Federal Register Vol. 81, No.224,

Federal Register Volume 81, Issue 224 (November 21, 2016)

Page Range83107-83622
FR Document

81_FR_224
Current View
Page and SubjectPDF
81 FR 83619 - Establishing a Community Solutions CouncilPDF
81 FR 83241 - Sunshine Act Meeting; Deletion of Items from MeetingPDF
81 FR 83243 - Sunshine Act MeetingPDF
81 FR 83112 - Special Conditions: Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 Airplanes, Lithium BatteriesPDF
81 FR 83169 - Federal Property Management Regulations; Technical AmendmentsPDF
81 FR 83137 - Allocation of Assets in Single-Employer Plans; Valuation of Benefits and Assets; Expected Retirement AgePDF
81 FR 83163 - Endothall; Pesticide TolerancesPDF
81 FR 83235 - Proposed Consent Decree, Clean Air Act Citizen SuitPDF
81 FR 83237 - Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide RegistrationsPDF
81 FR 83236 - Crowders Mountain Site, Kings Mountain, Gaston County, North Carolina; Notice of SettlementPDF
81 FR 83235 - Section 9 Lease Site, Coconino County, AZ; Notice of Proposed CERCLA Settlement Agreement for Recovery of Past Response CostsPDF
81 FR 83196 - Notice of Solicitation of Applications (NOSA) Inviting Applications for the Rural Economic Development Loan and Grant Programs for Fiscal Year 2017PDF
81 FR 83333 - Annual Determination of Staffing ShortagesPDF
81 FR 83203 - Endangered Species; File No. 19621PDF
81 FR 83205 - New England Fishery Management Council; Public MeetingPDF
81 FR 83204 - Western Pacific Fishery Management Council; Public MeetingPDF
81 FR 83295 - New Postal ProductsPDF
81 FR 83230 - Charter Renewal of Department of Defense Federal Advisory CommitteePDF
81 FR 83254 - Allocations, Common Application, Waivers, and Alternative Requirements for Community Development Block Grant Disaster Recovery GranteesPDF
81 FR 83230 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
81 FR 83275 - Notice of a Federal Advisory Committee; Manufactured Housing Consensus Committee; TeleconferencePDF
81 FR 83327 - Petition for Exemption; Summary of Petition Received; The Boeing CompanyPDF
81 FR 83324 - Notice of Rail Energy Transportation Advisory Committee VacancyPDF
81 FR 83242 - Agency Information Collection Activities: Submission for OMB Review; Comment Request (3064-0200)PDF
81 FR 83201 - Certain Cased Pencils From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission; 2014-2015PDF
81 FR 83246 - Privacy Act of 1974; System of Records NoticePDF
81 FR 83324 - U.S. National Commission for UNESCO; Notice of MeetingPDF
81 FR 83208 - Fisheries of the Gulf of Mexico and South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Stock Identification (ID) Webinar for Gray SnapperPDF
81 FR 83243 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 83243 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 83329 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal SystemPDF
81 FR 83330 - Petition for Waiver of CompliancePDF
81 FR 83329 - Petition for Waiver of CompliancePDF
81 FR 83281 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Special Agent Medical Preplacement (ATF F 2300.10)PDF
81 FR 83281 - Privacy Act of 1974: System of RecordsPDF
81 FR 83331 - Notice of Rate To Be Used for Federal Debt Collection, and Discount and Rebate EvaluationPDF
81 FR 83289 - Crow Butte Resources, Inc.PDF
81 FR 83287 - Report on Changes to Low-Level Waste Burial ChargesPDF
81 FR 83171 - Revisions to Transportation Safety Requirements and Compatibility With International Atomic Energy Agency Transportation StandardsPDF
81 FR 83245 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Preparing a Claim of Categorical Exclusion or an Environmental Assessment for Submission to the Center for Food Safety and Applied NutritionPDF
81 FR 83244 - Report of the Center for Veterinary Medicine Working Group on the Regulation of Animal Drug Availability Act Combination Drug Medicated Feeds; AvailabilityPDF
81 FR 83243 - Substantiation for Structure/Function Claims Made in Infant Formula Labels and Labeling: Draft Guidance for Industry; Reopening of the Comment PeriodPDF
81 FR 83234 - Proposed Agency Information Collection ExtensionPDF
81 FR 83333 - Multiemployer Pension Plan Application To Reduce BenefitsPDF
81 FR 83233 - Secretary of Energy Advisory BoardPDF
81 FR 83233 - Nuclear Energy Advisory CommitteePDF
81 FR 83232 - Chevron U.S.A. Inc.; Application for Blanket Authorization To Export Previously Imported Liquefied Natural Gas on a Short-Term BasisPDF
81 FR 83228 - National Telecommunications and Information Administration; Notice of Public Meeting on Developing the Digital Marketplace for Copyrighted WorksPDF
81 FR 83231 - Availability of the Bonneville Purchasing Instructions (BPI) and Bonneville Financial Assistance Instructions (BFAI)PDF
81 FR 83278 - Endangered Species; Receipt of Applications for PermitPDF
81 FR 83240 - Agency Information Collection Activities: Comment RequestPDF
81 FR 83328 - Buy America Waiver NotificationPDF
81 FR 83278 - Trinity River Adaptive Management Working Group; Public Meeting, Teleconference, and Web-Based MeetingPDF
81 FR 83280 - Notice To Extend the Public Comment Period for the Draft Environmental Impact Statement for the Navajo Generating Station-Kayenta Mine Complex Project, ArizonaPDF
81 FR 83331 - National Advisory Committee on Travel and Tourism Infrastructure; Notice of Public MeetingPDF
81 FR 83184 - Approval and Promulgation of Air Quality Implementation Plans; Oklahoma; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter and Interstate Transport for the 2010 Sulfur Dioxide National Ambient Air Quality StandardsPDF
81 FR 83323 - Forms Submitted to the Office of Management and Budget for Extension of ClearancePDF
81 FR 83325 - Generalized System of Preferences (GSP): Initiation of a Review of Argentina for Possible Designation as a Beneficiary Developing CountryPDF
81 FR 83196 - Meeting of the Council for Native American Farming and RanchingPDF
81 FR 83139 - Safety Zone; Great Egg Harbor Bay, Marmora, NJPDF
81 FR 83279 - Announcement of Public Briefing on Development of a Database of Greenhouse Gas Emissions Associated With Fossil Fuel Extraction From Federal LandsPDF
81 FR 83190 - Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based FuelPDF
81 FR 83277 - 30-Day Notice of Proposed Information Collection: Multifamily Family Self-Sufficiency (MF FSS) Program Escrow Credit DataPDF
81 FR 83253 - 30-Day Notice of Proposed Information Collection: Monthly Report of Excess Income and Annual Report of Uses of Excess IncomePDF
81 FR 83276 - 30-Day Notice of Proposed Information Collection: Federal Labor Standards Questionnaire Complaint Intake FormPDF
81 FR 83332 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 83332 - Proposed Collection; Comment Request for Form 8453-RPDF
81 FR 83206 - Atlantic Highly Migratory Species; Atlantic Shark Management Measures; 2017 Research FisheryPDF
81 FR 83288 - Pressurized Water Reactor Control Rod Ejection and Boiling Water Reactor Control Rod Drop AccidentsPDF
81 FR 83280 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
81 FR 83110 - Federal Employees Health Benefits Program Coverage for Certain Firefighters and Intermittent Emergency Response PersonnelPDF
81 FR 83291 - Excepted ServicePDF
81 FR 83297 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 83174 - Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance and Amendments to FDIC Consumer Protection in Sales of Insurance RegulationPDF
81 FR 83301 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Related to the Payment of a Credit by Execution Access, LLC Based on Volume Thresholds Met on the NASDAQ Options MarketPDF
81 FR 83303 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Change, as Modified by Amendment Nos. 1 and 2, Amending the Co-Location Services Offered by the Exchange To Add Certain Access and Connectivity FeesPDF
81 FR 83313 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change Relating to Opening of Series for Trading on the ExchangePDF
81 FR 83308 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Change Amending the Fees for NYSE MKT BBO and NYSE MKT Trades To Lower the Enterprise FeePDF
81 FR 83297 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the Fees for NYSE BBO and NYSE Trades To Lower the Enterprise FeePDF
81 FR 83320 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Period for the Supplemental Competitive Liquidity Provider ProgramPDF
81 FR 83322 - Self-Regulatory Organizations; BOX Options Exchange LLC; Order Approving a Proposed Rule Change To Amend the Treatment of Quotes To Provide That All Quotes on BOX Are Liquidity Adding OnlyPDF
81 FR 83296 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 83296 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 83170 - Pay Administration Under the Fair Labor Standards ActPDF
81 FR 83107 - Veterans' PreferencePDF
81 FR 83141 - Procedural Regulations for the Copyright Royalty Board: Rates and Terms for Statutory Licenses; Technical AmendmentPDF
81 FR 83324 - Interagency Task Force on Veterans Small Business DevelopmentPDF
81 FR 83230 - President's Advisory Commission on Asian Americans and Pacific IslandersPDF
81 FR 83209 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Air Force Conducting Maritime Weapon Systems Evaluation Program Operational Testing Within the Eglin Gulf Test and Training RangePDF
81 FR 83251 - Office of the Director, National Institutes of Health; Notice of MeetingPDF
81 FR 83252 - National Institute of Environmental Health Sciences; Notice of Closed MeetingPDF
81 FR 83250 - National Institute on Drug Abuse; Notice of Closed MeetingPDF
81 FR 83253 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
81 FR 83250 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
81 FR 83250 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 83251 - National Cancer Institute; Notice of Closed MeetingPDF
81 FR 83251 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 83252 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 83250 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 83238 - 2017 Exim Bank Advisory Committee Nomination ProcessPDF
81 FR 83142 - Air Plan Approval/Disapproval; AL Infrastructure Requirements for the 2010 1-Hour NO2PDF
81 FR 83202 - Marine Mammals; File No. 20443PDF
81 FR 83204 - Marine Mammals and Endangered Species; File Nos. 13927, 16553, and 20532PDF
81 FR 83156 - Air Quality Plan; Georgia; Infrastructure Requirements for the 2012 PM2.5PDF
81 FR 83154 - Revisions to the California State Implementation Plan; South Coast Air Quality Management District; Control of Oxides of Nitrogen Emissions From Off-Road Diesel VehiclesPDF
81 FR 83158 - Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment AreaPDF
81 FR 83160 - Revisions to Procedure 2-Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary SourcesPDF
81 FR 83189 - Revisions to Procedure 2-Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary SourcesPDF
81 FR 83114 - Clarifications and Revisions to Military Aircraft, Gas Turbine Engines and Related Items License RequirementsPDF
81 FR 83126 - Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Categories VIII and XIXPDF
81 FR 83182 - Airworthiness Directives; Airbus Helicopters Deutschland GmbHPDF
81 FR 83440 - U.S. Fish and Wildlife Service Mitigation PolicyPDF
81 FR 83336 - Proposed Exemptions From Certain Prohibited Transaction RestrictionsPDF
81 FR 83152 - Air Plan Approval; KY Infrastructure Requirements for the 2010 1-Hour NO2PDF
81 FR 83284 - Privacy Act System of Records, Amended System of RecordsPDF
81 FR 83135 - Rule Exempting an Amended System of Records From Certain Provisions of the Privacy ActPDF
81 FR 83144 - Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze Federal Implementation Plan; ReconsiderationPDF
81 FR 83180 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF
81 FR 83556 - Safety Standard for Portable GeneratorsPDF
81 FR 83494 - Exemptions To Facilitate Intrastate and Regional Securities OfferingsPDF

Issue

81 224 Monday, November 21, 2016 Contents Agriculture Agriculture Department See

Rural Business-Cooperative Service

NOTICES Meetings: Council for Native American Farming and Ranching, 83196 2016-27915
Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Special Agent Medical Preplacement, 83281 2016-27951 Bonneville Bonneville Power Administration NOTICES Bonneville Purchasing Instructions and Bonneville Financial Assistance Instructions, 83231-83232 2016-27933 Coast Guard Coast Guard RULES Safety Zones: Great Egg Harbor Bay, Marmora, NJ, 83139-83141 2016-27914 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Consumer Product Consumer Product Safety Commission PROPOSED RULES Safety Standard for Portable Generators, 83556-83615 2016-26962 Copyright Royalty Board Copyright Royalty Board RULES Procedural Regulations: Rates and Terms for Statutory Licenses; Technical Amendment, 83141-83142 2016-27885 Defense Department Defense Department NOTICES Charter Amendments, Establishments or Renewals: Federal Advisory Committees, 83230 2016-27968 2016-27970 Education Department Education Department NOTICES Meetings: President's Advisory Commission on Asian Americans and Pacific Islanders, 83230-83231 2016-27882 Employee Benefits Employee Benefits Security Administration NOTICES Proposed Exemptions from Certain Prohibited Transaction Restrictions, 83336-83438 2016-27563 Energy Department Energy Department See

Bonneville Power Administration

See

Energy Efficiency and Renewable Energy Office

NOTICES Meetings: Nuclear Energy Advisory Committee, 83233 2016-27936 Secretary of Energy Advisory Board, 83233-83234 2016-27937 Requests under Blanket Authorizations: Chevron U.S.A. Inc., 83232-83233 2016-27935
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83234-83235 2016-27939 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alabama; Infrastructure Requirements for the 2010 1-hour NO2 NAAQS, 83142-83144 2016-27862 Arizona; Regional Haze Federal Implementation Plan; Reconsideration, 83144-83152 2016-27422 California—South Coast Air Quality Management District; Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles, 83154-83156 2016-27853 Georgia; Infrastructure Requirements for the 2012 PM2.5 NAAQS, 83156-83157 2016-27857 Kentucky; Infrastructure Requirements for the 2010 1-hour NO2 NAAQS, 83152-83154 2016-27538 Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment Area, 83158-83160 2016-27852 Pesticide Tolerances: Endothall, 83163-83169 2016-27984 Quality Assurance Requirements: Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources, 83160-83163 2016-27849 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Oklahoma; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter and Interstate Transport for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, 83184-83189 2016-27924 Quality Assurance Requirements: Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources, 83189-83190 2016-27847 NOTICES Proposed Consent Decree, Clean Air Act Citizen Suit, 83235-83236 2016-27983 Proposed Settlement Agreements for Recovery of Past Response Costs: Section 9 Lease Site, Coconino County, AZ, 83235 2016-27978 Requests to Voluntarily Cancel Certain Pesticide Registrations, 83237-83238 2016-27982 Settlements: Crowders Mountain Site, Kings Mountain, Gaston County, North Carolina, 83236 2016-27979 Export Import Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83240-83241 2016-27930 Requests for Nominations: 2017 Advisory Committee, 83238-83240 2016-27870 Federal Aviation Federal Aviation Administration RULES Special Conditions: Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 Airplanes, Lithium Batteries, 83112-83114 2016-28013 PROPOSED RULES Airworthiness Directives: Airbus Helicopters Deutschland GmbH, 83182-83184 2016-27765 Gulfstream Aerospace Corp. Airplanes, 83180-83182 2016-27309 NOTICES Petitions for Exemption; Summaries: Boeing Co., 83327-83328 2016-27964 2016-27965 Federal Communications Federal Communications Commission NOTICES Meetings; Sunshine Act, 83241-83242 2016-28115 Federal Deposit Federal Deposit Insurance Corporation PROPOSED RULES Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance, etc., 83174-83180 2016-27898 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83242 2016-27962 Federal Highway Federal Highway Administration NOTICES Buy America Waivers, 83328-83329 2016-27928 2016-27929 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 83243 2016-28051 Federal Railroad Federal Railroad Administration NOTICES Applications: Approval of Discontinuance or Modification of a Railroad Signal System, 83329-83330 2016-27954 Petitions for Waivers of Compliance, 83329-83331 2016-27952 2016-27953 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 83243 2016-27956 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 83243 2016-27955 Fiscal Fiscal Service NOTICES Rate to Be Used for Federal Debt Collection, and Discount and Rebate Evaluation, 83331-83332 2016-27947 Fish Fish and Wildlife Service NOTICES Endangered Species Permit Applications, 83278-83279 2016-27931 Meetings: Trinity River Adaptive Management Working Group, 83278 2016-27927 Service Mitigation Policy, 83440-83492 2016-27751 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Preparing a Claim of Categorical Exclusion or an Environmental Assessment for Submission to the Center for Food Safety and Applied Nutrition, 83245-83246 2016-27943 Guidance: Substantiation for Structure/Function Claims Made in Infant Formula Labels and Labeling, 83243-83244 2016-27941 Report: Center for Veterinary Medicine Working Group on the Regulation of Animal Drug Availability Act Combination Drug Medicated Feeds, 83244-83245 2016-27942 General Services General Services Administration RULES Federal Property Management Regulations, 83169 2016-28010 Geological Geological Survey NOTICES Meetings: Development of a Database of Greenhouse Gas Emissions Associated with Fossil Fuel Extraction from Federal Lands; Public Briefing, 83279-83280 2016-27912 Health and Human Health and Human Services Department See

