant to ERISA section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.

Under § 4044.51(b) of the asset allocation regulation, early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.

Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” (i.e., the earlier of the normal retirement age or the age at which an unreduced benefit is first payable) and the participant's monthly benefit at unreduced retirement age. The table applies only to plans with valuation dates in the current year and is updated annually by the PBGC to reflect changes in the cost of living, etc.

Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.

This document amends appendix D to replace Table I-16 with Table I-17 in order to provide an updated correlation, appropriate for calendar year 2017, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-17 will be used to value benefits in plans with valuation dates during calendar year 2017.

PBGC has determined that notice of, and public comment on, this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2017, the plan administrator needs the updated table being promulgated in this rule. Accordingly, the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2017.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

In consideration of the foregoing, 29 CFR part 4044 is amended as follows:

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

In June 2013, demolition work began on the Route 9, Beesley Point Bridge between Somers Point and Marmora, NJ. Route 52 Construction, the company performing this demolition work, has completed all demolition of the bridge and piles except the portion of the bridge which has the bascule span opening for the navigational channel. The removal of the remaining piles, which are secured to the sea floor bed, will be completed by using explosives after which the piles and debris will be removed. The Captain of the Port has determined that potential hazards associated with pile blasting operations, beginning on or about November 15, 2016, will be a safety concern for anyone operating within 500 yards of pile blasting operations during times of explosive detonation.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the final details for this event were not received by the Coast Guard until November 8, 2016, and the safety zone is needed for blasting and demolition operations which will begin November 15, 2016. It is impracticable to publish an NPRM and consider comments due to the short window of time until the operation begins. Allowing this event to go forward without a safety zone in place would expose mariners and the public to unnecessary dangers associated with explosive detonation.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register for the reasons we stated above. Delaying the effective date of this rule would be contrary to public interest because the safety zone is needed to begin on November 15, 2016, to protect the public from safety hazards associated with explosive detonation.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port has determined that potential hazards are associated with demolition and pile blasting operations of the Route 9, Beesley Point Bridge, over the Great Egg Harbor Bay, in Marmora, NJ, from November 15, 2016, through November 24, 2016. The rule will provide a safety buffer around the blasting vessel during times of explosive detonation.

The purpose of this rule is to promote maritime safety and protect vessels from the hazards of bridge demolition and pile blasting operations, and to maintain safety of navigation in the Great Egg Harbor Bay, in the vicinity of the Route 9, Beesley Point Bridge. The rule will provide a safety buffer around the crane and barge while demolition operations are conducted, and will provide a safety buffer around the blasting vessel during times of explosive detonation.

On November 15, 2016, demolition work will begin on the remaining portion of the Route 9, Beesley Point Bridge, over the Great Egg Harbor Bay, in Marmora, NJ. The Captain of the Port has determined that the hazards associated with demolition and pile blasting operations requires a safety zone.

The safety zone will be enforced starting on or after November 15, 2016, only during times of explosive detonation, and encompasses all navigable waters in the Great Egg Harbor Bay within 500 yards of vessels and machinery being used to conduct pile blasting and removal operations. The duration of the enforcement of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while explosive detonation occurs. There will be two blasting events occurring on consecutive days to complete both piers. Actual dates and times of explosive detonation will be published with a combination of broadcast notice to mariners, local notice to mariners, posted warning signs, 500 yard marine traffic safety zone maintained by the contractors safety boats, a 10 minute, 5 minutes, and 1 minute warning made by the blasting vessel via VHF-FM channel 16, and warning signals at 5 minutes with 3 short blasts of the air horn, and 1 minute warning of 2 short blasts of the air horn. The schedule of the signals will be posted along with warning signs. The contractor will verify that all vessels and persons are clear of safety zone 10 minutes prior to the scheduled shot time and will remain secured until the blaster gives the “All Clear” that the channel is clear for vessels to transit.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port or his designated representative. No vessels may transit through the safety zone during times of explosive detonation. During pile blasting explosive detonation, vessels will be required to maintain a 500 yard distance from vessels and equipment used to conduct pile blasting and removal operations. This 500 yard radius will be secured by two contractor safety boats in the adjacent waterways.

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

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

This finding is based on the limited size of the zone and that vessels will only be affected during times of explosive detonation. In addition, the zone will be well publicized to allow mariners to make alternative plans for transiting the affected area.

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

It is expected that there will be minimal disruption to the maritime community. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the river to allow mariners to make alternative plans for transiting the affected areas. In addition, vessels may transit the navigation channel, except during time of explosive detonation.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing all navigable waters in the Great Egg Harbor Bay within 500 yards of vessels and machinery being used to conduct pile blasting and removal operations during times of explosive detonation. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

On October 3, 2016, the Copyright Office published a proposed rulemaking that, in part, proposes to eliminate obsolete CARP regulations from the CFR. 81 FR 67940, 67942. One of the CARP provisions, the regulation regarding rates for the statutory license for jukeboxes, is not obsolete and is therefore the only provision that would remain.1 See 37 CFR 254. That provision could have been moved to the CRB section of the CFR earlier, but because the rates have remained unchanged for many years, neither the Copyright Office nor the CRB has moved the regulation.

The Copyright Royalty Judges hereby relocate that provision by adding it to Chapter III of title 37 of the CFR, the chapter governing CRB activities.

For the reasons set out in the preamble, the Copyright Royalty Judges amend 37 CFR chapter III by adding part 388 to read as follows:

I. Background and Overview

On January 22, 2010 (75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 NO2 NAAQS to EPA no later than January 22, 2013.

In a proposed rulemaking published on July 20, 2016 (81 FR 47124), EPA proposed to approve Alabama's 2010 1-hour NO2 NAAQS infrastructure SIP submissions submitted on April 23, 2013, and December 9, 2015, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), and the state board requirements of section 110(a)(2)(E)(ii). On March 18, 2015, EPA approved Alabama's April 23, 2013, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i) and (J) for the 2010 1-hour NO2 NAAQS. See 80 FR 14019.1 Therefore, EPA is not taking any action today pertaining to sections 110(a)(2)(C), prong 3 of D(i) and (J). With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1, 2 and 4), Alabama provided a separate submissions. EPA is considering action on Alabama's submission related to 110(a)(2)(D)(i)(I) (prongs 1, 2 and 4) through a separate actions. Additionally, with respect to Alabama's infrastructure SIP submissions related to section 110(a)(2)(E)(ii) requirements respecting the section 128 state board requirements, EPA is disapproving this element of Alabama's submissions in this rulemaking. The details of Alabama's submission and the rationale for EPA's actions for this final rulemaking are explained in the July 20, 2016, proposed rulemaking. Comments on the proposed rulemaking were due on or before August 19, 2016. EPA received no adverse comments on the proposed action.

EPA is taking final action to approve Alabama's infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4). With regard to the state board majority requirements of section 110(a)(2)(E)(ii), EPA is finalizing a disapproval of Alabama' April 23, 2013, and December 9, 2015, infrastructure submissions. Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a CAA Part D Plan or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP call) starts a sanctions clock. The portion of section 110(a)(2)(E)(ii) provisions (the provisions being disapproved in this notice) were not submitted to meet requirements for Part D or a SIP call, and therefore, no sanctions will be triggered. However, this final action will trigger the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiency, and EPA approves the plan or plan revision before EPA promulgates such FIP.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 20, 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).

40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

For the purpose of this document, we are giving meaning to certain words or initials as follows:

• The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

• The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

• The words Arizona and State mean the State of Arizona.

• The initials BART mean or refer to Best Available Retrofit Technology.

• The term Class I area refers to a mandatory Class I Federal area.

• The initials CBI mean or refer to Confidential Business Information.

• The initials CPC mean or refer to CalPortland Cement.

• The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

• The initials FIP mean or refer to Federal Implementation Plan.

• The initials NOX mean or refer to nitrogen oxides.

• The initials PCC mean or refer to Phoenix Cement Company.

• The initials SCR mean or refer to selective catalytic reduction.

• The initials SIP mean or refer to State Implementation Plan.

• The initials SNCR mean or refer to selective non-catalytic reduction.

• The initials SRPMIC mean or refer to Salt River Pima-Maricopa Indian Community.

This section provides a brief overview of the requirements of the CAA and the EPA's Regional Haze Rule, as they apply to this particular action. Please refer to our previous rulemakings on the Arizona Regional Haze State Implementation Plan (SIP) for additional background regarding the visibility protection provisions of the CAA and the Regional Haze Rule.1

Congress created a program for protecting visibility in the nation's national parks and wilderness areas in section 169A of the 1977 Amendments to the CAA. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution.” 2 Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal. In the 1990 CAA Amendments, Congress amended the visibility provisions in the CAA to focus attention on the problem of regional haze, which is visibility impairment produced by a multitude of sources and activities located across a broad geographic area.3 The Regional Haze Rule was promulgated in 1999 and is in the process of being revised.4 It requires states to develop and implement SIPs to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas 5 (“Class I area”) by reducing emissions that cause or contribute to regional haze.6

The Arizona Department of Environmental Quality (ADEQ) submitted a Regional Haze SIP to the EPA on February 28, 2011. The EPA acted on ADEQ's Regional Haze SIP in three separate rulemakings. Specifically, the first final rule approved in part and disapproved in part the State's Best Available Retrofit Technology (BART) determinations for three power plants (Apache Generating Station, Cholla Power Plant, and Coronado Generating Station), and promulgated a FIP for NOX BART as well as the compliance requirements for all three power plants.7 The second final rule, which addressed the remaining elements of the Arizona Regional Haze SIP, included our disapproval of the State's analysis of reasonable progress measures for point sources of NOX.8 In the third final rule, the EPA promulgated a FIP in 2014 (2014 FIP) addressing the requirements of the Regional Haze Rule and interstate visibility transport for the remainder of the disapproved portions of Arizona's Regional Haze SIP.9

Among other things, the 2014 FIP includes requirements for NOX emission controls applicable to PCC Clarkdale Plant Kiln 4 and CPC Rillito Plant Kiln 4 under the reasonable progress requirements of the Regional Haze Rule. In particular, the EPA established two alternative emission limits for NOX on Kiln 4 of the Clarkdale Plant: An emission limit of 2.12 pounds per ton (lb/ton) of clinker produced or an emission limit of 810 tons/year. The 2.12 lb/ton limit is achievable through installation of selective non-catalytic reduction (SNCR), based on a 50 percent control efficiency, while the 810 ton/year limit could be met either by installing SNCR or by maintaining recent production levels.10 11 12 13 We set an emission limit for NOX at the Rillito Plant of 3.46 lb/ton of clinker produced, based on a 35 percent control efficiency.14 The 2014 FIP also includes monitoring, recordkeeping, and reporting requirements and a compliance deadline for the final NOX emission limits of December 31, 2018. Finally, in response to comments asserting that SNCR control efficiencies of 50 percent for Kiln 4 at the Clarkdale Plant and 35 percent for Kiln 4 at the Rillito Plant were unsupported and that SNCR was capable of achieving higher control efficiencies, we included in the final 2014 FIP requirements for a control technology demonstration project for the SNCR system at each plant, which entailed the collection of data and preparation of a SNCR optimization protocol that would be used to determine if a higher control efficiency would be achievable.

PCC and CPC each submitted a petition to the EPA on November 3, 2014, seeking administrative reconsideration and a partial stay of the 2014 FIP under CAA section 307(d)(7)(B) and the Administrative Procedure Act.15 In their petitions, both companies raised multiple objections to the control technology demonstration requirements in the 2014 FIP. CPC asserted that the requirements were burdensome, expensive, and unnecessary, given that CPC had already “evaluated fuels, fuel fineness, and the other characteristics listed in the Optimization Protocol” as part of its effort to reduce energy usage.16 PCC stated that the requirements “would be burdensome to implement” and “would substantially interfere with the cement manufacturing operations” at the Clarkdale Plant.17 PCC further asserted that requirements would harm the Salt River Pima-Maricopa Indian Community (SRPMIC), which relies on revenue from the Clarkdale Plant.18

The EPA sent letters to PCC and CPC on January 16, 2015 and January 27, 2015, respectively, granting reconsideration of the control technology demonstration project requirements pursuant to CAA section 307(d)(7)(B).19 Although we did not act on the companies' request for a stay at that time, we subsequently granted a stay of the control technology demonstration project requirements under CAA section 307(d)(7)(B), effective from August 15, 2016 to November 14, 2016.20

On June 30, 2016, the EPA proposed to revise the 2014 FIP based on our reconsideration of the control technology demonstration requirements for the PCC Clarkdale Plant and CPC Rillito Plant.21 In particular, we proposed to replace these requirements, applicable to Kiln 4 at the Clarkdale Plant and to Kiln 4 at the Rillito Plant, with a series of revised recordkeeping and reporting conditions. We also proposed to find that these revisions to the 2014 FIP would comply with CAA section 110(l).