Food and Drug Administration

See

National Institutes of Health

NOTICES Privacy Act; Systems of Records, 83246-83250 2016-27959
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Labor Standards Questionnaire Complaint Intake Form, 83276-83277 2016-27908 Monthly Report of Excess Income and Annual Report of Uses of Excess Income, 83253-83254 2016-27909 Multifamily Family Self-Sufficiency Program Escrow Credit Data, 83277-83278 2016-27910 Allocations, Common Application, Waivers, and Alternative Requirements for Community Development Block Grant Disaster Recovery Grantees, 83254-83275 2016-27969 Meetings: Manufactured Housing Consensus Committee; Teleconference, 83275-83276 2016-27967 Industry Industry and Security Bureau RULES Military Aircraft, Gas Turbine Engines and Related Items License Requirements; Clarifications and Revisions, 83114-83126 2016-27777 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

National Park Service

See

Reclamation Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83332-83333 2016-27905 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regulation Project, 83332 2016-27906 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Cased Pencils from the People's Republic of China; Administrative Review and Partial Rescission; 2014-2015, 83201-83202 2016-27960 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

Labor Department Labor Department See

Employee Benefits Security Administration

Library Library of Congress See

Copyright Royalty Board

National Credit National Credit Union Administration NOTICES Privacy Act; Systems of Records, 83281-83284 2016-27948 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 83250-83252 2016-27871 2016-27872 2016-27873 National Cancer Institute, 83251 2016-27874 National Heart, Lung, and Blood Institute, 83250 2016-27875 2016-27876 National Institute of Allergy and Infectious Diseases, 83253 2016-27877 National Institute of Environmental Health Sciences, 83252-83253 2016-27879 National Institute on Drug Abuse, 83250 2016-27878 Recombinant DNA Advisory Committee, 83251-83252 2016-27880 National Labor National Labor Relations Board RULES Exempt Amended System of Records: Certain Provisions of the Privacy Act, 83135-83137 2016-27487 NOTICES Privacy Act; Systems of Records, 83284-83287 2016-27488 National Oceanic National Oceanic and Atmospheric Administration NOTICES Atlantic Highly Migratory Species: Atlantic Shark Management Measures; 2017 Research Fishery, 83206-83208 2016-27904 Meetings: Fisheries of the Gulf of Mexico and South Atlantic Southeast Data, Assessment, and Review Stock Identification Webinar for Gray Snapper, 83208-83209 2016-27957 New England Fishery Management Council, 83205-83206 2016-27974 Western Pacific Fishery Management Council, 83204 2016-27973 Permits: Endangered Species; File No. 19621, 83203-83204 2016-27975 Marine Mammals and Endangered Species; File Nos. 13927, 16553, and 20532, 83204-83205 2016-27860 Marine Mammals; File No. 20443, 83202-83203 2016-27861 Takes of Marine Mammals: Taking Marine Mammals Incidental to the U.S. Air Force Conducting Maritime Weapon Systems Evaluation Program Operational Testing within the Eglin Gulf Test and Training Range, 83209-83228 2016-27881 National Park National Park Service NOTICES National Register of Historic Places: Notification of Pending Nominations and Related Actions, 83280 2016-27902 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Revisions to Transportation Safety Requirements and Compatibility with International Atomic Energy Agency Transportation Standards; Meetings, 83171-83174 2016-27944 NOTICES Exemptions: Crow Butte Resources, Inc., 83289-83291 2016-27946 Guidance: Pressurized Water Reactor Control Rod Ejection and Boiling Water Reactor Control Rod Drop Accidents, 83288-83289 2016-27903 Report on Changes to Low-Level Waste Burial Charges, 83287-83288 2016-27945 Patent Patent and Trademark Office NOTICES Meetings: Developing the Digital Marketplace for Copyrighted Works, 83228-83229 2016-27934 Pension Benefit Pension Benefit Guaranty Corporation RULES Allocation of Assets in Single-Employer Plans: Valuation of Benefits and Assets; Expected Retirement Age, 83137-83139 2016-27986 Personnel Personnel Management Office RULES Federal Employees Health Benefits Program Coverage for Certain Firefighters and Intermittent Emergency Response Personnel, 83110-83112 2016-27901 Veterans' Preference, 83107-83109 2016-27886 PROPOSED RULES Pay Administration under the Fair Labor Standards Act, 83170-83171 2016-27887 NOTICES Excepted Service, 83291-83295 2016-27900 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Hazardous Materials: Protecting our Infrastructure of Pipelines and Enhancing Safety Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel, 83190-83195 2016-27911 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 83295-83296 2016-27972 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 83296 2016-27888 Priority Mail Negotiated Service Agreement, 83296-83297 2016-27889 2016-27890 2016-27899 Presidential Documents Presidential Documents EXECUTIVE ORDERS Committees; Establishment, Renewal, Termination, etc.: Community Solutions Council; Establishment (EO 13748), 83617-83622 2016-28203 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Navajo Generating Station-Kayenta Mine Complex Project, AZ, 83280-83281 2016-27926 Rural Business Rural Business-Cooperative Service NOTICES Requests for Applications: Rural Economic Development Loan and Grant Programs for Fiscal Year 2017, 83196-83201 2016-27977 Securities Securities and Exchange Commission RULES Exemptions to Facilitate Intrastate and Regional Securities Offerings, 83494-83554 2016-26348 NOTICES Self-Regulatory Organizations; Bats BZX Exchange, Inc., 83320-83322 2016-27892 BOX Options Exchange LLC, 83322-83323 2016-27891 C2 Options Exchange, Inc., 83313-83319 2016-27895 Self-Regulatory Organizations; Proposed Rule Changes: NASDAQ Stock Market, LLC, 83301-83303 2016-27897 New York Stock Exchange, LLC, 83297-83301, 83303-83308 2016-27893 2016-27896 NYSE MKT, LLC, 83308-83312 2016-27894 Selective Selective Service System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83323-83324 2016-27920 2016-27921 Small Business Small Business Administration NOTICES Meetings: Interagency Task Force on Veterans Small Business Development, 83324 2016-27884 State Department State Department RULES International Traffic in Arms: U.S. Munitions List Categories VIII and XIX, 83126-83135 2016-27775 NOTICES Meetings: National Commission for the United Nations Educational, Scientific, and Cultural Organization, 83324 2016-27958 Surface Transportation Surface Transportation Board NOTICES Requests for Nominations: Rail Energy Transportation Advisory Committee, 83324-83325 2016-27963 Trade Representative Trade Representative, Office of United States NOTICES Generalized System of Preferences: Initiation of a Review of Argentina for Possible Designation as a Beneficiary Developing Country, 83325-83327 2016-27917 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

Pipeline and Hazardous Materials Safety Administration

NOTICES Meetings: National Advisory Committee on Travel and Tourism Infrastructure, 83331 2016-27925
Treasury Treasury Department See

Fiscal Service

See

Internal Revenue Service

NOTICES Applications: Reduce Benefits Multiemployer Pension Plan, 83333 2016-27938
Veteran Affairs Veterans Affairs Department NOTICES Annual Determination of Staffing Shortages, 83333-83334 2016-27976 Separate Parts In This Issue Part II Labor Department, Employee Benefits Security Administration, 83336-83438 2016-27563 Part III Interior Department, Fish and Wildlife Service, 83440-83492 2016-27751 Part IV Securities and Exchange Commission, 83494-83554 2016-26348 Part V Consumer Product Safety Commission, 83556-83615 2016-26962 Part VI Presidential Documents, 83617-83622 2016-28203 Reader Aids

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

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81 224 Monday, November 21, 2016 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 211 RIN 3206-AM79 Veterans' Preference AGENCY:

U.S. Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The U.S. Office of Personnel Management (OPM) is issuing a final rule that implements statutory changes pertaining to veterans' preference. These changes were made in response to the Hubbard Act, which broadened the category of individuals eligible for veterans' preference; and to implement the VOW (Veterans Opportunity to Work) to Hire Heroes Act of 2011, which requires Federal agencies to treat certain active duty service members as preference eligibles for purposes of an appointment to the competitive service, even though the service members have not been discharged or released from active duty and do not have a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty. In addition, OPM has updated its regulations to reference existing requirements for the alternative ranking and selection procedure called “category rating,” and to add a reference to the end date of Operation Iraqi Freedom, which affected veteran status and preference eligibility. This action aligns OPM's regulations with existing statutes.

DATES:

This rule will be effective December 21, 2016.

FOR FURTHER INFORMATION CONTACT:

Michael Gilmore by telephone on (202) 606-2429, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by email at [email protected]

SUPPLEMENTARY INFORMATION:

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.

Discussion of Comments Operation Iraqi Freedom

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.

Implementation of the VOW (Veterans Opportunity To Work) To Hire Heroes Act

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.

Implementation of the Hubbard Act

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.

Implementation of Category Rating

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).

General Comments

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.

E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

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.

List of Subjects in 5 CFR Part 211

Government employees, Veterans.

U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

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

PART 211—VETERAN PREFERENCE Sec. 211.101 Purpose. 211.102 Definitions. 211.103 Administration of preference. Authority:

5 U.S.C. 1302, 2108, 2108a.

§ 211.101 Purpose.

The purpose of this part is to define veterans' preference and the administration of preference in Federal employment. (5 U.S.C. 2108, 2108a)

§ 211.102 Definitions.

For the purposes of preference in Federal employment, the following definitions apply:

(a) Veteran means a person who has been discharged or released from active duty in the armed forces under honorable conditions, or who has a certification as defined in paragraph (h) of this section, if the active duty service was performed:

(1) In a war;

(2) In a campaign or expedition for which a campaign badge has been authorized;

(3) During the period beginning April 28, 1952, and ending July 1, 1955;

(4) For more than 180 consecutive days, other than for training, any part of which occurred during the period beginning February 1, 1955, and ending October 14, 1976;

(5) During the period beginning August 2, 1990, and ending January 2, 1992; or

(6) For more than 180 consecutive days, other than for training, any part of which occurred during the period beginning September 11, 2001, and ending on August 31, 2010, the last day of Operation Iraqi Freedom.

(b) Disabled veteran means a person who has been discharged or released from active duty in the armed forces under honorable conditions performed at any time, or who has a certification as defined in paragraph (h) of this section, and who has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or a pension because of a statute administered by the Department of Veterans Affairs or a military department.

(c) Sole survivor veteran means a person who was discharged or released from a period of active duty after August 29, 2008, by reason of a sole survivorship discharge (as that term is defined in 10 U.S.C. 1174(i)), and who meets the definition of a “veteran” in paragraph (a) of this section, with the exception that he or she is not required to meet any of the length of service requirements prescribed by paragraph (a).

(d) Preference eligible means a veteran, disabled veteran, sole survivor veteran, spouse, widow, widower, or mother who meets the definition of “preference eligible” in 5 U.S.C. 2108.

(1) Preference eligibles other than sole survivor veterans are entitled to have 5 or 10 points added to their earned score on a civil service examination in accordance with 5 U.S.C. 3309.

(2) Under numerical ranking and selection procedures for competitive service hiring, preference eligibles are entered on registers in the order prescribed by § 332.401 of this chapter.

(3) Under excepted service examining procedures in part 302 of this chapter, preference eligibles are listed ahead of persons with the same ratings who are not preference eligibles, or listed ahead of non-preference eligibles if numerical scores have not been assigned.

(4) Under alternative ranking and selection procedures, i.e., category rating, preference eligibles are listed ahead of individuals who are not preference eligibles in accordance with 5 U.S.C. 3319.

(5) Preference eligibles, other than those who have not yet been discharged or released from active duty, are accorded a higher retention standing than non-preference eligibles in the event of a reduction in force in accordance with 5 U.S.C. 3502.

(6) Veterans' preference does not apply, however, to inservice placement actions such as promotions.

(e) Armed forces means the United States Army, Navy, Air Force, Marine Corps, and Coast Guard.

(f) Active duty or active military duty:

(1) For veterans defined in paragraphs (a)(1) through (3) and disabled veterans defined in paragraph (b) of this section, means active duty with military pay and allowances in the armed forces, and includes training, determining physical fitness, and service in the Reserves or National Guard; and

(2) For veterans defined in paragraphs (a)(4) through (6) of this section, means full-time duty with military pay and allowances in the armed forces, and does not include training, determining physical fitness, or service in the Reserves or National Guard.

(g) Discharged or released from active duty means with either an honorable or general discharge from active duty in the armed forces. The Department of Defense is responsible for administering and defining military discharges.

(h) Certification means any written document from the armed forces that certifies the service member is expected to be discharged or released from active duty service in the armed forces under honorable conditions not later than 120 days after the date the certification is submitted for consideration in the hiring process, at the time and in the manner prescribed by the applicable job opportunity announcement. Prior to appointment, the service member's character of service and qualifying discharge or release must be verified through a DD form 214 or equivalent documentation.

§ 211.103 Administration of preference.

Agencies are responsible for making all preference determinations except for preference based on a common law marriage. Such a claim must be referred to OPM's General Counsel for decision.

[FR Doc. 2016-27886 Filed 11-18-16; 8:45 am] BILLING CODE 6325-39-P
OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 890 RIN 3206-AM66 Federal Employees Health Benefits Program Coverage for Certain Firefighters and Intermittent Emergency Response Personnel AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The Office of Personnel Management (OPM) is issuing a final rule to amend the Federal Employees Health Benefits (FEHB) Program regulations to make certain firefighters hired under a temporary appointment and certain intermittent emergency response personnel eligible to be enrolled in a health benefits plan under the FEHB Program. These amendments were the subject of interim rules published on July 19, 2012 and November 14, 2012.

DATES:

This rule is effective November 21, 2016.

FOR FURTHER INFORMATION CONTACT:

Michael W. Kaszynski, Senior Policy Analyst at [email protected] or (202) 606-0004.

SUPPLEMENTARY INFORMATION:

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.

Regulatory Flexibility Act

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.

Executive Orders 13563 and 12866, Regulatory Review

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

Federalism

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.

List of Subjects in 5 CFR Part 890

Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.

U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

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

PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 1. The authority citation for part 890 continues to read as follows: Authority:

5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.

2. Section 890.102 is amended by revising paragraphs (h) and (i) to read as follows:
§ 890.102 Coverage.

(h) 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.

(i) Notwithstanding paragraphs (c)(1) through (3) of this section, upon request by the employing agency, OPM may grant eligibility to employees performing similar types of emergency response services to enroll in a health benefits plan under this part. In granting eligibility requests, OPM may limit the coverage of intermittent employees under a health benefits plan to the periods of time during which they are in a pay status.

[FR Doc. 2016-27901 Filed 11-18-16; 8:45 am] BILLING CODE 6325-63-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. FAA-2016-9001; Special Conditions No. 23-278-SC] Special Conditions: Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 Airplanes, Lithium Batteries AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions.

SUMMARY:

These special conditions are issued for the Pilatus Aircraft, Ltd., Model PC-12, PC-12/45, and PC-12/47 airplanes. This airplane as modified by Finnoff Aviation will have a novel or unusual design feature associated with the installation of a rechargeable lithium battery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

These special conditions are effective November 21, 2016 and are applicable on November 10, 2016.

FOR FURTHER INFORMATION CONTACT:

Ruth Hirt, Federal Aviation Administration, Programs and Procedures, ACE-114, Small Airplane Directorate, Aircraft Certification Service, 901 Locust; Kansas City, Missouri 64106; telephone (816) 329-4108; facsimile (816) 329-4090.

SUPPLEMENTARY INFORMATION: Background

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.

Type Certification Basis

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.

1http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgMakeModel.nsf/0/6BCB00B1F3CA4EF886257FED0069EF2D?OpenDocument.

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.

Novel or Unusual Design Features

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.

Discussion

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

2http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/719e41e1d26099108625795d005d5302/$FILE/23.1309-1E.pdf.

3http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/e35fbc0060e2159186257bbe00719fb3/$FILE/AC20-115C.pdf.

4http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/6d4ae0bf1bde3579862570360055d119/$FILE/AC%2020-152.pdf.

(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.

Discussion of Comments

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.

Applicability

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.

5http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgMakeModel.nsf/0/6BCB00B1F3CA4EF886257FED0069EF2D?OpenDocument.