In light of the objections to the control technology demonstration requirements raised by CPC and PCC, we re-evaluated the necessity of these requirements for the Rillito and Clarkdale plants once additional information became available on the performance of SNCR at cement kilns. Although one of the objections to the control technology demonstration requirements raised in the petitions for reconsideration was that EPA lacks authority to impose such a requirement in a regional haze FIP, we disagree with that narrow interpretation of our authority. We note that the EPA's authority in promulgating a regional haze FIP derives not only from the visibility protection provisions of the CAA and our implementing regulations, but also from other provisions of the CAA. CAA section 302(y) defines a FIP, in pertinent part, as a plan (or portion thereof) promulgated by the EPA “to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy” in a SIP, “and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions or emissions allowances).” CAA section 302(k), in turn, defines “emission limitation” to include (among other things) “any design, equipment, work practice or operational standard promulgated under [the CAA].” Therefore, the EPA has authority to include design, equipment, work practice and operational standards, such as those included in the control technology demonstration requirements, in a FIP. Furthermore, CAA section 114 provides that in order to develop any SIP or FIP, or to “carry[] out any provision of [the CAA],” the EPA may require owners or operators of emission sources to install monitoring equipment, sample emissions, and “provide such other information as the [EPA] may reasonably require.” Accordingly, the EPA also has authority to require collection and submittal of emission and operating data in the manner set forth in the control technology demonstration requirements. Nonetheless, we are now finalizing our action to remove the control technology demonstration requirements, including the requirement for an optimization protocol, from the 2014 FIP for the reasons set out in our proposal and elsewhere in this document.

The EPA proposed to remove the control technology demonstration requirements for Kiln 4 at the CPC Rillito Plant after we evaluated NOX emission data from a SNCR system operating at a similar kiln at another CPC facility, the Mojave Plant in California, which gave us the information that we were seeking regarding SNCR performance. The data from the Mojave Plant demonstrated that the installed SNCR system could only achieve a control efficiency of 40 percent. In our proposed action to revise the FIP, we specifically noted several site-specific factors indicating that a SNCR system at CPC Rillito Kiln 4 would underperform the SNCR system at the Mojave Plant. Given the relatively low SNCR effectiveness on the Mojave Plant, we proposed to find that a SNCR control efficiency more stringent than the 35 percent required by the 2014 FIP was not achievable at CPC. Therefore, the additional information from the 2014 FIP control technology demonstration project is no longer needed because the CPC SNCR control efficiency in the 2014 FIP is consistent with the SNCR performance at Mojave. Based on our analysis of emissions data and control efficiencies from the Mojave Plant, we proposed to find that it is no longer necessary for CPC to meet the relatively detailed and prescriptive control technology demonstration requirements in the 2014 FIP, including submittal of a SNCR optimization protocol. We therefore proposed to remove the control technology demonstration requirements. As explained in section III.B below, we proposed to replace these requirements with a set of revised recordkeeping and reporting conditions.

In our proposed action to revise the 2014 FIP, we noted that the 50 percent control efficiency for PCC Clarkdale Kiln 4 is already more stringent than the control efficiency demonstrated at the Mojave Plant, and we proposed to find that the 50 percent control efficiency specified in the 2014 FIP for PCC Clarkdale was supported by the available data. Therefore, the additional information from the 2014 FIP control technology demonstration project is no longer needed because the PCC SNCR control efficiency in the 2014 FIP is more stringent than the SNCR performance at Mojave. The EPA proposed to remove the control technology demonstration requirements for Kiln 4 at the PCC Clarkdale Plant and replace them with revised recordkeeping and reporting conditions.

As described in III.A above, we proposed to find that it is no longer necessary for CPC and PCC to comply with the relatively prescriptive and detailed control technology demonstration requirements established in our 2014 FIP, and we are replacing those provisions with a set of revised recordkeeping and reporting requirements.

The CAA requires that any revision to an implementation plan shall not be approved by the Administrator if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA.22 We proposed to find that the revisions to the 2014 FIP would not affect any applicable requirements of the CAA because they would not alter the amount or timing of emission reductions from the Clarkdale Plant or the Rillito Plant. In particular, the replacement of the control technology demonstration requirements with revised recordkeeping and reporting conditions would not alter any of the applicable emission limitations, compliance determination methodologies, or compliance deadlines. Therefore, we proposed to find that these revisions would comply with CAA section 110(l).

Our proposed action provided a 45-day public comment period. During this period, we received three comments: A comment letter from PCC,23 a comment letter from CPC,24 and a comment letter from Earthjustice on behalf of National Parks Conservation Association and Sierra Club.25 The significant comments and our responses are set forth below.

Comment: PCC commented that the EPA's reconsideration rulemaking is necessary for the reasons stated in PCC's petition for reconsideration and in its opening and reply briefs filed with Ninth Circuit in litigation over the Arizona Regional Haze FIP. PCC included each of these documents as attachments to its comments and incorporated them by reference into its comments. PCC also requested that the rulemaking be finalized as soon as possible.

Response: We acknowledge PCC's support for our action on reconsideration. However, PCC's references to and incorporation of the documents it has filed in litigation concerning the Arizona Regional Haze FIP go far beyond the narrow scope of the revisions to the 2014 FIP that we are considering in this action. For example, PCC's arguments regarding the adequacy of notice and the EPA's reasoning concerning the inclusion of the optimization provisions in the FIP are not relevant to this action because the EPA has already completed its proceeding for reconsideration of these provisions under CAA section 307(d)(7)(B) (i.e., this rulemaking action).

Comment: CPC expressed support for this reconsideration action to replace control technology demonstration requirements at CPC with a series of revised recordkeeping and reporting requirements.

Response: We acknowledge CPC's support for our action on reconsideration.

Comment: Earthjustice submitted comments on behalf of the National Parks Conservation Association and Sierra Club (collectively referred to as Earthjustice). The comment letter asserts that the EPA should require PCC and CPC to install Selective Catalytic Reduction (SCR) rather than SNCR technology as reasonable progress controls in our final action. Earthjustice states that the EPA rejected SCR in our initial action in the 2014 FIP because SCR was not being used in the United States to control cement manufacturing facilities. The comment letter indicates that two cement manufacturing facilities in the United States have installed SCR technology since our 2014 FIP. Noting that the EPA proposed reconsideration of the control technology demonstration requirements based on data from the CPC Mojave Plant in California, Earthjustice states:

Response: Our proposed revision to the FIP in this action is very limited in scope. The proposed FIP revision followed petitions for reconsideration filed by PCC and CPC in November 2014. The EPA granted reconsideration in January 2015, at which time we stated that the scope of our reconsideration of the 2014 FIP was narrowly limited to the control technology demonstration requirements for SNCR at the Clarkdale and Rillito facilities. When we proposed to revise the FIP, we proposed only “to replace the control technology optimization requirements at the PCC Clarkdale Plant and CPC Rillito Plant with a series of recordkeeping and reporting requirements.” 81 FR 42600, 42603 (June 30, 2016).

Contrary to Earthjustice's contention, our evaluation of the data from the Mojave Plant does not justify re-examining all other cement manufacturing facilities in the United States to establish whether a NOX emission limit achievable through installation of SNCR or SCR should be required for reasonable progress at PCC or CPC. The scope of our revision to the 2014 FIP was limited to evaluating the need for the control technology demonstration requirements to ensure that the NOX emission limits at the Clarkdale and Rillito facilities are appropriate and to ensure that the performance of the SNCR systems at these facilities is optimized. As explained in our proposal, the data from the Mojave Plant demonstrated that SNCR could only achieve a control efficiency of 40 percent. The analysis of data from the Mojave Plant indicated that more stringent SNCR control efficiencies were not achievable at PCC and CPC. Therefore, the additional information from the 2014 FIP control technology demonstration projects is no longer needed because the PCC and CPC SNCR control efficiencies are consistent with the SNCR performance at Mojave. As a result, we no longer consider the SNCR control technology demonstration provisions in the 2014 FIP to be necessary. Therefore, we disagree with Earthjustice that we should consider SCR technology in the context of the FIP revision at issue in this action.

Comment: Earthjustice also commented that the NOX emission data from the Mojave plant's SNCR demonstration period does not warrant elimination of the control technology optimization project requirements for CPC and PCC. Specifically, Earthjustice asserts that because optimization of the SNCR system is a site-specific inquiry, the fact that the Mojave plant's optimization did not result in significant improvement does not mean that SNCR optimization at CPC and PCC would be similarly unsuccessful. As a result, the control technology optimization project requirements should remain in place.

Response: We disagree with the commenter's assertion. We acknowledge that control technology determinations for cement kilns are site specific in nature; however, while a site-specific analysis involves consideration of special circumstances and characteristics pertinent to the source under review, it does not require excluding information from other, similar facilities, and information from these facilities can be highly relevant. For many control technologies with a wide range of performance levels, it is important to take into account their performance at other, similar sources.

In our proposed action to revise the FIP, we specifically noted several site-specific factors indicating that a SNCR system at CPC Rillito Kiln 4 would underperform the SNCR system at the kiln at the Mojave Plant. Given the relatively low SNCR effectiveness on the Mojave Plant, we noted in our proposed action that the final NOX limit for CPC Rillito Kiln 4 was adequately supported by the available data. Aside from a general assertion about the site-specific nature of SNCR optimization, the commenter has not provided any additional information suggesting that retaining the control technology demonstration requirements for Rillito Kiln 4 would result in a more stringent NOX limit, or that a comparison to the Mojave Plant is inappropriate.

Similarly, in our proposed action to revise the 2014 FIP, we noted that the final NOX limit for PCC Clarkdale Kiln 4 is already more stringent than the NOX limit demonstrated at the Mojave Plant, both in terms of emission limit and control effectiveness. Given that a more stringent limit was not demonstrated at the Mojave Plant, we find that the 50 percent control efficiency specified in the 2014 FIP for PCC Clarkdale is still supported, and we do not consider that the information from the control technology demonstration project will support re-evaluating the final NOX limit for PCC Clarkdale Kiln 4. Aside from a general assertion about the site specific nature of SNCR optimization, the commenter has not provided any additional information or detail indicating that information from the control technology demonstration requirements will support re-evaluation of the NOX limit that is achievable, or that a comparison to the Mojave Plant is inappropriate.

Comment: Earthjustice also states that our proposed revision of the 2014 FIP is a “one-way ratchet toward weakening the FIP requirements,” that we are replacing “existing `control optimization' requirements for the two Arizona plants with less stringent recordkeeping and reporting requirements” and that we should not eliminate the control optimization provisions. The comment letter states:

Response: We do not agree that today's rule will “relax” the relevant requirements of the 2014 FIP. When we finalized the 2014 FIP, we acknowledged that data being collected at the Mojave Plant could potentially support more stringent NOX emission limits at the Rillito and Clarkdale facilities. However, data obtained from the Mojave Plant in early 2015 did not support any re-evaluation of the NOX emission limits in the 2014 FIP at the Rillito and Clarkdale facilities. Accordingly, we proposed and are now finalizing the removal of the control technology demonstration requirements in the 2014 FIP. This action does not weaken or relax the NOX emission limits in the 2014 FIP or the requirement to achieve the specified control efficiency when SNCR controls are used. This FIP revision merely removes a process that EPA has determined is no longer necessary. There will not be any additional NOX emissions from these facilities and the 2014 FIP requirements remain fully enforceable.

The EPA is taking final action to revise portions of the Arizona Regional Haze FIP to replace the control technology demonstration requirements at the PCC Clarkdale Plant and the CPC Rillito Plant with a series of recordkeeping and reporting requirements. The revisions to the reporting and recordkeeping conditions we are finalizing in this action, exactly as we proposed them, require documenting and submitting certain design and optimization activities that are part of a typical SNCR system installation. These revisions are detailed in the regulatory text at 40 CFR 52.145(k).

We are also making a minor technical correction to the regulatory text for this action by correcting the equation provided in 40 CFR 52.145(k)(7)(ii)(B)(1) to make the equation consistent with the text in that section.

We find that today's revision will not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the CAA, because the FIP revision will not alter the amount or timing of emission reductions from the Clarkdale Plant or the Rillito Plant.

Finally, the EPA granted a 90-day administrative stay on August 15, 2016 that expires on November 14, 2016.29 In this action, we are deleting the regulatory text in 40 CFR 52.145(n) establishing the administrative stay. We are deleting the regulatory provision because the stay will no longer be in effect after the effective date of our final action on the FIP revision.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). Today's revisions to portions of the Arizona Regional Haze FIP will not alter the amount or timing of emission reductions from the Clarkdale Plant or the Rillito Plant.

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

This action is exempt from review by the Office of Management and Budget (OMB) because it applies to only two facilities and is therefore not a rule of general applicability.