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.

Conclusion

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.

List of Subjects in 14 CFR Part 23

Aircraft, Aviation safety, Signs and symbols.

Citation

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for 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.

Note: The term “sufficiently charged” means that the battery will retain enough of a charge, expressed in ampere-hours, to ensure that the battery cells will not be damaged. A battery cell may be damaged by lowering the charge below a point where there is a reduction in the ability to charge and retain a full charge. This reduction would be greater than the reduction that may result from normal operational degradation.

(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.

Issued in Kansas City, Missouri, on November 10, 2016. Mel Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-28013 Filed 11-18-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 770 and 774 [Docket No. 151030999-6552-02] RIN 0694-AG76 Clarifications and Revisions to Military Aircraft, Gas Turbine Engines and Related Items License Requirements AGENCY:

Bureau of Industry and Security, Department of Commerce.

ACTION:

Final rule.

SUMMARY:

This rule modifies the Commerce Control List (CCL) entries for two types of items: Military aircraft and related items, and military gas turbine engines and related items. The rule adds clarifying text to the descriptions of the types of military aircraft controlled on the CCL. The lists of items that are subject only to the anti-terrorism reason for control are clarified and expanded. This rule, which is being published simultaneously with a rule by the Department of State, is based on a review of Categories VIII and XIX of the United States Munitions List (USML). This rule and the related Department of State rule are part of a plan to review rules published as part of the Export Control Reform Initiative (ECRI). This rule also furthers the retrospective regulatory review directed by the President in Executive Order 13563.

DATES:

This rule is effective December 31, 2016.

FOR FURTHER INFORMATION CONTACT:

Thomas DeFee or Jeffrey Leitz in the Office of Strategic Industries and Economic Security, Munitions Control Division by telephone at (202) 482-4506 or by email at [email protected] or [email protected]

SUPPLEMENTARY INFORMATION:

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.

Public Comments on the Proposed Rule

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.

Technical and Conforming Changes

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.

Export Administration Act

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.

Rulemaking Requirements

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.

List of Subjects 15 CFR Part 770

Exports.

15 CFR Part 774

Exports, Reporting and recordkeeping requirements.

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:

PART 770-[AMENDED] 1. The authority citation for 15 CFR part 770 continues to read as follows: Authority:

50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016).

2. Section 770.2 is amended by adding paragraph (n) to read as follows:
§ 770.2 Item interpretations.

(n) Interpretation 14: Unfinished “600 series” commodities. Forgings, castings, and other unfinished products, such as extrusions and machined bodies, 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 (“End Items,” “Equipment,” “Accessories,” “Attachments,” “Parts,” “Components” and “Systems”) “600 series” ECCN are controlled in that “600 series” ECCN.

PART 774—[AMENDED] 3. The authority citation for 15 CFR part 774 continues to read as follows: Authority:

50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016).

Supplement No. 1 to Part 774—The Commerce Control List ECCN 0A604—[Amended] 4. In in Supplement No. 1 to part 774, ECCN 0A604, remove Note 1 to 0A604.x and redesignate Note 2 to 0A604.x as Note to 0A604.x. ECCN 0A614—[Amended] 5. In ECCN 0A614, remove Note 3 to 0A614. 6. In ECCN 3A611, in the “List of Items Controlled” section, “Items” paragraph, revise paragraph .x and revise paragraph .y, introductory text, to read as follows: 3A611 Military electronics, as follows (see List of Items Controlled). List of Items Controlled Items:

x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by this entry or for an article controlled by USML Category XI, and not enumerated or described in any USML category or in any paragraph other than the .x paragraph of another 600 series ECCN or in paragraph .y of this entry.

Note 1 to ECCN 3A611.x:

ECCN 3A611.x includes “parts,” “components,” “accessories,” and “attachments” “specially designed” for a radar, telecommunications, acoustic system or equipment or computer “specially designed” for military application that are neither controlled in any USML category nor controlled in any paragraph other than the .x paragraph of another “600 series” ECCN.

Note 2 to ECCN 3A611.x:

ECCN 3A611.x controls “parts” and “components” “specially designed” for underwater sensors or projectors controlled by USML Category XI(c)(12) containing single-crystal lead magnesium niobate lead titanate (PMN-PT) based piezoelectrics.

Note 3 to ECCN 3A611.x:

“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.

y. Specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control in a “600 series” ECCN or a defense article and not elsewhere specified in any paragraph other than the .y paragraph of a “600 series” ECCN or the USML as follows, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefore:

7. In ECCN 8A992, revised the related controls paragraph to read as follows: 8A992 Vessels, marine systems or equipment, not controlled by 8A001 or 8A002, and “specially designed” “parts” and “components” therefor, and marine boilers and “parts,” “components,” “accessories,” and “attachments” therefor (see List of Items Controlled). List of Items Controlled Related Controls: 1. See also 8A002. 2. Marine gas turbine engines are not controlled in paragraph .g of this entry. See ECCN 9A619 for possible controls on marine gas turbine engines specially designed for a military use. See ECCN 9A002 for possible controls on marine gas turbine engines not specially designed for a military use. Marine gas turbine engines subject to the EAR that are not controlled in ECCNs 9A002 or 9A619 are designated EAR99. 8. Revise ECCN 9A115 to read as follows: 9A115 Apparatus, devices and vehicles, designed or modified for the transport, handling, control, activation and launching of rockets, missiles, and unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km. (Some of these items are controlled in ECCN 9A610; others are “subject to the ITAR.” See 22 CFR parts 120 through 130.) ECCN 9A604—[Amended] 9. In ECCN 9A604, remove Note 1 to 9A604.x and redesignate Note 2 to 9A604.x as Note to 9A604.x. 10. In ECCN 9A610, revise the “Control(s)” table in the “License Requirements” section and the “List of Items Controlled” section to read as follows: 9A610 Military aircraft and related commodities, other than those enumerated in 9A991.a (see List of Items Controlled). License Requirements Control(s) Country Chart
  • (See Supp.
  • No. 1 to
  • part 738)
  • NS applies to entire entry except: 9A610.b; parts and components controlled in 9A610.x if being exported or reexported for use in an aircraft controlled in 9A610.b; and 9A610.y NS Column 1 RS applies to entire entry except: 9A610.b; parts and components controlled in 9A610.x if being exported or reexported for use in an aircraft controlled in 9A610.b; and 9A610.y RS Column 1 MT applies to 9A610.t, .u, .v, and .w MT Column 1 AT applies to entire entry AT Column 1. UN applies to entire entry except 9A610.y See § 746.1(b) for UN controls.
    List of Items Controlled Related Controls: (1) Military aircraft and related articles that are enumerated in USML Category VIII, and technical data (including software) directly related thereto, are subject to the ITAR. (2) See ECCN 0A919 for controls on foreign-made “military commodities” that incorporate more than a de minimis amount of U.S.-origin “600 series” controlled content. (3) See USML Category XIX and ECCN 9A619 for controls on military aircraft gas turbine engines and related items. Related Definitions: In paragraph .y of this entry, the term `fluid' includes liquids and gases. Items: a. `Military Aircraft' “specially designed” for a military use that are not enumerated in USML paragraph VIII(a). Note 1:

    For purposes of paragraph .a the term `military aircraft' means the LM-100J aircraft and any aircraft “specially designed” for a military use that are not enumerated in USML paragraph VIII(a). The term includes: Trainer aircraft; cargo aircraft; utility fixed wing aircraft; military helicopters; observation aircraft; military non-expansive balloons and other lighter than air aircraft; and unarmed military aircraft, regardless of origin or designation. Aircraft with modifications made to incorporate safety of flight features or other FAA or NTSB modifications such as transponders and air data recorders are “unmodified” for the purposes of this paragraph .a.

    Note 2:

    9A610.a does not control ‘military aircraft' that:

    a. Were first manufactured before 1946;

    b. Do not incorporate defense articles enumerated or otherwise described on the U.S. Munitions List, unless the items are required to meet safety or airworthiness standards of a Wassenaar Arrangement Participating State; and

    c. Do not incorporate weapons enumerated or otherwise described on the U.S. Munitions List, unless inoperable and incapable of being returned to operation.

    b. L-100 aircraft manufactured prior to 2013.

    c.-d. [Reserved]

    e. Mobile aircraft arresting and engagement runway systems for aircraft controlled by either USML Category VIII(a) or ECCN 9A610.a

    f. Pressure refueling equipment and equipment that facilitates operations in confined areas, “specially designed” for aircraft controlled by either USML paragraph VIII(a) or ECCN 9A610.a.

    g. Aircrew life support equipment, aircrew safety equipment and other devices for emergency escape from aircraft controlled by either USML paragraph VIII(a) or ECCN 9A610.a.

    h. Parachutes, paragliders, complete parachute canopies, harnesses, platforms, electronic release mechanisms, “specially designed” for use with aircraft controlled by either USML paragraph VIII(a) or ECCN 9A610.a, and “equipment” “specially designed” for military high altitude parachutists, such as suits, special helmets, breathing systems, and navigation equipment.

    i. Controlled opening equipment or automatic piloting systems, designed for parachuted loads.

    j. Ground effect machines (GEMS), including surface effect machines and air cushion vehicles, “specially designed” for use by a military.

    k. through s. [Reserved]

    t. Composite structures, laminates, and manufactures thereof “specially designed” for unmanned aerial vehicles controlled under USML Category VIII(a) with a range equal to or greater than 300 km.

    Note to paragraph .t:

    Composite structures, laminates, and manufactures thereof “specially designed” for unmanned aerial vehicles controlled under USML Category VIII(a) with a maximum range less than 300 km are controlled in paragraph .x of this entry.

    u. Apparatus and devices “specially designed” for the 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.

    Note to paragraph .u:

    Apparatus and devices “specially designed” for the handling, control, activation and non-ship-based launching of UAVs or drones controlled by either USML paragraph VIII(a) or ECCN 9A610.a with a maximum range less than 300 km are controlled in paragraph .x of this entry.

    v. Radar altimeters designed or modified for use in UAVs or drones controlled by either USML paragraph VIII(a) or ECCN 9A610.a., and capable of delivering at least 500 kilograms payload to a range of at least 300 km.

    Note to paragraph .v:

    Radar altimeters designed or modified for use in UAVs or drones controlled by either USML paragraph VIII(a) or ECCN 9A610.a. that are not capable of delivering at least 500 kilograms payload to a range of at least 300 km are controlled in paragraph .x of this entry.

    w. Pneumatic hydraulic, mechanical, electro-optical, or electromechanical flight control systems (including fly-by-wire and fly-by-light systems) and attitude control equipment designed or modified for UAVs or drones controlled by either USML paragraph VIII(a) or ECCN 9A610.a., and capable of delivering at least 500 kilograms payload to a range of at least 300 km.

    Note to paragraph .w.

    Pneumatic, hydraulic, mechanical, electro-optical, or electromechanical flight control systems (including fly-by-wire and fly-by-light systems) and attitude control equipment designed or modified for UAVs or drones controlled by either USML paragraph VIII(a) or ECCN 9A610.a., not capable of delivering at least 500 kilograms payload to a range of at least 300 km are controlled in paragraph .x of this entry.

    x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity enumerated or otherwise described in ECCN 9A610 (except for 9A610.y) or a defense article enumerated or otherwise described in USML Category VIII and not elsewhere specified on the USML or in 9A610.y, 9A619.y, or 3A611.y.

    y. Specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control in this entry, ECCN 9A619, or for a defense article in USML Categories VIII or XIX and not elsewhere specified in the USML or the CCL, and other aircraft commodities “specially designed” for a military use, as follows, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefor:

    y.1. Aircraft tires;

    y.2. Analog gauges and indicators;

    y.3. Audio selector panels;

    y.4. Check valves for hydraulic and pneumatic systems;

    y.5. Crew rest equipment;

    y.6. Ejection seat mounted survival aids;

    y.7. Energy dissipating pads for cargo (for pads made from paper or cardboard);

    y.8. Fluid filters and filter assemblies;

    y.9. Galleys;

    y.10. Fluid hoses, straight and unbent lines (for a commodity subject to control in this entry or defense article in USML Category VIII), and fittings, couplings, clamps (for a commodity subject to control in this entry or defense article in USML Category VIII) and brackets therefor;

    y.11. Lavatories;

    y.12. Life rafts;

    y.13. Magnetic compass, magnetic azimuth detector;

    y.14. Medical litter provisions;

    y.15. Cockpit or cabin mirrors;

    y.16. Passenger seats including palletized seats;

    y.17. Potable water storage systems;

    y.18. Public address (PA) systems;

    y.19. Steel brake wear pads (does not include sintered mix or carbon/carbon materials);

    y.20. Underwater locator beacons;

    y.21. Urine collection bags/pads/cups/pumps;

    y.22. Windshield washer and wiper systems;

    y.23. Filtered and unfiltered panel knobs, indicators, switches, buttons, and dials;

    y.24. Lead-acid and Nickel-Cadmium batteries;

    y.25. Propellers, propeller systems, and propeller blades used with reciprocating engines;

    y.26. Fire extinguishers;

    y.27. Flame and smoke/CO2 detectors;

    y.28. Map cases;

    y.29. `Military Aircraft' that were first manufactured from 1946 to 1955 that do not incorporate defense articles enumerated or otherwise described on the U.S. Munitions List, unless the items are required to meet safety or airworthiness standards of a Wassenaar Arrangement Participating State; and do not incorporate weapons enumerated or otherwise described on the U.S. Munitions List, unless inoperable and incapable of being returned to operation;

    y.30. “Parts,” “components,” “accessories,” and “attachments,” other than electronic items or navigation equipment, for use in or with a commodity controlled by ECCN 9A610.h;

    y.31. Identification plates and nameplates; and

    y.32. Fluid manifolds.

    11. In ECCN 9A619, the List of Items Controlled section is amended by: a. Revising the “Related Controls” paragraph; b. Revising the “Related Definitions” paragraph; c. Removing the note that immediately follows paragraph .e in the “Items” paragraph; d. Revising paragraph .x in the “Items” paragraph; and e. Revising paragraph .y in the “Items” paragraph.

    The revisions read as follows:

    9A619 Military gas turbine engines and related commodities (see List of Items Controlled). List of Items Controlled Related Controls: (1) Military gas turbine engines and related articles that are enumerated or otherwise described in USML Category XIX, and technical data (including software) directly related thereto, are subject to the jurisdiction of the International Traffic in Arms Regulations (ITAR). (2) Gas turbine engines designated 501-D22 are controlled in ECCN 9A991.d regardless of the aircraft type into which they will be installed. (3) See ECCN 0A919 for foreign-made “military commodities” that incorporate more than a de minimis amount of U.S.-origin “600 series” controlled content. (4) “Parts,” “components,” “accessories,” and “attachments” specified in USML Category XIX(f) are subject to the controls of that paragraph. (5) “Parts,” “components,” “accessories,” and “attachments” specified in ECCN 9A619.y are subject to the controls of that paragraph. Related Definitions: In paragraph .y of this entry, the term `fluid' includes liquids and gases. Items:

    x. Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by this ECCN 9A619 (other than ECCN 9A619.c) or for a defense article enumerated in USML Category XIX and not specified elsewhere on the USML or in ECCN 3A611.y, 9A610.y or 9A619.y.

    Note to paragraph .x:

    “Parts,” “components,” “accessories,” and “attachments” specified in USML subcategory XIX(f) are subject to the controls of that paragraph. “Parts,” “components,” “accessories,” and “attachments” specified in ECCN 3A611.y, 9A610.y or 9A619.y are subject to the controls of that paragraph.

    y. Specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control in this entry, ECCN 9A610, or for a defense article in USML Category VIII or Category XIX and not elsewhere specified on the USML or in the CCL, and other commodities, as follows, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefor:

    y.1. Oil tank and reservoirs;

    y.2. Oil lines and tubes;

    y.3. Fluid hoses, and lines (for a commodity subject to control in this entry or a defense article in USML Category XIX), fittings, couplings, and brackets therefor;

    y.4. Fluid filters and filter assemblies;

    y.5. Clamps (for a commodity subject to control in this entry or a defense article in USML Category XIX);

    y.6. Shims;

    y.7. Identification plates and nameplates;

    y.8. Fluid manifolds; and

    y.9. Check valves for fluid systems.