This action does not impose an information collection burden under the PRA. This rule applies to only two facilities. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

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. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Pursuant to 13 CFR 121.201, footnote 1, a firm is small if it is in NAICS 327310 (cement manufacturing) and the concern and its affiliates have no more than 750 employees. CPC is owned by Taiheiyo Cement Corporation, which has more than 750 employees.30 PCC is a division of SRPMIC.31 For the purposes of the RFA, tribal governments are not considered small governments. 5 U.S.C. 601(5). Therefore, SRPMIC is not a small entity.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538. This action may significantly or uniquely affect small governments. As a tribal government, SRPMIC is considered a “small government” under UMRA. See 2 U.S.C. 658(11) and (13). The EPA consulted with SRPMIC concerning the regulatory requirements that might significantly or uniquely affect it.32

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

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action eliminates the SNCR optimization requirements that currently apply to the PCC Clarkdale Plant. The profits from the Clarkdale Plant are used to provide government services to SRPMIC's members.

The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development.33

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

This rulemaking does not involve technical standards. The EPA is not revising any technical standards or imposing any new technical standards in this action.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in section VI above.

Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).

This rule is exempt from the CRA because it is a rule of particular applicability.

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 20, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 CAA section 307(b)(2).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. Background and Overview

On January 22, 2010, (published at 75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.

In a proposed rulemaking published on June 27, 2016 (81 FR 41488), EPA proposed to approve Kentucky's 2010 1-hour NO2 NAAQS infrastructure SIP submission submitted on April 26, 2013, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), and the regulation of minor sources and minor modifications under section 110(a)(2)(C). On March 18, 2015 (80 FR 14019), EPA approved Kentucky's April 26, 2013, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. Therefore, EPA is not taking any action today pertaining to sections 110(a)(2)(C), prong 3 of D(i), and (J). With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA does not yet have a submission before the Agency for action. In regards to Kentucky submission related to prong 4 and the regulation of minor sources and minor modifications under section 110(a)(2)(C), EPA will consider action on these elements in a separate rulemaking. The details of Kentucky's submission and the rationale for EPA's action are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before July 27, 2016. EPA received no adverse comments on the proposed action.

With the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), and the regulation of minor sources and minor modifications under section 110(a)(2)(C), EPA is taking final action to action to approve Kentucky's infrastructure submission submitted on April 26, 2013, for the 2010 1-hour NO2 NAAQS. EPA is taking final action to approve Kentucky's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because the submission is consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 20, 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).

40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us” and “our” refer to the EPA.

On March 10, 2016 (81 FR 12637), under section 110(k) of the Clean Air Act (CAA or “the Act”), the EPA proposed to approve SCAQMD Rule 2449, “Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles” into the South Coast portion of the California SIP. SCAQMD Rule 2449 adopts by reference title 13, chapter 9, section 2449.2 of the California Code of Regulations, “Surplus Off-Road Opt-In for NOX (SOON) Program.” The rule requires certain in-use off-road vehicle fleets meet more stringent requirements in the South Coast area when funding is provided by the District in order to achieve additional reductions of NOX. SCAQMD Rule 2449 was originally adopted by the SCAQMD on May 2, 2008, and submitted to the EPA by the State of California on July 18, 2008. The District adopted revisions to the rule on July 11, 2014, and the amended rule was submitted to the EPA by the State on September 5, 2014. The 2014 revisions incorporated minor administrative updates made to the SOON program by the California Air Resources Board (CARB) in December 2011.

Off-road diesel vehicles collectively represent one of the largest sources of NOX emissions in the South Coast Air Basin. The purpose of Rule 2449 is to achieve surplus NOX reductions from this source category beyond those required under CARB's Off-Road Regulation, with funding provided by the SCAQMD. The SCAQMD's 2012 Air Quality Management Plan relies on NOX reductions from Rule 2449 to attain the one-hour and 1997 eight-hour ozone National Ambient Air Quality Standards. Rule 2449 is expected to achieve 7.5 tons per day (tpd) of NOX reductions in 2023. We note that the EPA is not approving these emission reductions in today's proposed rule; emission reductions or SIP credit from Rule 2449 will be addressed in future EPA actions on attainment plans.

Since our action proposing approval of Rule 2449, SCAQMD has adopted revisions to the SOON program guidelines. The revised guidelines were adopted on March 4, 2016, and sent to CARB for evaluation on August 17, 2016. CARB approved the guidelines on October 6, 2016.1 A copy of this approval letter is found in the docket for this rulemaking action.

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

Pursuant to section 110(k)(3) of the Act and for the reasons stated in our proposed rule, the EPA is approving CARB's September 5, 2014 submittal of SCAQMD Rule 2449, “Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles,” as a revision to the SCAQMD portion of the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of SCAQMD Rule 2449 in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, SCAQMD Rule 2449 available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, 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. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 20, 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)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. Background and Overview

On December 14, 2012, EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3. See 78 FR 3086 (January 15, 2013). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 14, 2015.

In a proposed rulemaking published on August 23, 2016 (81 FR 57544), EPA proposed to approve portions of Georgia's December 14, 2015, SIP submission for the 2012 Annual PM2.5 NAAQS, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), for which EPA did not propose any action. On July 11, 2016, EPA published a proposed rule related to the prong 4 element of Georgia's December 14, 2015, SIP submission for the 2012 PM2.5 NAAQS. See 81 FR 44831. EPA will consider final action on the prong 4 element of Georgia's March 25, 2013, SIP submission for the 2012 PM2.5 NAAQS through a separate rulemaking. With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA is considering this portion of Georgia's December 14, 2015, submission through a separate rulemaking. The details of Georgia's submission and the rationale for EPA's actions for this final rule are explained in the August 23, 2016, proposed rulemaking. Comments on the proposed rulemaking were due on or before September 22, 2016. EPA received no adverse comments.

EPA is taking final action to approve Georgia's infrastructure submission submitted on December 14, 2015, for the 2012 Annual PM2.5 NAAQS for the infrastructure SIP requirements, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2 and 4). EPA is taking final action to approve all other elements of Georgia's infrastructure SIP submissions for the 2012 Annual PM2.5 NAAQS because the submission is consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 20, 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).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On July 20, 2016 (81 FR 47144), EPA proposed to redesignate the Ohio portion of the Campbell-Clermont KY-OH nonattainment area to attainment of the 2010 SO2 National Ambient Air Quality Standard (NAAQS), because Ohio demonstrated that the most culpable source had closed, because the local SO2 monitor was now registering attainment, and because various additional analyses showed that no other sources in or near the area were causing or contributing to violations in the area. The Ohio portion of the nonattainment area consists of Pierce Township in Clermont County. EPA also proposed to approve Ohio's maintenance plan for this area.

EPA received one comment on the proposal. Cheri A. Budzynski commented on August 19, 2016, on behalf of the Ohio Utility Group and its member companies (the Utilities). The comment states that the Utilities support the proposed action and believe that it should be finalized. This was the only comment EPA received on this notice of proposed rulemaking.

On March 18, 2016 (81 FR 14736), EPA published a finding that Ohio had failed to submit a nonattainment State Implementation Plan (SIP) for the Campbell-Clermont KY-OH SO2 nonattainment area by the required deadline of April 4, 2015. Because the main SO2 emission source in the nonattainment area had closed and the design value at the Campbell County, Kentucky, air quality monitor was in attainment of the SO2 standard after 2014, instead of a full nonattainment SIP for this area, Ohio decided to submit a redesignation request. Ohio presented this decision in its April 3, 2015, nonattainment SIP submittal, and submitted its redesignation request on August 11, 2015. EPA's March 18, 2016, finding of failure to submit would require the imposition of sanctions if the SIP requirements are not met within 18 months; that is, by October 18, 2017. Since EPA is finalizing the redesignation of the Ohio portion of the Campbell-Clermont KY-OH SO2 nonattainment area before October 18, 2017, EPA no longer requires Ohio to submit a nonattainment SIP for the area, and the sanctions described in the March 18, 2016, finding will not take effect.

EPA is redesignating Pierce Township, Clermont County, Ohio, to attainment of the 2010 SO2 NAAQS. Pierce Township is the Ohio portion of the Campbell-Clermont KY-OH SO2 nonattainment area. Ohio has met the CAA requirements for redesignation. EPA is also approving Ohio's maintenance plan, submitted on August 11, 2015.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule grants or recognizes an exemption or relieves a restriction, and section 553(d)(3), which allows an effective date less than 30 days after publication as otherwise provided by the agency for good cause found and published with the rule. The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves Ohio of various requirements for the Ohio portion of the Campbell-Clermont area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 20, 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).)

40 CFR parts 52 and 81 are amended as follows:

The information in this SUPPLEMENTARY INFORMATION section of this preamble is organized as follows:

The EPA is publishing this rule without a prior proposed rule because we view this as a non-controversial action and anticipate no adverse comment. This action modifies Procedure 2, sections 10.4(5) and (6), to allow facilities that have reduced their PM emissions since their PM CEMS correlation curve was developed to extend their correlation regression line to the point corresponding to the lowest PM CEMS response obtained during an annual RCA or RRA. This extended correlation regression line will then be used to determine if results of this RCA or RRA meet the criteria specified in section 10.4, paragraphs (5) and (6) of Procedure 2, respectively. This change will ensure that facilities that have reduced their emissions since completing their correlation testing will no longer be penalized because their lower emissions fall outside their initial response range. This action also corrects a typographical error in the introduction to section 10.4, paragraph (6) of Procedure 2. In the “Proposed Rules” section of this Federal Register publication, we are publishing a separate proposed rule to modify Procedure 2. If the EPA receives any significant and relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. In that case, we would address all public comments in any subsequent final rule based on the proposed rule. We will not institute a second comment period on the proposed rule. Any parties interested in commenting must do so at this time. For further information about commenting on the proposed rule, see the ADDRESSES section of this direct final rule.

The entities potentially affected by this rule include any facility that is required to install and operate a PM CEMS under any provision of title 40 of the CFR. 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 of this document.

In addition to being available in the docket, an electronic copy of this rule will also be available online at http://www3.epa.gov/ttn/emc/new.html.

Under section 307(b)(1) of the Clean Air Act (CAA), petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by January 20, 2017. Clean Air Act section 307(d)(7)(B) further provides that “[o]nly an objection to a rule or procedure that was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to reconsider the rule “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section of this direct final rule, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of this action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2) of the CAA).

Rather than file an immediate petition for judicial review of this direct final rule, parties with objections are encouraged to file comments in response to the parallel notice of proposed rulemaking published in the “Proposed Rules” section of today's Federal Register to allow the EPA to withdraw this direct final rule and address the comment(s) in the final rulemaking.

On January 12, 2004, the EPA promulgated Procedure 2—Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources (69 FR 1786). Procedure 2, sections 10.4(5) and (6), contain the requirement that when conducting the annual RCA or RRA QA/QC test procedures, a specified amount of the required number of PM CEMS response values, or data points, must lie within the PM CEMS response range used to develop the PM CEMS correlation curve. In other words, when conducting the annual QA/QC tests, the PM CEMS response values should not be higher or lower than the values used to develop the correlation curve for that PM CEMS. Recently, as PM emission limits have been reduced and facilities have installed more robust PM emission control devices, a number of facilities have found that their PM emissions are lower than their PM CEMS correlation curve. As a result, the facilities are now unable to meet the criteria for a passing the annual Procedure 2 QA/QC tests.

In order to rectify this situation, we are modifying Procedure 2, sections 10.4(5) and (6), to allow facilities to extend their correlation regression line to the lowest PM CEMS response obtained during a RCA or RRA. When a RCA or RRA is performed, if any of the PM CEMS response values are lower than the response range of the existing correlation curve, the facility will take the existing correlation regression line and extend it to the lowest PM CEMS response value found during the annual RCA or RRA. The extension of the existing regression line will be accomplished by using the lowest PM CEMS response value, or x-value, found during the RCA or RRA, solving the regression line equation for the corresponding y-value and then extending the regression line to this new lowest point. This extended correlation regression line will then be used to determine if the RCA or RRA data meet the criteria specified for a RCA or a RRA, in section 10.4(5) and (6), respectively.

This action also corrects a typographical error in the introduction to section 10.4, paragraph (6) of Procedure 2. Paragraph (6) which originally read, “To pass an RRA, you must meet the criteria specified in paragraphs (6)(i) and (ii) . . .”, is being corrected to read: “To pass an RRA, you must meet the criteria specified in paragraphs (6)(i) through (iii) . . .” Without this revision, paragraph (6)(iii) would remain unused in Procedure 2. This typographical correction is necessary to fulfill the intent of Procedure 2, section 10.4(6), when promulgated. See 69 FR 1786.

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

This action does not impose an information collection burden under the PRA. This action does not contain any information collection activities.

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. There are no small entities in the regulated industry for which Procedure 2 applies.

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 imposes no enforceable duty on any state, local or tribal governments, or the private sector.

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

This action does not have tribal implications, as specified in Executive Order 13175. Procedure 2 is applicable to facility owners and operators who are responsible for one or more PM CEMS used for monitoring emissions. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This regulatory action is a procedural change and does not have any impact on human health or the environment.

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

Pursuant to CAA section 307(d)(1)(V), the Administrator determines that this action is subject to provisions of section 307(d). Section 307(d) establishes procedural requirements specific to rulemaking under the CAA. Section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.”