    ECCN 9A620—[Amended] 12. In ECCN 9A620, remove the note to 9A620.b that immediately follows paragraph .x. 13. In ECCN 9B610, revise the “Related Controls” paragraph in the List of Items Controlled section to read as follows: 9B610 Test, inspection, and production “equipment” and related commodities “specially designed” for the “development” or “production” of commodities enumerated or otherwise described in ECCN 9A610 or USML Category VIII (see List of Items Controlled). List of Items Controlled Related Controls: USML Category VIII(h)(1) controls “parts,” “components,” “accessories,” and “attachments” “specially designed” for the aircraft enumerated or otherwise described in Category VIII(h)(1), but does not control the commodities enumerated or otherwise described in ECCN 9B610. USML Category VIII(h)(2)-(28) controls other aircraft “parts,” “components,” “accessories,” “attachments,” and “systems.” 14. In ECCN 9B619, revise the “Related Controls” paragraph in the List of Items Controlled section to read as follows: 9B619 Test, inspection, and production “equipment” and related commodities “specially designed” for the “development” or “production” of commodities enumerated or otherwise described in ECCN 9A619 or USML Category XIX (see List of Items Controlled). List of Items Controlled Related Controls: USML Category XIX(f)(1) controls “parts,” “components,” “accessories,” and “attachments” “specially designed” for the engines described in Category XIX(f)(1), but does not control the commodities enumerated or otherwise described in ECCN 9B619. USML Category XIX(f)(2)-(11) controls other engine “parts,” “components,” “accessories,” “attachments,” and “systems.” 15. In ECCN 9C610, revise the heading, and the “Items” paragraph of the “List of Items Controlled” section to read as follows: 9C610 Materials “specially designed” for commodities controlled by USML Category VIII or ECCN 9A610 and not elsewhere specified in the CCL or the USML (see List of Items Controlled). List of Items Controlled

    * * *

    Items: a. Materials not elsewhere specified in the USML or the CCL and “specially designed” for commodities enumerated or otherwise described in USML Category VIII or ECCN 9A610 (except 9A610.y). Note 1:

    Materials enumerated elsewhere in the CCL, such as in a CCL Category 1 ECCN, are controlled pursuant to controls of the applicable ECCN.

    Note 2:

    Materials “specially designed” for both aircraft enumerated in USML Category VIII and aircraft enumerated in ECCN 9A610 are subject to the controls of this ECCN

    b. [Reserved]

    16. In ECCN 9C619, revise the heading, and the “Items” paragraph of the “List of Items Controlled” section to read as follows: 9C619 Materials “specially designed” for commodities controlled by USML Category XIX or ECCN 9A619 and not elsewhere specified in the CCL or on the USML (see List of Items Controlled). List of Items Controlled

    * * *

    Items:

    a. Materials not controlled by paragraph .b of this entry and not elsewhere specified in the CCL or on the USML, and “specially designed” for commodities enumerated or otherwise described in USML Category XIX or ECCN 9A619 (except 9A619.y).

    b. Materials “specially designed” for use in certain gas turbine engines, as follows:

    b.1. Powders “specially designed” for thermal or environmental barrier coating of defense articles enumerated or described in USML Category XIX paragraphs (f)(1)-(f)(4) for engines listed in (f)(1);

    b.2. Superalloys (i.e., nickel, cobalt or iron based), used in directionally solidified or single crystal casting, “specially designed” for defense articles enumerated or described in USML Category XIX paragraphs (f)(1)-(f)(4) for engines listed in paragraph (f)(1); or

    b.3. Imide matrix, metal matrix, or ceramic matrix composite material (i.e., reinforcing fiber combined with a matrix) “specially designed” for defense articles enumerated or described in USML Category XIX paragraphs (f)(1)-(f)(4) for engines listed in paragraph (f)(1).

    Note 1:

    Materials enumerated elsewhere in the CCL, such as in a CCL Category 1 ECCN, are controlled pursuant to the controls of the applicable ECCN.

    Note 2:

    Materials described in paragraph .a of this entry that are “specially designed” for both an engine enumerated in USML Category XIX and an engine enumerated in ECCN 9A619 are subject to the controls of this ECCN 9C619

    Note 3:

    Materials described in this entry that are or have been used in gas turbine engines in production (i.e., not in development) that are not enumerated or otherwise described on the USML or ECCN 9A619 are not controlled by this entry.

    17. In ECCN 9E610, in the “List of Items Controlled” section, the “Items” paragraph is amended by: a. Removing the word “or” from the end of paragraph .b.13; b. Removing the period from the end of paragraph .b.14 and adding in its place a semicolon followed by the word “or”; and c. Adding paragraph .b.15.

    The addition reads as follows.

    9E610 Technology “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of military aircraft and related commodities controlled by 9A610, equipment controlled by 9B610, materials controlled by 9C610, or software controlled by 9D610 (see List of Items Controlled). List of Items Controlled Items:

    b. * * *

    b.15. Technology “required” for the “development” or “production” of “parts” or “components” controlled in 9A610.x and “specially designed” for damage or failure-adaptive flight control systems controlled in Category VIII(h)(7) of the USML.

    18. In ECCN 9E619, the “List of Items Controlled” section is amended by revising the “Related Controls” paragraph, and in the “Items” paragraph: a. Revising the Note that immediately follows paragraph .a; b. Removing the word “or” from the end of paragraph .b.8; c. Removing the period from the end of paragraph .b.9 and adding in its place a semicolon followed by the word “or”; and d. Adding paragraph b.10.

    The revision and addition read as follows:

    9E619 “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of military gas turbine engines and related commodities controlled by 9A619, equipment controlled by 9B619, materials controlled by 9C619, or software controlled by 9D619 (see List of Items Controlled). List of Items Controlled

    Related Controls: Technical data directly related to articles enumerated or otherwise described in USML Category XIX are subject to the control of USML Category XIX(g).

    Items:

    * * *

    Note:

    “Build-to-print technology” “required” for the “production” of items described in paragraphs b.1 through b.10 of this entry is classified under 9E619.a.

    b. * * *

    b.10. Materials controlled by ECCN 9C619.b.

    Dated: November 8, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-27777 Filed 11-18-16; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF STATE 22 CFR Part 121 RIN 1400-AD89 [Public Notice: 9604] Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Categories VIII and XIX AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    As part of the President's Export Control Reform (ECR) initiative, the Department of State amends the International Traffic in Arms Regulations (ITAR) to revise Categories VIII (aircraft and related articles) and XIX (gas turbine engines and associated equipment) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control on the USML. The revisions contained in this rule are part of the Department of State's retrospective plan under E.O. 13563.

    DATES:

    This final rule is effective on December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2792; email [email protected] ATTN: ITAR Amendment—USML Categories VIII and XIX.

    SUPPLEMENTARY INFORMATION:

    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.

    Revision of Category VIII

    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.

    Revision of Category XIX

    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.

    Regulatory Findings Administrative Procedure Act

    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.

    Regulatory Flexibility Act

    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.

    Unfunded Mandates Reform Act of 1995

    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.

    Small Business Regulatory Enforcement Fairness Act of 1996

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

    Executive Orders 12372 and 13132

    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 Order 12866 and 13563

    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).

    Executive Order 12988

    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.

    Executive Order 13175

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

    Paperwork Reduction Act

    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.

    List of Subjects in 22 CFR Part 121

    Arms and munitions, Exports.

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

    PART 121—THE UNITED STATES MUNITIONS LIST 1. The authority citation for part 121 continues to read as follows: Authority:

    Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    2. Section 121.1 is amended by revising U.S. Munitions List Categories VIII and XIX to read as follows:
    § 121.1 The United States Munitions List. Category VIII—Aircraft and Related Articles

    (a) Aircraft, whether manned, unmanned, remotely piloted, or optionally piloted, as follows (MT if the aircraft, excluding manned aircraft, has a range equal to or greater than 300 km):

    * (1) Bombers;

    * (2) Fighters, fighter bombers, and fixed-wing attack aircraft;

    * (3) Turbofan- or turbojet-powered trainers used to train pilots for fighter, attack, or bomber aircraft;

    * (4) Attack helicopters;

    * (5) Unmanned aerial vehicles (UAVs) specially designed to incorporate a defense article;

    * (6) [Reserved]

    * (7) Aircraft specially designed to incorporate a defense article for the purpose of performing an intelligence, surveillance, and reconnaissance function;

    * (8) Aircraft specially designed to incorporate a defense article for the purpose of performing an electronic warfare function; airborne warning and control aircraft; or aircraft specially designed to incorporate a defense article for the purpose of performing a command, control, and communications function;

    (9) Aircraft specially designed to incorporate a defense article for the purpose of performing an air refueling function;

    (10) Target drones;

    (11) [Reserved]

    (12) Aircraft capable of being refueled in-flight including hover-in-flight refueling (HIFR);

    (13) [Reserved]

    (14) Aircraft with a roll-on/roll-off ramp, capable of airlifting payloads over 35,000 lbs. to ranges over 2,000 nm without being refueled in-flight, and landing onto short or unimproved airfields, other than L-100 and LM-100J aircraft;

    * (15) Aircraft not enumerated in paragraphs (a)(1) through (a)(14) as follows:

    (i) U.S.-origin aircraft that bear an original military designation of A, B, E, F, K, M, P, R, or S; or

    (ii) Foreign-origin aircraft specially designed to provide functions equivalent to those of the aircraft listed in paragraph (a)(15)(i) of this category; or

    (16) Aircraft that are armed or are specially designed to be used as a platform to deliver munitions or otherwise destroy targets (e.g., firing lasers, launching rockets, firing missiles, dropping bombs, or strafing);

    Note 1 to paragraph (a): Aircraft specially designed for military applications that are not identified in paragraph (a) of this section are subject to the EAR and classified as ECCN 9A610, including any model of unarmed military aircraft manufactured prior to 1956, regardless of origin or designation, and unmodified since manufacture. Aircraft with modifications made to incorporate safety of flight features or other FAA or NTSB modifications such as transponders and air data recorders are considered “unmodified” for the purposes of this paragraph.

    Note 2 to paragraph (a): “Range” is the maximum distance that the specified aircraft system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for aircraft systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For aircraft systems, the range will be determined for a one-way distance using the most fuel-efficient flight profile (e.g., cruise speed and altitude), assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind, but with no fuel reserve.

    (b)-(c) [Reserved]

    (d) Launching and recovery equipment specially designed to allow an aircraft described in paragraph (a) of this category to take off or land on a vessel described in Category VI paragraphs (a) through (c) (MT if the launching and recovery equipment is for an aircraft, excluding manned aircraft, that has a range equal to or greater than 300 km).

    Note to paragraph (d):

    For the definition of “range,” see note to paragraph (a) of this category.

    (e) [Reserved]

    (f) Developmental aircraft funded by the Department of Defense via contract or other funding authorization, and specially designed parts, components, accessories, and attachments therefor.

    Note 1 to paragraph (f): This paragraph does not control aircraft and specially designed parts, components, accessories, and attachments therefor (a) in production; (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.

    Note 2 to paragraph (f): Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.

    Note 3 to paragraph (f): This paragraph is applicable only to those contracts, other funding authorizations, or modifications initiating development of a new defense article that are dated April 16, 2014, or later.

    (g) [Reserved]

    (h) Parts, components, accessories, attachments, associated equipment and systems, as follows:

    (1) Parts, components, accessories, and attachments specially designed for the following U.S.-origin aircraft: The B-1B, B-2, B-21, F-15SE, F/A-18 E/F, EA-18G, F-22, F-35, and future variants thereof; or the F-117 or U.S. Government technology demonstrators. Parts, components, accessories, and attachments of the F-15SE and F/A-18 E/F that are common to earlier models of these aircraft, unless listed in paragraph (h) of this category, are subject to the EAR;

    Note to paragraph (h)(1):

    This paragraph does not control parts, components, accessories, and attachments that are common to aircraft described in paragraph (a) of this category but not identified in paragraph (h)(1), and those identified in paragraph (h)(1). For example, when applying § 120.41(b)(3), a part common to only the F-16 and F-35 is not specially designed for purposes of this paragraph. A part common to only the F-22 and F-35—two aircraft models identified in paragraph (h)(1)—is specially designed for purposes of this paragraph, unless one of the other paragraphs is applicable under § 120.41(b) of this subchapter.

    (2) Rotorcraft gearboxes with internal pitch line velocities exceeding 20,000 feet per minute and able to operate 30 minutes with loss of lubrication without an emergency or auxiliary lubrication system, and specially designed parts and components therefor;

    Note to paragraph (h)(2):

    Loss of lubrication means a situation where oil/lubrication is mostly or completely lost from a transmission/gearbox such that only a residual coating remains due to the lubrication system failure.

    (3) Tail boom folding systems, stabilator folding systems or automatic rotor blade folding systems, and specially designed parts and components therefor;

    (4) Wing folding systems, and specially designed parts and components therefor, for:

    (i) Aircraft powered by power plants controlled under USML Category IV(d); or

    (ii) Aircraft with any of the following characteristics and powered by gas turbine engines:

    (A) The portion of the wing outboard of the wing fold is required for sustained flight;

    (B) Fuel can be stored outboard of the wing fold;

    (C) Control surfaces are outboard of the wing fold;

    (D) Hard points are outboard of the wing fold;

    (E) Hard points inboard of the wing fold allow for in-flight ejection; or

    (F) The aircraft is designed to withstand maximum vertical maneuvering accelerations greater than +3.5g/−1.5g.

    (5) On-aircraft arresting gear (e.g., tail hooks and drag chutes) and specially designed parts and components therefor;

    (6) Bomb racks, missile or rocket launchers, missile rails, weapon pylons, pylon-to-launcher adapters, unmanned aerial vehicle (UAV) airborne launching systems, external stores support systems for ordnance or weapons, and specially designed parts and components therefor (MT if the bomb rack, missile launcher, missile rail, weapon pylon, pylon-to-launcher adapter, UAV airborne launching system, or external stores support system is for an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km);

    (7) Damage or failure-adaptive flight control systems, that do not consist solely of redundant internal circuitry, specially designed for aircraft controlled in this category;

    (8) Threat-adaptive autonomous flight control systems, where a “threat-adaptive autonomous flight control system” is a flight control system that, without input from the operator or pilot, adjusts the aircraft control or flight path to minimize risk caused by hostile threats;

    (9) Non-surface-based flight control systems and effectors (e.g., thrust vectoring from gas ports other than main engine thrust vector);

    (10) Radar altimeters with output power management LPI (low probability of intercept) or signal modulation (i.e., frequency hopping, chirping, direct sequence-spectrum spreading) LPI capabilities (MT if for an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km);

    (11) Air-to-air refueling systems and hover-in-flight refueling (HIFR) systems, and specially designed parts and components therefor;

    (12) Unmanned aerial vehicle (UAV) flight control systems and vehicle management systems with swarming capability (i.e., UAVs interact with each other to avoid collisions and stay together, or, if weaponized, coordinate targeting) (MT if for an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km);

    (13) [Reserved]

    (14) Lift fans, clutches, and roll posts for short take-off, vertical landing (STOVL) aircraft and specially designed parts and components for such lift fans and roll posts;

    (15) Integrated helmets incorporating optical sights or slewing devices, which include the ability to aim, launch, track, or manage munitions (e.g., Helmet Mounted Cueing Systems, Joint Helmet Mounted Cueing Systems (JHMCS), Helmet Mounted Displays, Display and Sight Helmets (DASH)), and specially designed parts, components, accessories, and attachments therefor;

    (16) Fire control computers, stores management systems, armaments control processors, and aircraft-weapon interface units and computers (e.g., AGM-88 HARM Aircraft Launcher Interface Computer (ALIC));

    (17) Mission computers, vehicle management computers, and integrated core processers specially designed for aircraft controlled in this category;

    (18) Drive systems, flight control systems, and parts and components therefor, specially designed to function after impact of a 7.62mm or larger projectile;

    (19) Thrust reversers specially designed to be deployed in flight for aircraft controlled in this category;

    * (20) Any part, component, accessory, attachment, equipment, or system that:

    (i) Is classified;

    (ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or

    (iii) Is being developed using classified information.

    Note to paragraph (h)(20):

    Classified means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government or international organization;

    (21)-(26) [Reserved]

    (27) Variable speed gearboxes, where a “variable speed gearbox” has the ability to vary the gearbox output speed by mechanical means within the gearbox while the gearbox input speed from the engine or other source is constant, and is capable of varying output speed by 20% or greater and providing power to rotors, proprotors, propellers, propfans, or liftfans; and specially designed parts and components therefor;

    (28) Electrical power or thermal management systems specially designed for an engine controlled in Category XIX and having any of the following:

    (i) Electrical power generators that provide greater than 300kW of electrical power (per generator) with gravimetric power densities exceeding 2kW/pound (excluding the mass of the controller for the purpose of calculating the gravimetric power density);

    (ii) Heat exchangers that exchange 60 kW/K-m3 or 1 kW/K of heat or greater into the gas turbine engine flow path; or

    (iii) Direct-cooling thermal electronic package heat exchangers that transfer 20kW of heat or greater at 100W/cm2 or greater.

    (29) Any of the following equipment if specially designed for a defense article described in paragraph (h)(1):

    (i) Scale test models;

    (ii) Full scale iron bird ground rigs used to test major aircraft systems; or

    (iii) Jigs, locating fixtures, templates, gauges, molds, dies, or caul plates.

    (i) Technical data (see § 120.10 of this subchapter) and defense services (see § 120.9 of this subchapter) directly related to the defense articles described in paragraphs (a) through (h) of this category and classified technical data directly related to items controlled in ECCNs 9A610, 9B610, 9C610, and 9D610 and defense services using classified technical data. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)

    (j)-(w) [Reserved]

    (x) Commodities, software, and technology subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).

    Note: Parts, components, accessories, and attachments in paragraphs (h)(3)-(5), (7), (14), (17), or (19) are licensed by the Department of Commerce when incorporated in an aircraft subject to the EAR and classified under ECCN 9A610. Replacement systems, parts, components, accessories and attachments are subject to the controls of the ITAR.

    Category XIX—Gas Turbine Engines and Associated Equipment

    * (a) Turbofan and Turbojet engines (including those that are technology demonstrators, developmental engines, or variable cycle engines) capable of 15,000 lbf (66.7 kN) of thrust or greater that have any of the following:

    (1) With or specially designed for thrust augmentation (afterburner);

    (2) Thrust or exhaust nozzle vectoring;

    (3) Parts or components controlled in paragraph (f)(6) of this category;

    (4) Specially designed for sustained 30 second inverted flight or negative g maneuver; or

    (5) Specially designed for high power extraction (greater than 50 percent of engine thrust at altitude) at altitudes greater than 50,000 feet.

    * (b) Turboshaft and Turboprop engines (including those that are technology demonstrators or developmental engines) that have any of the following:

    (1) Capable of 2000 mechanical shp (1491 kW) or greater and specially designed with oil sump sealing when the engine is in the vertical position; or

    (2) Capable of a specific power of 225 shp/(lbm/sec) or greater and specially designed for armament gas ingestion and non-civil transient maneuvers, where specific power is defined as maximum takeoff shaft horsepower (shp) divided by compressor inlet flow (lbm/sec).

    * (c) Gas turbine engines (including technology demonstrators, developmental engines, and variable cycle engines) specially designed for unmanned aerial vehicle systems controlled in this subchapter, cruise missiles, or target drones (MT if for an engine used in an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km).

    * (d) GE38, AGT1500, CTS800, MT7, T55, HPW3000, GE3000, T408, and T700 engines.

    Note to paragraph (d):

    Engines subject to the control of this paragraph are licensed by the Department of Commerce when incorporated in an aircraft subject to the EAR and controlled under ECCN 9A610. Such engines are subject to the controls of the ITAR in all other circumstances.

    * (e) Digital engine control systems (e.g., Full Authority Digital Engine Controls (FADEC) and Digital Electronic Engine Controls (DEEC)) specially designed for gas turbine engines controlled in this category (MT if the digital engine control system is for an aircraft, excluding manned aircraft, or missile that has a range equal to or greater than 300 km).

    Note to paragraph (e):

    Digital electronic control systems autonomously control the engine throughout its whole operating range from demanded engine start until demanded engine shut-down, in both normal and fault conditions.

    (f) Parts, components, accessories, attachments, associated equipment, and systems as follows:

    (1) Parts, components, accessories, and attachments specially designed for the following U.S.-origin engines (and military variants thereof): F101, F107, F112, F118, F119, F120, F135, F136, F414, F415, and J402;

    Note to paragraph (f)(1):

    This paragraph does not control parts, components, accessories, and attachments that are common to engines enumerated in paragraph (a) through (d) of this category but not identified in paragraph (f)(1), and those identified in paragraph (f)(1). For example, a part common to only the F110 and F136 is not specially designed for purposes of this paragraph. A part common to only the F119 and F135—two engine models identified in paragraph (f)(1)—is specially designed for purposes of this paragraph, unless one of the other paragraphs is applicable under § 120.41(b).

    * (2) Hot section components (i.e., combustion chambers and liners; high pressure turbine blades, vanes, disks and related cooled structure; cooled intermediate pressure turbine blades, vanes, disks and related cooled structures; cooled low pressure turbine blades, vanes, disks and related cooled structures; cooled shaft-driving power turbine blades, vanes, disks and related cooled structures; cooled augmenters; and cooled nozzles) specially designed for gas turbine engines controlled in this category;

    (3) Uncooled turbine blades, vanes, disks, and tip shrouds specially designed for gas turbine engines controlled in this category;

    (4) Combustor cowls, diffusers, domes, and shells specially designed for gas turbine engines controlled in this category;

    (5) Engine monitoring systems (i.e., prognostics, diagnostics, and health) specially designed for gas turbine engines and components controlled in this category;

    * (6) Any part, component, accessory, attachment, equipment, or system that:

    (i) Is classified;

    (ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or

    (iii) Is being developed using classified information.

    Note to paragraph (f)(6):

    “Classified” means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government or international organization;

    (7) Investment casting cores, core dies, or wax pattern dies for parts or components enumerated in paragraphs (f)(1), (f)(2), or (f)(3) of this category;

    (8) Pressure gain combustors specially designed for engines controlled in this category, and specially designed parts and components therefor;

    (9) Three-stream fan systems, specially designed for gas turbine engines controlled in this Category, that allow the movement of airflow between the streams to control fan pressure ratio or bypass ratio (by means other than use of fan corrected speed or the primary nozzle area to change the fan pressure ratio or bypass ratio), and specially designed parts, components, accessories, and attachments therefor;

    (10) High pressure compressors, specially designed for gas turbine engines controlled in this Category, with core-driven bypass streams that have a pressure ratio greater than one, occurring across any section of the bypass duct, and specially designed parts, components, accessories, and attachments therefor;

    (11) Intermediate compressors of a three-spool compression system, specially designed for gas turbine engines controlled in this Category, with an intermediate spool-driven bypass stream that has a pressure ratio greater than one, occurring across any section of the bypass duct, and specially designed parts, components, accessories, and attachments therefor; or

    (12) Any of the following equipment if specially designed for a defense article described in paragraph (f)(1): Jigs, locating fixtures, templates, gauges, molds, dies, caul plates, or bellmouths.

    (g) Technical data (see § 120.10 of this subchapter) and defense services (see § 120.9 of this subchapter) directly related to the defense articles described in paragraphs (a) through (f) of this category and classified technical data directly related to items controlled in ECCNs 9A619, 9B619, 9C619, and 9D619 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)

    (h)-(w) [Reserved]

    (x) Commodities, software, and technology subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles controlled in this category.

    Note to paragraph (x):

    Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).

    Dated: November 14, 2016. Thomas M. Countryman, Acting Under Secretary, Arms Control and International Security, Department of State.
    [FR Doc. 2016-27775 Filed 11-18-16; 8:45 am] BILLING CODE 4710-25-P
    NATIONAL LABOR RELATIONS BOARD 29 CFR Part 102 Rule Exempting an Amended System of Records From Certain Provisions of the Privacy Act AGENCY:

    National Labor Relations Board.

    ACTION:

    Direct final rule.

    SUMMARY:

    The National Labor Relations Board (NLRB) exempts an amended system of records, NLRB-17, Personnel Security Records, from certain provisions of the Privacy Act of 1974, 5 U.S.C. 552a, pursuant to sections (k)(1), (2), (3), (5), (6), and (7) of that Act.

    DATES:

    This rule is effective January 20, 2017 without further action, unless adverse comment is received by December 21, 2016. If adverse comment is received, the NLRB will publish a timely withdrawal of the rule in the Federal Register.

    ADDRESSES:

    All persons who desire to submit written comments for consideration by the Agency regarding the rule shall mail them to the Agency's Senior Agency Official for Privacy, National Labor Relations Board, 1015 Half Street SE., Third Floor, Washington, DC 20570-0001, or submit them electronically to [email protected] Comments may also be submitted electronically through http://www.regulations.gov, which contains a copy of this rule and any submitted comments.

    FOR FURTHER INFORMATION CONTACT:

    Prem Aburvasamy, Senior Agency Official for Privacy, National Labor Relations Board, 1015 Half Street SE., Third Floor, Washington, DC 20570-0001, (855)-209-9394, [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    List of Subjects in 29 CFR Part 102

    Privacy, Reporting and recordkeeping requirements.

    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:

    PART 102—RULES AND REGULATIONS, SERIES 8 1. The authority citation for Part 102 continues to read as follows: Authority:

    Sections 1, 6, National Labor Relations Act (29 U.S.C. 151, 156). Section 102.117 also issued under section 552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)), and Section 102.117a also issued under section 552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and (k)). Sections 102.143 through 102.155 also issued under section 504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 504(c)(1)).

    Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.

    Subpart K—Records and Information 2. Section 102.119 is amended by adding paragraphs (o) and (p) to read as follows:
    § 102.119 Privacy Act Regulations: notification as to whether a system of records contains records pertaining to requesting individuals; requests for access to records, amendment of such records, or accounting of disclosures; time limits for response; appeal from denial of requests; fees for document duplication; files and records exempted from certain Privacy Act requirements.

    (o) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), (5), (6), and (7) of the Privacy Act, the system of records maintained by the NLRB containing Personnel Security Records shall be exempted from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) insofar as the system may contain:

    (1) Records properly classified pursuant to an Executive Order, within the meaning of section 552(b)(1);

    (2) Investigatory material compiled for law enforcement purposes other than material within the scope of 5 U.S.C. 552a(j)(2);

    (3) Information 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;

    (4) Investigatory material compiled solely for the purpose of determining suitability, eligibility or qualifications for Federal civilian employment and Federal contact or access to classified information;

    (5) Testing and examination materials used for a personnel investigation for employment or promotion in the Federal service;

    (6) Evaluation materials, compiled during the course of a personnel investigation, that are used solely to determine potential for promotion in the armed services.

    (p) The Privacy Act exemptions contained in paragraph (o) of this section are justified for the following reasons:

    (1)(i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of each disclosure of records available to the individual named in the record at his/her request. These accountings must state the date, nature, and purpose of each disclosure of a record and the name and address of the recipient. 5 U.S.C. 552a(d) requires an agency to permit an individual to gain access to records pertaining to him/her, to request amendment to such records, to request a review of an agency decision not to amend such records, and to contest the information contained in such records.

    (ii) Personnel investigations may contain properly classified information which pertains to national defense and foreign policy obtained from another Federal agency. Application of exemption (k)(1) is necessary to preclude an individual's access to and amendment of such classified information under 5 U.S.C. 552a(d).

    (iii) Personnel investigations may contain investigatory material compiled for law enforcement purposes other than material within the scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2) is necessary to preclude an individual's access to or amendment of such records under 5 U.S.C. 552a(c)(3) and (d).

    (iv) Personnel investigations may also contain information obtained from another Federal agency that relates to providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056. Application of exemption (k)(3) is necessary to preclude an individual's access to and amendment of such records under 5 U.S.C. 552a(d).

    (v) Exemption (k)(5) is claimed with respect to the requirements of 5 U.S.C. 552a(c)(3) and (d) because this system contains investigatory material compiled solely for determining suitability, eligibility, and qualifications for Federal employment. To the extent that the disclosure of 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, the applicability of exemption (k)(5) will be required to honor promises of confidentiality should an individual request access to or amendment of the record, or access to the accounting of disclosures of the record. Similarly, personnel investigations may contain evaluation material used to determine potential for promotion in the armed services. Application of exemption (k)(7) is necessary to the extent that the disclosure of data would compromise the anonymity of a source 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. Both of these exemptions are necessary to safeguard the integrity of background investigations by minimizing the threat of harm to confidential sources, witnesses, and law enforcement personnel. Additionally, these exemptions reduce the risks of improper influencing of sources, the destruction of evidence, and the fabrication of testimony.

    (vi) All information in this system that meets the criteria articulated in exemption (k)(6) is exempt from the requirements of 5 U.S.C. 552a(d), relating to access to and amendment of records by an individual. This exemption is claimed because portions of this system relate to testing or examining materials used solely to determine individual qualifications for appointment or promotion to the Federal service. Access to or amendment to this information by an individual would compromise the objectivity and fairness of the testing or examining process.

    (2) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required by statute or by executive order of the President. This requirement could foreclose investigators from acquiring or receiving information the relevance and necessity of which is not readily apparent and could only be ascertained after a complete review and evaluation of all the evidence. This system of records is exempt from this requirement because in the course of personnel background investigations, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to favorably or unfavorably adjudicate a specific investigation at a specific point in time. However, in the interests of protecting the public trust and national security, it is appropriate to retain all information that may aid in establishing patterns in such areas as criminal conduct, alcohol and drug use, financial dishonesty, allegiance, foreign preference of influence, and psychological conditions, that are relevant to future personnel security or suitability determinations.

    (3) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a Federal Register notice concerning its procedures for notifying an individual, at his/her request, if the system of records contains a record pertaining to him/her, how to gain access to such a record and how to contest its content. Since this system of records is being exempted from subsection (f) of the Act, concerning agency rules, and subsection (d) of the Act, concerning access to records, these requirements are inapplicable to the extent that this system of records will be exempt from subsections (f) and (d) of the Act. Although the system would be exempt from these requirements, the NLRB has published information concerning its notification, access, and contest procedures because, under certain circumstances, it may be appropriate for a subject to have access to a portion of that individual's records in this system of records.

    (4) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal Register notice concerning the categories of sources of records in the system of records. Exemption from this provision is necessary to protect the confidentiality of the sources of information, to protect the privacy and physical safety of confidential sources and witnesses, and to avoid the disclosure of investigative techniques and procedures. Although the system will be exempt from this requirement, the agency has published source information in the accompanying notice in broad generic terms.

    (5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which shall establish procedures whereby an individual can be notified in response to a request if any system of records named by the individual contains a record pertaining to that individual. The application of this provision could compromise the progress of an investigation concerning the suitability, eligibility, and fitness for service of applicants for Federal employment and impede a prompt assessment of the appropriate access to the Agency's facilities. Although this system would be exempt from the requirements of subsection (f) of the Act, the Agency has promulgated rules which establish agency procedures because, under certain circumstances, it could be appropriate for an individual to have access to all or a portion of that individual's records in this system of records.

    Dated: Washington, DC, November 9, 2016.

    By direction of the Board.

    William B. Cowen, Federal Register Liaison, National Labor Relations Board.
    [FR Doc. 2016-27487 Filed 11-18-16; 8:45 am] BILLING CODE 7545-01-P
    PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4044 Allocation of Assets in Single-Employer Plans; Valuation of Benefits and Assets; Expected Retirement Age AGENCY:

    Pension Benefit Guaranty Corporation.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends the Pension Benefit Guaranty Corporation's regulation on Allocation of Assets in Single-Employer Plans by substituting a new table for determining expected retirement ages for participants in pension plans undergoing distress or involuntary termination with valuation dates falling in 2017. This table is needed in order to compute the value of early retirement benefits and, thus, the total value of benefits under a plan.

    DATES:

    Effective January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Deborah C. Murphy ([email protected]), Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005, 202-326-4400 ext. 3451. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400 ext. 3451.)

    SUPPLEMENTARY INFORMATION:

    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)).

    List of Subjects in 29 CFR Part 4044

    Pension insurance, Pensions.

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

    1. The authority citation for part 4044 continues to read as follows: Authority:

    29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.

    2. Appendix D to part 4044 is amended by removing Table I-16 and adding in its place Table I-17 to read as follows: Appendix D to Part 4044—Tables Used To Determine Expected Retirement Age Table I-17—Selection of Retirement Rate Category [For plans with valuation dates after December 31, 2016, and before January 1, 2018] If participant reaches URA in year— Participant's Retirement Rate Category is— Low 1 if
  • monthly
  • benefit at URA
  • is less than—
  • Medium 2 if monthly benefit at URA is— From— To— High 3 if monthly
  • benefit at URA is greater than—
  • 2018 631 631 2,665 2,665 2019 645 645 2,724 2,724 2020 660 660 2,787 2,787 2021 675 675 2,851 2,851 2022 691 691 2,916 2,916 2023 707 707 2,983 2,983 2024 723 723 3,052 3,052 2025 740 740 3,122 3,122 2026 757 757 3,194 3,194 2027 or later 774 774 3,268 3,268 1 Table II-A. 2 Table II-B. 3 Table II-C.
    Issued in Washington, DC, by: Judith Starr, General Counsel, Pension Benefit Guaranty Corporation.
    [FR Doc. 2016-27986 Filed 11-18-16; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-1011] RIN 1625-AA00 Safety Zone; Great Egg Harbor Bay, Marmora, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone on the waters of Great Egg Harbor Bay in Marmora, NJ. The safety zone includes all waters within 500 yards of a blasting vessel and equipment being used to conduct bridge pile blasting operations, which is the final phase of the demolition of the Route 9, Beesley Point Bridge bascule span. This safety zone will only be enforced during times of explosive detonation. The safety zone will temporarily restrict vessel traffic from transiting or anchoring in a portion of the Great Egg Harbor Bay while pile blasting and removal operations are being conducted to facilitate the removal of bridge piles from the demolished Route 9, Beesley Point Bridge.