For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0613 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 20, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0613, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of December 17, 2014 (79 FR 75110) (FRL-9918-90), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4F8293) by United Phosphorus, Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406. The petition requested that 40 CFR 180.293 be amended by amending tolerances for residues of the herbicide endothall, in or on cattle, fat from 0.01 to 0.05 parts per million (ppm); cattle, kidney from 0.20 to 0.06 ppm; cattle, liver from 0.10 to 0.05 ppm; cattle, meat from 0.03 to 0.05 ppm; goat, fat from 0.005 to 0.05 ppm; goat, kidney from 0.15 to 0.06 ppm; goat, meat from 0.015 to 0.05 ppm; hog, fat from 0.005 to 0.05 ppm; hog, kidney from 0.10 to 0.06 ppm; hog, meat from 0.01 to 0.05 ppm; milk from 0.03 to 0.01 ppm; poultry, fat from 0.015 to 0.05 ppm; poultry, meat from 0.015 to 0.05 ppm; poultry, meat byproducts from 0.2 to 0.05 ppm; sheep, fat from 0.005 to 0.05 ppm; sheep, kidney from 0.15 to 0.06 ppm; and sheep, meat from 0.015 to 0.05 ppm. That document referenced a summary of the petition prepared by United Phosphorus, Inc., the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has adjusted the proposed tolerance for ruminant kidney from 0.06 to 0.05. The reason for this change is explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for endothall including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with endothall follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Endothall is a caustic chemical with toxicity being the result of a direct degenerative effect on tissue. By acute exposure, endothall is a skin sensitizer and an extreme irritant by the acute oral and ocular routes of administration. The most sensitive effect of endothall following oral administration is direct irritation of the gastrointestinal system. This effect was evident in several species and in several studies. The dog is particularly sensitive to endothall toxicity. Endothall caused gastric epithelial hyperplasia in dogs treated orally with endothall for 52 weeks (a no observed adverse effect level (NOAEL) was not determined). Besides gastric irritant effects, decreased body weight in the dog was also a sensitive effect following 13 weeks of endothall administration. The decreased body weights were most likely attributable to the constant and direct irritation of the gastric lining. In the rat, gastric irritation was noted at a dose level that was 1 to 2 orders of magnitude lower than doses resulting in kidney lesions. Proliferative lesions of the gastric epithelium were observed in F1 parental male and female rats treated orally with endothall in a 2-generation reproduction study (a NOAEL for the parental effects was not identified). In a developmental rat study, pregnant rats exhibited decreased body weight and decreased body weight was also noted in a 90-day dietary study in the rat.

Dermally, endothall destroys the stratum corneum and then the underlying viable epidermis. In the 21-day dermal toxicity study, severe dermal effects were observed at the lowest dose tested. Available studies clearly demonstrate that local irritation (portal of entry effect) is the most sensitive and initial effect.

Acute inhalation toxicity of endothall is low; however, nasal and pulmonary toxicity were evident in the 5-day and 28-day inhalation toxicity studies in the rat including rales, labored respiration, pale lungs (gross necropsy), increased absolute and relative lung weights, subacute inflammation, alveolar proteinosis, and nasal hemorrhage inflammation, erosion, and ulceration.

Endothall does not cause pre-natal toxicity following in utero exposure to rats nor pre-and postnatal toxicity following exposures to rats for 2-generations. In the developmental mouse study, there was severe maternal toxicity (i.e., greater than 30% mortality) at the highest dose tested; at this dose level, a slight increase in vertebral and rib malformations was observed in the offspring indicating that these effects were most likely secondary to severe maternal toxicity. The hazard data for endothall indicate no evidence of quantitative or qualitative increased susceptibility of rat fetuses exposed in utero to endothall in the developmental toxicity studies. In addition, no evidence of quantitative or qualitative increased susceptibility of rat fetuses or neonates was observed in the 2-generation reproduction study.

Available studies showed no evidence of neurotoxicity and do not indicate potential immunotoxicity. Endothall does not belong to the class of compounds (e.g., the organotins, heavy metals, or halogenated aromatic hydrocarbons) that would be expected to be toxic to the immune system. Endothall is classified as “not likely to be carcinogenic to humans” based on lack of evidence of carcinogenicity in mice or rats. It has no mutagenic potential.

Specific information on the studies received and the nature of the adverse effects caused by endothall as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http:www.regulations.gov in document “Endothall: Human Health Risk Assessment in Support of Registration Review, and the Petition to Re-evaluate Tolerances for Livestock, and Remove the Restriction that Prohibits Livestock from Drinking Treated Water” in docket ID number EPA-HQ-OPP-2014-0613.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for endothall used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to endothall, EPA considered exposure under the petitioned-for tolerances as well as all existing endothall tolerances in 40 CFR 180.293. EPA assessed dietary exposures from endothall in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for endothall; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA), conducted from 2003-2008. As to residue levels in food, average residue values have been used for all crops. The residue and processing data used in this assessment are from residue field trials and processing studies designed to produce maximum residues for the purpose of setting tolerances. All treatments in the field trials with irrigated crops were performed by overhead irrigation (i.e. are sprayed on the crops). The processing data available were translated to the important processed commodities of all crops. Where data were not available, DEEM default processing factors were used.

Anticipated residues of meat, milk, poultry, and eggs have been estimated by using the maximum or average residues in feed stuffs as well as the maximum allowed 5 ppm concentration of endothall in livestock drinking water. Tolerance level residues were used for finfish and shellfish.

EPA used average percent crop treated (PCT) data for alfalfa, cotton, and potato, the crops to which endothall is directly applied, as well as PCT data for irrigated crops.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that endothall does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses as follows for irrigated crops: Apple 78%, fresh market apple 84%, processing apple 49%, apple juice 22%, canned apple 55%, barley for grain 40%, corn for grain 21%, dry beans 35%, grape 97%, fresh market grape 99%, processed grape 96%, green peas 42%, oats for grain 8%, peanut for nuts 34%, rice 100%, sorghum for grain 19%, soybean for beans 12%, strawberry 92%, fresh market strawberry 90%, processed strawberry 100%, sugarbeet for sugar 37%, sugarcane for sugar 54%, watermelon 38%, wheat for grain 13%. For direct uses of endothall, PCT estimates used include alfalfa 1%, cotton 1%, and potatoes 2.5%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 to 7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which endothall may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for endothall in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of endothall. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Simple First-Order Degradation the estimated drinking water concentrations (EDWCs) of endothall for chronic exposures for non-cancer assessments are estimated to be 31 ppb for surface water and ground water. This represents a conservative estimate of high-end chronic exposure from endothall from the use most likely to generate the highest exposures (treatment of a reservoir).