    DATES:

    This rule is effective without actual notice from November 21, 2016 through November 24, 2016. For the purposes of enforcement, actual notice will be used from November 15, 2016, until November 21, 2016. During this period the safety zone will only be enforced during times of explosive detonation.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-1011 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this rule, call or email Marine Science Technician First Class Tom Simkins, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215)271-4889, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    III. Legal Authority and Need for Rule

    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.

    IV. Discussion of the Rule

    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.

    V. Regulatory Analysis

    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.

    A. Regulatory Planning and Review

    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.

    B. Impact on Small Entities

    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.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    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.

    E. Unfunded Mandates Reform Act

    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.

    F. Environment

    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.

    G. Protest Activities

    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.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add temporary § 165.T05-1011, to read as follows:
    § 165.T05-1011 Safety Zone; Great Egg Harbor Bay, Marmora, NJ

    (a) Regulated areas. The following area is a safety zone: All waters within 500 yards of the blasting vessel and equipment conducting pile blasting operations, in Great Egg Harbor Bay, in the vicinity of Route 9, Beesley Point Bridge, in Marmora, NJ.

    (b) Regulations. The general safety zone regulations in § 165.23 apply to the safety zones created by this temporary section, § 165.T05-1011.

    (1) All vessels and persons are prohibited from entering into or moving within the safety zone described in paragraph (a) of this section while they are subject to enforcement, unless authorized by the Captain of the Port or by his designated representative.

    (2) Persons or vessels seeking to enter or pass through the safety zone must contact the Captain of the Port or his designated representative to seek permission to transit the area. The Captain of the Port, Delaware Bay can be contacted at telephone number 215-271-4807 or on Marine Band Radio VHF Channel 16 (156.8 MHz).

    (3) No vessels may transit through the safety zone described in paragraph (a) of this section during times of explosives detonation. During pile blasting detonation, vessels will be required to maintain a 500 yard distance from the blasting vessel and equipment. Actual dates and times of explosive detonation will be announced 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, 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 all other required signage.

    (4) This section applies to all vessels except those engaged in the following operations: Enforcing laws, servicing aids to navigation, and emergency response vessels.

    (c) Definitions. As used in this section:

    Captain of the Port means Captain of the Port Delaware Bay. The Captain of the Port is also the Commander, U.S. Coast Guard Sector Delaware Bay, Philadelphia, PA.

    Captain of the Port Delaware Bay means the Commander, U.S. Coast Guard Sector Delaware Bay, Philadelphia, PA.

    Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Delaware Bay to assist in enforcing the safety zone described in paragraph (a) of this section.

    (d) Enforcement. The U.S. Coast Guard may be assisted by Federal, State and local agencies in the patrol and enforcement of the zone.

    (e) Enforcement periods. This section will be effective from November 15, 2016, through November 24, 2016. During this period the safety zone will only be enforced during times of explosive detonation.

    Dated: November 15, 2016. Benjamin A. Cooper, Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
    [FR Doc. 2016-27914 Filed 11-18-16; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 388 [Docket No. 16-CRB-0019-RM] Procedural Regulations for the Copyright Royalty Board: Rates and Terms for Statutory Licenses; Technical Amendment AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Final rule; technical amendment.

    SUMMARY:

    The Copyright Royalty Judges are amending their regulations to relocate the provisions regarding coin-operated phonorecord players from the section of the Code of Federal Regulations (CFR) that contains Copyright Arbitration Royalty Panel (CARP) regulations to the section of the CFR that contains Copyright Royalty Board (CRB) regulations so that the Copyright Office may remove the outdated CARP regulation.

    DATES:

    Effective on November 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    1 The Copyright Office proposed rulemaking indicated that part 256 will also remain, but the CRB recently gave notice of relocation of that part to part 387 and has notified the Copyright Office of that fact so it may now eliminate part 256 from Chapter II. Id.; 81 FR 62812 (Sept. 13, 2016).

    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.

    List of Subjects in 37 CFR Part 388

    Copyright, Jukeboxes, Rates.

    Final Regulations

    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:

    PART 388—ADJUSTMENT OF ROYALTY RATE FOR COIN-OPERATED PHONORECORD PLAYERS Sec. 388.1 General. 388.2 Definition of coin-operated phonorecord player. 388.3 Compulsory license fees for coin-operated phonorecord players. Authority:

    17 U.S.C. 116, 801(b)(1).

    § 388.1 General.

    This part 388 establishes the compulsory license fees for coin-operated phonorecord players beginning on January 1, 1982, in accordance with the provisions of 17 U.S.C. 116.

    § 388.2 Definition of coin-operated phonorecord player.

    As used in this part, the term coin-operated phonorecord player is a machine or device that:

    (a) Is employed solely for the performance of nondramatic musical works by means of phonorecords upon being activated by insertion of coins, currency, tokens, or other monetary units or their equivalent;

    (b) Is located in an establishment making no direct or indirect charge for admission;

    (c) Is accompanied by a list of the titles of all the musical works available for performance on it, which list is affixed to the phonorecord player or posted in the establishment in a prominent position where it can be readily examined by the public; and

    (d) Affords a choice of works available for performance and permits the choice to be made by the patrons of the establishment in which it is located.

    § 388.3 Compulsory license fees for coin-operated phonorecord players.

    (a) Commencing January 1, 1982, the annual compulsory license fee for a coin-operated phonorecord player shall be $25.

    (b) Commencing January 1, 1984, the annual compulsory license fee for a coin-operated phonorecord player shall be $50.

    (c) Commencing January 1, 1987, the annual compulsory license fee for a coin-operated phonorecord player shall be $63.

    (d) If performances are made available on a particular coin-operated phonorecord player for the first time after July 1 of any year, the compulsory license fee for the remainder of that year shall be one half of the annual rate of paragraph (a), (b), or (c) of this section, whichever is applicable.

    (e) Commencing January 1, 1990, the annual compulsory license fee for a coin-operated phonorecord player is suspended through December 31, 1999, or until such earlier or later time as the March 1990 license agreement between AMOA and ASCAP/BMI/SESAC is terminated.

    Dated: November 1, 2016. Suzanne M. Barnett, Chief Copyright Royalty Judge. Approved by: Carla D. Hayden, Librarian of Congress.
    [FR Doc. 2016-27885 Filed 11-18-16; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0756; FRL-9955-29-Region 4] Air Plan Approval/Disapproval; AL Infrastructure Requirements for the 2010 1-Hour NO2 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve in part, and disapprove in part, portions of the April 23, 2013, and December 9, 2015, of the State Implementation Plan (SIP) submissions, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), to demonstrate that the State meets certain infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. ADEM certified that the Alabama SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Alabama. With the exception of the provisions pertaining to prevention of significant deterioration (PSD) permitting, and visibility in other states, for which EPA is proposing no action through this notice, and the provisions respecting state boards, for which EPA is finalizing disapproval, EPA has determined portions of Alabama's infrastructure SIP submissions, provided to EPA on April 23, 2013, and updated on December 9, 2015, satisfy certain required infrastructure elements for the 2010 1-hour NO2 NAAQS.

    DATES:

    This rule will be effective December 21, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0756. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Richard Wong can also be reached via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    1 ADEM clarified that its December 9, 2015, submission was not intended to address the PSD requirements that were approved by EPA on March 18, 2015. See www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0756.

    II. Final 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.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 4, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart B—Alabama 2. Section 52.50(e), is amended by adding an entry for “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS” at the end of the table to read as follows:
    § 52.50 Identification of plan.

    (e) * * *

    EPA-Approved Alabama Non-Regulatory Provisions Name of
  • nonregulatory
  • SIP provision
  • Applicable
  • geographic or
  • nonattainment area
  • State submittal
  • date/effective date
  • EPA approval date Explanation
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS Alabama 4/23/2013 11/21/2016 [Insert citation of publication] With the exception of sections: 110(a)(2)(C) and (J) concerning PSD permitting requirements; 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4) concerning interstate transport requirements and the state boards of section 110(a)(2)(E)(ii).
    3. Section 52.53 is amended by adding paragraph (c) to read as follows:
    § 52.53 Approval status.

    (c) Disapproval. Submittal from the State of Alabama, through the Alabama Department of Environmental Management (ADEM) on April 23, 2013, and December 9, 2015, to address the Clean Air Act section 110(a)(2)(E)(ii) for the 2010 1-hour nitrogen dioxide (NO2) National Ambient Air Quality Standards (NAAQS) concerning state board requirements. EPA is disapproving section 110(a)(2)(E)(ii) of ADEM's submittal because the Alabama SIP lacks provisions respecting state boards per section 128 of the CAA for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards.

    [FR Doc. 2016-27862 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0846; FRL-9955-17-Region 9] Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze Federal Implementation Plan; Reconsideration AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is revising portions of the Arizona Regional Haze Federal Implementation Plan (2014 FIP) applicable to the Phoenix Cement Company (PCC) Clarkdale Plant and the CalPortland Cement (CPC) Rillito Plant. This 2014 FIP was adopted earlier under the provisions of the Clean Air Act (CAA). We are finalizing without change our proposal to replace the control technology demonstration requirements for nitrogen oxides (NOX) applicable to Kiln 4 at the Clarkdale Plant and Kiln 4 at the Rillito Plant with a series of revised recordkeeping and reporting requirements. When EPA finalized the 2014 FIP, we had limited operating data for the use of Selective Non-Catalytic Reduction (SNCR) on cement plants. Therefore, we required that PCC and CPC perform control technology demonstration projects to support the control efficiencies for SNCR in the 2014 FIP, as well as to determine if more stringent control efficiencies were achievable. In early 2015, a control technology demonstration project was performed on the SNCR installed at another CalPortland Cement facility, the Mojave Plant. Our analysis of the SNCR control efficiency data from that project indicated that more stringent SNCR control efficiencies were not achievable at PCC and CPC. As a result, the additional information from the control technology demonstration projects required by the 2014 FIP is no longer needed because the PCC and CPC SNCR control efficiencies in the 2014 FIP are consistent with the SNCR performance at the Mojave Plant. In addition, the EPA is making a minor technical correction to change an equation to match the language in the regulatory text.

    DATES:

    This rule will be effective December 21, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2015-0846. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Colleen McKaughan, U.S. EPA, Region 9, Air Division, Air-1, 75 Hawthorne Street, San Francisco, CA 94105; telephone number: (520) 498-0118; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Definitions II. Background III. Proposed Action IV. Public Comments and EPA Responses V. Final Action VI. Environmental Justice Considerations VII. Statutory and Executive Order Reviews I. Definitions

    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.

    II. Background A. Summary of Statutory and Regulatory Requirements

    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

    1 77 FR 42834, 42837-42839 (July 20, 2012), (Arizona Regional Haze “Phase 1” Rule); 77 FR 75704, 75709-75712 (December 21, 2012), (Arizona Regional Haze “Phase 2” Rule).

    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

    2 42 U.S.C. 7491(a)(1).

    3See CAA section 169B, 42 U.S.C. 7492.

    4 81 FR 26942, May 4, 2016.

    5 Areas designated as mandatory Class I Federal areas consist of national parks exceeding 6000 acres, wilderness areas, and national memorial parks exceeding 5000 acres, and all international parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a).

    6See generally 40 CFR 51.308.

    B. History of FIP Requirements for the State of Arizona

    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

    7 77 FR 72512 (December 5, 2012).

    8 78 FR 46142 (July 30, 2013).

    9 79 FR 52420 (September 3, 2014) (The 2014 FIP final rule).

    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.

    10 Memorandum dated November 19, 2012, from John Summerhays (EPA), Subject: “Review of Cost Effectiveness of Selective Noncatalytic Reduction (SNCR) at St. Mary's Cement's (SMC) Facility in Charlevoix (SMC-Charlevoix).”

    11 De-NOX Technologies, LLC, “Report of NOX Removal Measurements from an SNCR System at the St. Mary's Cement Dixon IL Facility,” October 2005.

    12 77 FR 181 (September 18, 2012) (Ash Grove Cement and Holcim Cement BART 5-factor analysis).

    13 Colorado Department of Public Health and Environment, “Colorado Regional Haze SIP”, January 2011; See Reasonable Progress (RP) Four-Factor Analysis of Control Options for Holcim Portland Plant, Florence, Colorado.

    14 Letter dated March 31, 2014 from Jay Grady (CPC) to Thomas Webb (EPA) and Exhibit 1, “Evaluation of EPA's Reasonable Progress Analysis for Kiln 4 at CalPortland Company's Rillito Cement Plant.”

    C. Petitions for Reconsideration and Stay

    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

    15 Letter dated November 3, 2014, from Verle C. Martz (PCC) to Regina McCarthy (EPA); letter dated November 3, 2014 from Jay Grady (CPC) to Regina McCarthy (EPA).

    16 Letter November 3, 2014, from Jay Grady (CPC) to Regina McCarthy (EPA) with attachment “Petition of CalPortland Company for Partial Reconsideration and Request for Administrative Stay of EPA Final Rule, Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze and Interstate Visibility Transport Federal Implementation Plan Published at 79 FR 52420” at 4.

    17 Letter dated November 3, 2014, from Verle C. Martz (PCC) to Regina McCarthy (EPA) at 2.

    18 We note that while the Clarkdale Plant is tribally owned, it is not located on tribal land. It is subject to State jurisdiction and is regulated by ADEQ.

    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

    19 Letter dated January 16, 2015, from Jared Blumenfeld (EPA) to Verle C. Martz, PCC; letter dated January 27, 2015, from Jared Blumenfeld (EPA) to Jay Grady (CPC).

    20 81 FR 53929 (Aug. 15, 2016).

    III. Proposed Action

    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).

    21 81 FR 42600 (June 30, 2016).

    A. The EPA's Evaluation of Control Technology Demonstration Requirements 1. Rillito Plant Kiln 4

    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.

    2. Clarkdale Plant Kiln 4

    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.

    B. Revised Recordkeeping and Reporting Requirements

    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.

    C. Non-Interference With Applicable 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).

    22 42 U.S.C. 7410(l).

    IV. Public Comments and EPA Responses

    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.

    23 Letter dated July 13, 2016, from Verle C. Martz (PCC) to Vijay Limaye (EPA).

    24 Letter dated August 15, 2016, from Jay M. Grady (CPC) to Vijay Limaye (EPA).

    25 Letter dated August 12, 2016, from Michael Hiatt (Earthjustice) to Vijay Limaye (EPA).

    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:

    If EPA is going to revise the existing FIP's requirements based on recent data from a cement plant in California, it should also examine the recent success of SCR controls at the cement plants in Illinois and Texas. Reconsidering the FIP's requirements based on recent data from other plants should not be a one-way ratchet toward weakening the FIP's requirements. Instead, in order to make a reasonable and fully-informed decision on reconsideration, EPA should also re-examine whether more stringent SCR controls are warranted. [Footnote omitted] 26

    26Ibid.

    The comment letter concludes: “Given this recent information documenting the success of SCR at cement plants, EPA should reconsider whether SCR at the Rillito and Clarkdale plants is necessary to ensure reasonable progress.” 27

    27Ibid.

    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:

    In the current rulemaking, EPA proposes to relax the existing FIP requirements for the Rillito and Clarkdale cement plants because of recent information regarding SNCR performance on other cements kilns in the United States. 81 FR at 42602-03. Specifically, EPA has reviewed recent SNCR performance data from the Mojave cement plant in California. EPA believes this recent SNCR data from California justifies replacing the existing “control optimization” requirements for the two Arizona plants with less stringent recordkeeping and reporting requirements.28

    28Ibid.

    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.

    V. Final Action

    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.

    29 40 CFR 52.145(n); 81 FR 53929 (Aug. 15, 2016).

    VI. Environmental Justice Considerations

    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.

    VII. Statutory and Executive Order Reviews

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

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is 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.

    B. Paperwork Reduction Act (PRA)

    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).

    C. Regulatory Flexibility Act (RFA)

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

    30See Taiheiyo Cement Corporation Annual Report 2015 at 1 and 36.

    31 Letter dated December 20, 2012, from Diane Enos (SRPMIC) to Jared Blumenfield (EPA).

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538. 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

    32 Memorandum dated June 15, 2016, from Charlotte Withey (EPA) to Rulemaking Docket EPA-R09-OAR-2015-0846, Subject: “Summary of Consultation with SRPMIC Regarding Regional Haze FIP Reconsideration.”

    E. Executive Order 13132: Federalism

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

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action 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

    33Id.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

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

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

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

    I. National Technology Transfer and Advancement Act

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

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

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

    K. Determination Under Section 307(d)

    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).

    L. Congressional Review Act (CRA)

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

    M. Petitions for Judicial Review

    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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Visibility.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 4, 2016. Gina McCarthy, Administrator.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona 2. Amend § 52.145 by: a. Revising paragraph (k); and b . Removing “Appendix A to § 52.145—Cement Kiln Control Technology Demonstration Requirements”.

    The revision reads as follows:

    § 52.145 Visibility protection.

    (k) Source-specific federal implementation plan for regional haze at Clarkdale Cement Plant and Rillito Cement Plant—(1) Applicability. This paragraph (k) applies to each owner/operator of the following cement kilns in the state of Arizona: Kiln 4 located at the cement plant in Clarkdale, Arizona, and kiln 4 located at the cement plant in Rillito, Arizona.

    (2) Definitions. Terms not defined in this paragraph (k)(2) shall have the meaning given them in the Clean Air Act or EPA's regulations implementing the Clean Air Act. For purposes of this paragraph (k):

    Ammonia injection shall include any of the following: Anhydrous ammonia, aqueous ammonia or urea injection.

    Continuous emission monitoring system or CEMS means the equipment required by this section to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system), a permanent record of NOX emissions, diluent, or stack gas volumetric flow rate.

    Kiln operating day means a 24-hour period between 12 midnight and the following midnight during which the kiln operates at any time.

    Kiln operation means any period when any raw materials are fed into the kiln or any period when any combustion is occurring or fuel is being fired in the kiln.

    NO X means nitrogen oxides.

    Owner/operator means any person who owns or who operates, controls, or supervises a cement kiln identified in paragraph (k)(1) of this section.

    Unit means a cement kiln identified in paragraph (k)(1) of this section.

    (3) Emissions limitations. (i) The owner/operator of kiln 4 of the Clarkdale Plant, as identified in paragraph (k)(1) of this section, shall not emit or cause to be emitted from kiln 4 NOX in excess of 2.12 pounds of NOX per ton of clinker produced, based on a rolling 30-kiln operating day basis.

    (ii) The owner/operator of kiln 4 of the Rillito Plant, as identified in paragraph (k)(1) of this section, shall not emit or cause to be emitted from kiln 4 NOX in excess of 3.46 pounds of NOX per ton of clinker produced, based on a rolling 30-kiln operating day basis.

    (4) Alternative emissions limitation. In lieu of the emission limitation listed in paragraph (k)(3)(i) of this section, the owner/operator of kiln 4 of the Clarkdale Plant may choose to comply with the following limitation by providing notification per paragraph (k)(13)(iv) of this section. The owner/operator of kiln 4 of the Clarkdale Plant, as identified in paragraph (k)(1) of this section, shall not emit or cause to be emitted from kiln 4 NOX in excess of 810 tons per year, based on a rolling 12-month basis.

    (5) Compliance date. (i) The owner/operator of each unit identified in paragraph (k)(1) of this section shall comply with the NOX emissions limitations and other NOX-related requirements of this paragraph (k)(3) of this section no later than December 31, 2018.

    (ii) If the owner/operator of the Clarkdale Plant chooses to comply with the emission limit of paragraph (k)(4) of this section in lieu of paragraph (k)(3)(i) of this section, the owner/operator shall comply with the NOX emissions limitations and other NOX-related requirements of paragraph (k)(4) of this section no later than December 31, 2018.

    (6) [Reserved]

    (7) Compliance determination

    (i) Continuous emission monitoring system. (A) At all times after the compliance date specified in paragraph (k)(5) of this section, the owner/operator of the unit at the Clarkdale Plant shall maintain, calibrate, and operate a CEMS, in full compliance with the requirements found at 40 CFR 60.63(f) and (g), to accurately measure concentration by volume of NOX, diluent, and stack gas volumetric flow rate from the in-line/raw mill stack, as well as the stack gas volumetric flow rate from the coal mill stack. The CEMS shall be used by the owner/operator to determine compliance with the emission limitation in paragraph (k)(3) of this section, in combination with data on actual clinker production. The owner/operator must operate the monitoring system and collect data at all required intervals at all times the affected unit is operating, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments).

    (B) At all times after the compliance date specified in paragraph (k)(5) of this section, the owner/operator of the unit at the Rillito Plant shall maintain, calibrate, and operate a CEMS, in full compliance with the requirements found at 40 CFR 60.63(f) and (g), to accurately measure concentration by volume of NOX, diluent, and stack gas volumetric flow rate from the unit. The CEMS shall be used by the owner/operator to determine compliance with the emission limitation in paragraph (k)(3) of this section, in combination with data on actual clinker production. The owner/operator must operate the monitoring system and collect data at all required intervals at all times the affected unit is operating, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments).

    (ii) Methods. (A) The owner/operator of each unit shall record the daily clinker production rates.

    (B)(1) The owner/operator of each unit shall calculate and record the 30-kiln operating day average emission rate of NOX, in pounds per ton (lb/ton) of clinker produced, as the total of all hourly emissions data for the cement kiln in the preceding 30-kiln operating days, divided by the total tons of clinker produced in that kiln during the same 30-day operating period, using the following equation:

    ER21NO16.024 Where: E[D] = 30 kiln operating day average emission rate of NOX, lb/ton of clinker; C[i] = Concentration of NOX for hour i as recorded by the CEMS required by paragraph (k)(7)(i) of this section, ppm; Q[i] = volumetric flow rate of effluent gas for hour i as recorded by the CEMS required by paragraph (k)(7)(i) of this section, where C[i] and Q[i] are on the same basis (either wet or dry), scf/hr; P[i] = total kiln clinker produced during production hour i, ton/hr; k = conversion factor, 1.194 × 10 7 for NOX; and n = number of kiln operating hours over 30 kiln operating days, n = 1 up to 720.

    (2) For each kiln operating hour for which the owner/operator does not have at least one valid 15-minute CEMS data value, the owner/operator must use the average emissions rate in pounds per ton (lb/hr) from the most recent previous hour for which valid data are available. Hourly clinker production shall be determined by the owner/operator in accordance with the requirements found at 40 CFR 60.63(b).

    (C) At the end of each kiln operating day, the owner/operator shall calculate and record a new 30-day rolling average emission rate in lb/ton clinker from the arithmetic average of all valid hourly emission rates for the current kiln operating day and the previous 29 successive kiln operating days.

    (D) Upon and after the completion of installation of ammonia injection on a unit, the owner/operator shall install, and thereafter maintain and operate, instrumentation to continuously monitor and record levels of ammonia injection for that unit.

    (8) Alternative compliance determination. If the owner/operator of the Clarkdale Plant chooses to comply with the emission limits of paragraph (k)(4) of this section, this paragraph may be used in lieu of paragraph (k)(7) of this section to demonstrate compliance with the emission limits in paragraph (k)(4) of this section.

    (i) Continuous emission monitoring system. At all times after the compliance date specified in paragraph (k)(5) of this section, the owner/operator of the unit at the Clarkdale Plant shall maintain, calibrate, and operate a CEMS, in full compliance with the requirements found at 40 CFR 60.63(f) and (g), to accurately measure concentration by volume of NOX, diluent, and stack gas volumetric flow rate from the in-line/raw mill stack, as well as the stack gas volumetric flow rate from the coal mill stack. The CEMS shall be used by the owner/operator to determine compliance with the emission limitation in paragraph (k)(4) of this section. The owner/operator must operate the monitoring system and collect data at all required intervals at all times the affected unit is operating, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments).

    (ii) Method. Compliance with the ton per year NOX emission limit described in paragraph (k)(4) of this section shall be determined based on a rolling 12-month basis. The rolling 12-month NOX emission rate for the kiln shall be calculated within 30 days following the end of each calendar month in accordance with the following procedure: Step one, sum the hourly pounds of NOX emitted for the month just completed and the eleven (11) months preceding the month just completed, to calculate the total pounds of NOX emitted over the most recent twelve (12) month period for that kiln; Step two, divide the total pounds of NOX calculated from Step one by two thousand (2,000) to calculate the total tons of NOX. Each rolling 12-month NOX emission rate shall include all emissions that occur during all periods within the 12-month period, including emissions from startup, shutdown and malfunction.

    (iii) Upon and after the completion of installation of ammonia injection on the unit, the owner/operator shall install, and thereafter maintain and operate, instrumentation to continuously monitor and record levels of ammonia injection for that unit.

    (9) Recordkeeping. The owner/operator of each unit shall maintain the following records for at least five years:

    (i) All CEMS data, including the date, place, and time of sampling or measurement; emissions and parameters sampled or measured; and results.

    (ii) All records of clinker production.

    (iii) Daily 30-day rolling emission rates of NOX, calculated in accordance with paragraph (k)(7)(ii) of this section.

    (iv) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records specified by 40 CFR part 60, Appendix F, Procedure 1.

    (v) Records of ammonia injection, as recorded by the instrumentation required in paragraph (k)(7)(ii)(D) of this section.

    (vi) Records of all major maintenance activities conducted on emission units, air pollution control equipment, CEMS and clinker production measurement devices.

    (vii) Any other records specified by 40 CFR part 60, subpart F, or 40 CFR part 60, Appendix F, Procedure 1.

    (10) Alternative recordkeeping requirements. If the owner/operator of the Clarkdale Plant chooses to comply with the emission limits of paragraph (k)(4) of this section, the owner/operator shall maintain the records listed in this paragraph in lieu of the records contained in paragraph (k)(9) of this section. The owner or operator shall maintain the following records for at least five years:

    (i) All CEMS data, including the date, place, and time of sampling or measurement; emissions and parameters sampled or measured; and results.

    (ii) Monthly rolling 12-month emission rates of NOX, calculated in accordance with paragraph (k)(8)(ii) of this section.

    (iii) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records specified by 40 CFR part 60, Appendix F, Procedure 1.

    (iv) Records of ammonia injection, as recorded by the instrumentation required in paragraph (k)(8)(iii) of this section.

    (v) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS measurement devices.

    (vi) Any other records specified by 40 CFR part 60, subpart F, or 40 CFR part 60, Appendix F, Procedure 1.

    (11) Reporting. All reports and notifications required under this paragraph (k) shall be submitted by the owner/operator to U.S. Environmental Protection Agency, Region 9, Enforcement Division via electronic mail to [email protected] and to Air Division via electronic mail to [email protected] Reports required under this paragraph (k)(11)(iii) through (k)(11)(vii) of this section shall be submitted within 30 days after the applicable compliance date in paragraph (k)(5) of this section and at least semiannually thereafter, within 30 days after the end of a semiannual period. The owner/operator may submit reports more frequently than semiannually for the purposes of synchronizing reports required under this section with other reporting requirements, such as the title V monitoring report required by 40 CFR 70.6(a)(3)(iii)(A), but at no point shall the duration of a semiannual period exceed six months.

    (i) Prior to commencing construction of the ammonia injection system, the owner/operator shall submit to the EPA a report describing the design of the SNCR system. This report shall include: reagent type, description of the locations selected for reagent injection, reagent injection rate (expressed as a molar ratio of reagent to exhaust gas), equipment list, equipment arrangement, and a summary of kiln characteristics that were relied upon as the design basis for the SNCR system.

    (ii) Within 30 days following the NOX compliance date in paragraph (k)(5)(i) of this section, the owner/operator shall submit to the EPA a report of any process improvement or debugging activities that were performed on the SNCR system. This report shall include: a description of each process adjustment performed on the SNCR system or the kiln, a discussion of whether the adjustment affected NOX emission rates, a description of the range (if applicable) over which the adjustment was examined, and a discussion of how the adjustment will be reflected or accounted for in kiln operating practices. If CEMS data or kiln operating data were recorded during process improvement or debugging activities, the owner/operator shall submit the recorded CEMS and kiln operating data with the report. The data shall be submitted in an electronic format consistent with and able to be manipulated by a spreadsheet program such as Microsoft Excel.

    (iii) The owner/operator shall submit a report that lists the daily 30-day rolling emission rates for NOX.

    (iv) The owner/operator shall submit excess emissions reports for NOX limits. Excess emissions means emissions that exceed the emissions limits specified in paragraph (k)(3) of this section. The reports shall include the magnitude, date(s), and duration of each period of excess emissions, specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.

    (v) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.

    (vi) The owner/operator shall also submit results of any CEMS performance tests specified by 40 CFR part 60, Appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).

    (vii) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the reports required by paragraph (k)(9)(ii) of this section.

    (12) Alternative reporting requirements. If the owner/operator of the Clarkdale Plant chooses to comply with the emission limits of paragraph (k)(4) of this section, the owner/operator shall submit the reports listed in this paragraph in lieu of the reports contained in paragraph (k)(11) of this section. All reports required under this paragraph (k)(12) shall be submitted within 30 days after the applicable compliance date in paragraph (k)(5) of this section and at least semiannually thereafter, within 30 days after the end of a semiannual period. The owner/operator may submit reports more frequently than semiannually for the purposes of synchronizing reports required under this section with other reporting requirements, such as the title V monitoring report required by 40 CFR 70.6(a)(3)(iii)(A), but at no point shall the duration of a semiannual period exceed six months.

    (i) The owner/operator shall submit a report that lists the monthly rolling 12-month emission rates for NOX.

    (ii) The owner/operator shall submit excess emissions reports for NOX limits. Excess emissions means emissions that exceed the emissions limits specified in paragraph (k)(3) of this section. The reports shall include the magnitude, date(s), and duration of each period of excess emissions, specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.

    (iii) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.

    (iv) The owner/operator shall also submit results of any CEMS performance tests specified by 40 CFR part 60, Appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).

    (v) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the reports required by paragraph (k)(9)(ii) of this section.

    (13) Notifications. (i) The owner/operator shall submit notification of commencement of construction of any equipment which is being constructed to comply with the NOX emission limits in paragraph (k)(3) of this section.

    (ii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.

    (iii) The owner/operator shall submit notification of initial startup of any such equipment.

    (iv) By June 30, 2018, the owner/operator of the Clarkdale Plant shall notify EPA Region 9 by letter whether it will comply with the emission limits in paragraph (k)(3)(i) of this section or whether it will comply with the emission limits in paragraph (k)(4) of this section. In the event that the owner/operator does not submit timely and proper notification by June 30, 2018, the owner/operator of the Clarkdale Plant may not choose to comply with the alternative emission limits in paragraph (k)(4) of this section and shall comply with the emission limits in paragraph (k)(3)(i) of this section.

    (14) Equipment operation. (i) At all times, including periods of startup, shutdown, and malfunction, the owner or operator shall, to the extent practicable, maintain and operate the unit including associated air pollution control equipment in a manner consistent with good air pollution control practices for minimizing emissions. Pollution control equipment shall be designed and capable of operating properly to minimize emissions during all expected operating conditions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the Regional Administrator which may include, but is not limited to, monitoring results, review of operating and maintenance procedures, and inspection of the unit.

    (ii) After completion of installation of ammonia injection on a unit, the owner or operator shall inject sufficient ammonia to achieve compliance with NOX emission limits set forth in paragraph (k)(3) of this section for that unit while preventing excessive ammonia emissions.

    (15) Enforcement. Notwithstanding any other provision in this implementation plan, any credible evidence or information relevant as to whether the unit would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed, can be used to establish whether or not the owner or operator has violated or is in violation of any standard or applicable emission limit in the plan.

    [FR Doc. 2016-27422 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0767; FRL-9955-19-Region 4] Air Plan Approval; KY Infrastructure Requirements for the 2010 1-Hour NO2 NAAQS AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve portions of the State Implementation Plan (SIP) submission, submitted by the Commonwealth of Kentucky, Energy and Environment Cabinet, Department for Environmental Protection, through the Kentucky Division for Air Quality (KDAQ), on April 26, 2013, to demonstrate that the Commonwealth meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. KDAQ certified that Kentucky's SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Kentucky. EPA has determined that portions of Kentucky's infrastructure submission, submitted on April 26, 2013, addresses certain required infrastructure elements for the 2010 1-hour NO2 NAAQS.

    DATES:

    This rule will be effective December 21, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0767. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    II. Final 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.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 3, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart S—Kentucky 2. In § 52.920, the table in paragraph (e) is amended by adding the entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS” at the end of the table to read as follows:
    § 52.920 Identification of plan.

    (e) * * *

    EPA-Approved Kentucky Non-Regulatory Provisions Name of non-regulatory SIP provision Applicable
  • geographic or
  • nonattainment area
  • State submittal
  • date/effective
  • date
  • EPA approval date Explanations
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS Kentucky 4/26/2013 11/21/2016, [insert Federal Register citation] With the exception of the regulation of new minor sources and minor modifications under section 110(a)(2)(C), section 110(a)(2)(D)(i)(I) and (II) (prongs 1-4) and the PSD requirements of section 110(a)(2)(J).
    [FR Doc. 2016-27538 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0819; FRL-9954-78-Region 9] Revisions to the California State Implementation Plan; South Coast Air Quality Management District; Control of Oxides of Nitrogen Emissions From Off-Road Diesel Vehicles AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve South Coast Air Quality Management District (SCAQMD or “the District”) Rule 2449, Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles, as a revision to the SCAQMD portion of the California State Implementation Plan (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.” SCAQMD Rule 2449 requires certain in-use off-road vehicle fleets to meet more stringent requirements in the South Coast area when funding is provided by the District in order to achieve additional reductions of oxides of nitrogen (NOX).

    DATES:

    This rule will be effective on December 21, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2015-0819. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Laura Lawrence, EPA Region IX, (415) 947-3407, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Summary of Proposed Action II. Public Comments and the EPA's Responses III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Summary of Proposed Action

    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.

    1See letter dated October 6, 2016, from Jack Kitowski, Chief, CARB Mobile Source Control Division to Henry Hogo, Deputy Executive Officer, SCAQMD.

    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.

    II. Public Comments and the EPA's Responses

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

    III. Final Action

    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.

    IV. Incorporation by Reference

    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).

    V. Statutory and Executive Order Reviews

    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)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

    Dated: October 18, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraph (c)(482) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (482) New regulations for the following APCDs were submitted on September 5, 2014 by the Governor's designee.

    (i) Incorporation by reference.

    (A) South Coast Air Quality Management District.

    (1) Rule 2449, “Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles,” amended on July 11, 2014.

    [FR Doc. 2016-27853 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0425; FRL-9955-32-Region 4] Air Quality Plan; Georgia; Infrastructure Requirements for the 2012 PM2.5 NAAQS AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a portion of the State Implementation Plan (SIP) submission, submitted by the State of Georgia, through the Georgia Department of Natural Resources, Environmental Protection Division, on December 14, 2015, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 annual fine particulate matter (PM2.5) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” Georgia certified that its SIP contains provisions that ensure the 2012 Annual PM2.5 NAAQS is implemented, enforced, and maintained in Georgia. EPA is approving portions of Georgia's infrastructure SIP submission, provided to EPA on December 14, 2015, as satisfying certain required infrastructure elements for the 2012 Annual PM2.5 NAAQS.

    DATES:

    This rule will be effective December 21, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0425. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Bell can be reached via electronic mail at [email protected] or via telephone at (404) 562-9088.

    SUPPLEMENTARY INFORMATION:

    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.

    II. Final Action

    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.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 3, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart L—Georgia 2. In § 52.570, the table in paragraph (e) is amended by adding the entry “110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS” at the end of the table to read as follows:
    § 52. 570 Identification of plan.

    (e) * * *

    EPA-Approved Georgia Non-Regulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date/effective date EPA approval date Explanation *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS Georgia 12/14/2015 11/21/2016, [insert Federal Register citation] With the exception of sections 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2 and 4).
    [FR Doc. 2016-27857 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA R05 OAR 2015-0599; FRL-9955-37-Region 5] Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    In accordance with the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is redesignating the Ohio portion of the Campbell-Clermont KY-OH sulfur dioxide (SO2) nonattainment area from nonattainment to attainment. The Ohio portion of this area consists of Pierce Township in Clermont County, Ohio. EPA is also approving Ohio's maintenance plan, submitted on August 11, 2015. The primary emission source in the area has permanently closed, and the air quality in the area is now meeting the SO2 standard. EPA received one comment in support of the redesignation.

    DATES:

    This final rule is effective on November 21, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2015-0599. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Mary Portanova, Environmental Engineer, at (312) 353-5954 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background II. What comments were received on the proposal? III. How does this affect the finding of failure to submit? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. Background

    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.

    II. What comments were received on the proposal?

    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.

    III. How does this affect the finding of failure to submit?

    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.

    IV. What action is EPA taking?

    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.

    V. Statutory and Executive Order Reviews

    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).)

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.

    40 CFR Part 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Dated: November 9, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.

    40 CFR parts 52 and 81 are amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. In § 52.1870 the table in paragraph (e) is amended by adding an entry for “SO2 (2010)” in alphabetical order under “Summary of Criteria Pollutant Maintenance Plan” to read as follows:
    § 52.1870 Identification of plan.

    (e) * * *

    EPA-Approved Ohio Nonregulatory And Quasi-Regulatory Provisions Title Applicable geographical or non-attainment area State date EPA approval Comments *         *         *         *         *         * Summary of Criteria Pollutant Maintenance Plan *         *         *         *         *         * SO2 (2010) Campbell-Clermont (Pierce Township in Clermont County) 8/11/2015 11/21/2016, [insert Federal Register citation] *         *         *         *         *         *
    3. Section 52.1881 is amended by adding paragraph (a)(16) to read as follows:
    § 52.1881 Control strategy: Sulfur oxides (sulfur dioxide).

    (a) * * *

    (16) Approval—The 2010 SO2 maintenance plan for the Ohio portion of the Campbell-Clermont KY-OH (Pierce Township, Clermont County), has been approved as submitted on August 11, 2015.

    PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 4. The authority citation for part 81 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    5. Section 81.336 is amended by revising the entry for “Campbell-Clermont Counties, KY-OH” in the table entitled “Ohio—2010 Sulfur Dioxide NAAQS [Primary]” to read as follows:
    § 81.336 Ohio. Ohio—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Campbell-Clermont Counties, KY-OH 1 11/21/16 Attainment. Clermont County (part): Pierce Township *         *         *         *         *         * 1 Excludes Indian country located in each area, if any, unless otherwise specified.
    [FR Doc. 2016-27852 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2016-0382; FRL-9955-20-OAR] RIN 2060-AT15 Revisions to Procedure 2—Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to update a procedure in the New Source Performance Standards (NSPS). The procedure provides the ongoing quality assurance/quality control (QA/QC) procedures for assessing the acceptability of particulate matter (PM) continuous emissions monitoring systems (CEMS). The procedure explains the criteria for passing an annual response correlation audit (RCA) and the criteria for passing an annual relative response audit (RRA). The procedure currently contains a requirement that the annual QA/QC test results for affected facilities must fall within the same response range that was used to develop the existing PM CEMS correlation curve. As a result, some facilities are unable to meet the criteria for passing their annual QA/QC test because their emissions are now lower than the range previously set during their correlation testing. We are modifying the procedure to allow facilities to extend their PM CEMS correlation regression line to the lowest PM CEMS response obtained during the annual RCA or RRA, when these PM CEMS responses are less than the lowest response used to develop the existing correlation curve. 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 procedure.

    DATES:

    This rule is effective on February 21, 2017 without further notice, unless the EPA receives adverse comment by December 21, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2016-0382, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (e.g., on the Web, Cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Questions concerning this direct final rule should be addressed to Ms. Kimberly Garnett, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Measurement Technology Group (E143-02), Research Triangle Park, NC 27711; telephone number: (919) 541-1158; fax number: (919) 541-0516; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. General Information A. Why is the EPA using a direct final rule? B. Does this action apply to me? C. Where can I obtain a copy of this action? D. Judicial Review II. This Final Action III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Determination Under Section 307(d) I. General Information A. Why is the EPA using a direct final rule?

    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.

    B. Does this action apply to me?

    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.

    C. Where can I obtain a copy of this action?

    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.

    D. Judicial Review.

    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.

    II. This Final Action

    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.

    III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

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

    B. Paperwork Reduction Act (PRA)

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

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. There are no small entities in the regulated industry for which Procedure 2 applies.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

    E. Executive Order 13132: Federalism

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

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. 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.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

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

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action 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.

    K. Congressional Review Act

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

    L. Determination Under Section 307(d)

    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.”

    List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, Air pollution control, Continuous emission monitoring systems, Particulate matter, Procedures.

    Dated: November 8, 2016. Gina McCarthy, Administrator.

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

    PART 60—STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 1. The authority citation for Part 60 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. In Appendix F, Procedure 2, in section 10.4, paragraphs (5) and (6) are revised to read as follows: Appendix F to Part 60—Quality Assurance Procedures Procedure 2—Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources

    10.4 * * *

    (5) What are the criteria for passing a RCA? To pass a RCA, you must meet the criteria specified in paragraphs (5)(i) through (iii) of this section. If your PM CEMS fails to meet these RCA criteria, it is out of control, with the following exception: If any of the PM CEMS response values resulting from your RCA are lower than the lowest PM CEMS response value of your existing correlation curve, you may extend your correlation regression line to the point corresponding to the lowest PM CEMS response value obtained during the RCA. This extended correlation regression line must then be used to determine if the RCA data meets the criteria specified in paragraphs (5)(i) through (iii) of this section.

    (i) For all 12 data points, the PM CEMS response value can be no greater than the greatest PM CEMS response value used to develop your correlation curve.

    (ii) For 9 of the 12 data points, the PM CEMS response value must lie within the PM CEMS output range used to develop your correlation curve.

    (iii) At least 75 percent of a minimum number of 12 sets of PM CEMS and reference method measurements must fall within a specified area on a graph of the correlation regression line. The specified area on the graph of the correlation regression line is defined by two lines parallel to the correlation regression line, offset at a distance of ±25 percent of the numerical emission limit value from the correlation regression line.

    (6) What are the criteria to pass a RRA? To pass a RRA, you must meet the criteria specified in paragraphs (6)(i) through (iii) of this section. If your PM CEMS fails to meet these RRA criteria, it is out of control, with the following exception: If any of the PM CEMS response values resulting from your RRA are lower than the lowest PM CEMS response value of your existing correlation curve, you may extend your correlation regression line to the point corresponding to the lowest PM CEMS response value obtained during the RRA; this extended correlation regression line must then be used to determine if the RRA data meets the criteria specified in paragraphs (6)(i) through (iii) of this section.

    (i) For all three data points, the PM CEMS response value can be no greater than the greatest PM CEMS response value used to develop your correlation curve.

    (ii) For two of the three data points, the PM CEMS response value must lie within the PM CEMS output range used to develop your correlation curve.

    (iii) At least two of the three sets of PM CEMS and reference method measurements must fall within the same specified area on a graph of the correlation regression line as required for the RCA and described in paragraph (5)(iii) of this section.

    [FR Doc. 2016-27849 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 EPA-HQ-OPP-2014-0613; FRL-9953-97] Endothall; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of endothall in or on multiple commodities which are identified and discussed later in this document. United Phosphorus, Inc. requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective November 21, 2016. Objections and requests for hearings must be received on or before January 20, 2017 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0613, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

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

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-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.

    II. Summary of Petitioned-for Tolerance

    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.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

    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.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which 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.

    Table 1—Summary of Toxicological Doses and Endpoints for Endothall for Use in Human Health Risk Assessment Exposure/scenario Point of departure and uncertainty/
  • safety factors
  • RfD, PAD, LOC for risk assessment Study and toxicological effects
    Acute dietary An appropriate endpoint attributable to a single dose was not available from any study. An acute RfD was not established. Chronic dietary (All populations) LOAEL= 2 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF
  • UFL = 3x
  • Chronic RfD = 0.007 mg/kg/day
  • cPAD = 0.007 mg/kg/day
  • Rat 2-generation reproduction study.
  • LOAEL = 2 mg/kg/day based on proliferative lesions of the gastric epithelium (both sexes).
  • Short-term Incidental oral (1 to 30 days) Offspring NOAEL= 9.4 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential
  • LOC for MOE = 100
  • Occupational = N/A
  • Rat 2-generation reproduction study.
  • LOAEL = 60 mg/kg/day based on decreased pup body weight (both sexes) on Day 0 in F1 and F2 generations.
  • Short-term Inhalation (1 to 30 days) NOAEL = 0.001 mg/L
  • Residential HEC = 0.00049 mg/L (HED = 0.0143 mg/kg/day)
  • Inhalation (or oral) study NOAEL = 0.001mg/L mg/kg/day (inhalation absorption rate = 100%)
  • UFA = 3x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 30 Subchronic inhalation toxicity study (MRID 47872201).
  • Residential acute scenario: LOAEL = 0.005 mg/L based on clinical signs (rales and labored respiration) observed acutely (0-1 hr postdosing and prior to next exposure).
  • Cancer (Oral, dermal, inhalation) Classified as a “Not Likely” human carcinogen. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL. HEC = Human Equivalent Concentration.
    C. Exposure Assessment

    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.

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. 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.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. 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.

    IV. Other Considerations A. Analytical Enforcement Methodology

    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]

    B. International Residue Limits

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

    C. Revisions to Petitioned-for Tolerances

    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.

    D. International Trade Considerations

    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.

    V. Conclusion

    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.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: October 13, 2016. Michael Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. Amend the table in § 180.293 paragraph (d) as follows: a. Revise the entries for “Cattle, fat”, “Cattle, meat”, “Goat, fat”, “Goat, meat”, “Hog, fat”, “Hog, meat”, “Poultry, fat”, “Poultry, meat”, “Sheep, fat, and “Sheep, meat”; b. Add alphabetically footnotes for the entries “Cattle, kidney 1”, “Cattle, liver 1”, “Goat, kidney 1”, “Hog, kidney 1”, “Milk”, “Poultry, meat byproducts 1”, and “Sheep, kidney 1”; and c. Add alphabetically the entries for “Cattle, kidney”, “Cattle, liver”, “Goat, kidney”, “Hog, kidney”, “Milk”, “Poultry, meat byproducts”, and “Sheep, kidney”.

    The revisions and additions read as follows:

    § 180.293 Endothall; tolerances for residues.

    (d) * * *

    Commodity Parts per million *    *    *    *    * Cattle, fat 0.05 Cattle, kidney 1 0.20 Cattle, kidney 0.05 Cattle, liver 1 0.10 Cattle, liver 0.05 Cattle, meat 0.05 *    *    *    *    * Goat, fat 0.05 Goat, kidney 1 0.15 Goat, kidney 0.05 *    *    *    *    * Goat, meat 0.05 *    *    *    *    * Hog, fat 0.05 Hog, kidney 1 0.10 Hog, kidney 0.05 *    *    *    *    * Hog, meat 0.05 Milk 1 0.03 Milk 0.01 *    *    *    *    * Poultry, fat 0.05 *    *    *    *    * Poultry, meat 0.05 Poultry, meat byproducts 1 0.20 Poultry, meat byproducts 0.05 *    *    *    *    * Sheep, fat 0.05 Sheep, kidney 1 0.15 Sheep, kidney 0.05 *    *    *    *    * Sheep, meat 0.05 *    *    *    *    * 1 This tolerance expires on May 22, 2017.
    [FR Doc. 2016-27984 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    GENERAL SERVICES ADMINISTRATION 41 CFR Parts 101-42 and 101-45 [FPMR-Amendment 2016-01; FPMR-TechAmdt-2016-01; Docket No. 2007-0001; Sequence No. 6] Federal Property Management Regulations; Technical Amendments AGENCY:

    Office of Government-wide Policy, General Services Administration (GSA).

    ACTION:

    Final rule.

    SUMMARY:

    GSA is amending the Federal Property Management Regulations (FPMR) to delete repetitive information that has already migrated to the Federal Management Regulation (FMR).

    DATES:

    Effective: November 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Robert Holcombe, Director, Personal Property Policy, at 202-501-3828, or email [email protected] for clarification of content. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405, or 202-501-4755. Please cite FPMR-Tech Amdt-2016-01; Technical Amendments.

    SUPPLEMENTARY INFORMATION: Background

    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.

    List of Subjects in 41 CFR Part 101-42 and 101-45

    Disposition of personal property with special handling requirements; sale, abandonment or destruction of personal property.

    Dated: November 9, 2016. Denise Turner Roth, Administrator of General Services.

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

    PART 101-42—DISPOSITION OF