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Endothall is currently registered for the following uses that could result in residential exposures: Aquatic applications. EPA assessed residential exposure using the following assumptions: There are no registered residential uses resulting in residential handler exposure to endothall. Therefore, a quantitative residential handler exposure assessment was not performed. Residential post-application exposure/risk estimates were assessed for certain scenarios. The scenarios, routes of exposure and lifestages assessed include inhalation exposure during recreational swimming (both adults and children 3 to < 6 years old) and ingestion of water during recreational swimming (both adults and children 3 to < 6 years old.) The assessment of these lifestages is health protective for the exposures and risk estimates for any other potentially exposed lifestages. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found endothall to share a common mechanism of toxicity with any other substances, and endothall does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that endothall does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There is no evidence of quantitative or qualitative increased susceptibility following prenatal exposure to rats or rabbits in developmental toxicity studies, and pre- and post-natal exposure to rats in the 2-generation reproduction study.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for all scenarios except the chronic dietary assessment. For the assessment of risk following chronic dietary exposure, the FQPA Safety Factor for increased susceptibility to infants and children is reduced to 3X because a lowest observed adverse effect level (LOAEL) established in the 2-generation reproduction study was used for assessing chronic dietary risks. Since a LOAEL was used, a 3X FQPA Safety Factor in the form of UFL is retained for chronic exposure scenarios. A 3X factor (as opposed to a 10X) was determined to be adequate since the severity of the lesions observed at the LOAEL were minimal to mild, and therefore the true NOAEL for this study is likely to be very near the LOAEL value. For assessments other than the chronic dietary assessment, the FQPA safety factor was reduced to 1X for the following reasons:

i. The toxicity database is complete.

ii. There are no concerns for neurotoxicity, and thus no need to retain the 10X for the lack of a developmental neurotoxicity study.

iii. There is no indication of increased susceptibility of rats or rabbits in utero and/or postnatal exposure in the developmental and reproductive toxicity studies;

iv. There are no residual uncertainties identified in the exposure databases. The residential post-application exposure assessments are based upon the 2012 Residential Standard Operating Procedures (SOPs). These assessments of exposure are not likely to underestimate exposure to endothall. There is no residual uncertainty in the exposure database for endothall with respect to dietary exposure. An adequate database with respect to both the nature and magnitude of residues expected in food has been provided. The chronic dietary food exposure assessment is conservative as field trial data along with 100% of crop treated assumptions for some commodities, and default processing factors for some commodities were used. Also, conservative modeled drinking water estimates of exposure were included in the assessments which are likely to exaggerate actual exposures from drinking water. These assessments will not underestimate the exposure and risks posed by endothall.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, endothall is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to endothall from food and water will utilize 90% of the cPAD for children 1 to 2 years of age, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of endothall is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Endothall is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to endothall.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,200 for adults and 210 for children. Because EPA's level of concern for endothall is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Intermediate-term exposure is not expected to result from the residential uses of endothall. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for endothall.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, endothall is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to endothall residues.

Adequate enforcement methodology (GC with microcoulometric nitrogen detection for plants, Method KP-245R0 for livestock, and Method KP-218R0 for fish and plants) is available to enforce the tolerance expression.

The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for endothall.

The registrant requested modification of tolerances for all livestock commodities at the LOQ of the enforcement method (0.01 ppm for milk, 0.05 ppm for the remaining commodities) with the exception of ruminant kidney for which a tolerance of 0.06 ppm was proposed based on residues of 0.051 ppm observed in the cow feeding study. Based on available data and calculations of anticipated residues, EPA has determined that 0.05 ppm would be sufficient to cover residues for all meat, poultry, and egg commodities, including ruminant kidney.

In this rulemaking, EPA is reducing the existing tolerances for cattle, goat, hog, and sheep kidney; cattle, liver; poultry, meat byproducts to 0.05 ppm and for milk to 0.01 ppm. The petitioner requested these reductions. EPA has determined that the reduction is appropriate based on available data and residue levels resulting from registered use patterns. In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures Agreement, EPA notified the WTO of the request to revise these tolerances. In this action, EPA is allowing the existing higher tolerances to remain in effect for 6 months following the publication of this rule in order to allow a reasonable interval for producers in the exporting countries to adapt to the requirements of these modified tolerances. On May 22, 2017, those existing higher tolerances will expire, and the new reduced tolerances for ruminant kidney, cattle, liver and poultry, meat byproducts and milk will remain to cover residues of endothall on those commodities. Before that date, residues of endothall on those commodities would be permitted up to the higher tolerance levels; after that date, residues of endothall on ruminant kidney, cattle, liver and poultry, meat byproducts and milk will need to comply with the new lower tolerance levels. This reduction in tolerance is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods.

Therefore, tolerances are amended for residues of endothall, in or on cattle, fat from 0.01 to 0.05 parts per million (ppm); cattle, kidney from 0.20 to 0.05 ppm; cattle, liver from 0.10 to 0.05 ppm; cattle, meat from 0.03 to 0.05 ppm; goat, fat from 0.005 to 0.05 ppm; goat, kidney from 0.15 to 0.05 ppm; goat, meat from 0.015 to 0.05 ppm; hog, fat from 0.005 to 0.05 ppm; hog, kidney from 0.10 to 0.05 ppm; hog, meat from 0.01 to 0.05 ppm; milk from 0.03 to 0.01 ppm; poultry, fat from 0.015 to 0.05 ppm; poultry, meat from 0.015 to 0.05 ppm; poultry, meat byproducts from 0.2 to 0.05 ppm; sheep, fat from 0.005 to 0.05 ppm; sheep, kidney from 0.15 to 0.05 ppm; and sheep, meat from 0.015 to 0.05 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

GSA is amending the FPMR to make editorial changes to FPMR Parts 101-42 and 101-45. Sections therein should have been removed when the policy migrated from FPMR parts 101-42 and 101-45 (with regards to items requiring special handling) to FMR part 102-40.

GSA indicated in the preamble of FMR Change-2015-01; FPMR Case 2003-101-1; FMR Case 2003-102-4, which was published in the Federal Register at 80 FR 7352, on February 10, 2015, that these sections were migrating from the FPMR to the FMR; but the deletion of these superseded FPMR sections were not specifically enumerated in the list of changes to be made. The end result is that, as of today, there is overlapping policy in both the FPMR and the FMR and the remaining FPMR material is outdated and redundant. Therefore, to remove this duplicative information, GSA is issuing a technical correction to FMR Change-2015-01; FPMR Case 2003-101-1; FMR Case 2003-102-4.

For the reasons set forth in the preamble, 41 CFR parts 101-42 and 101-45 is amended as follows: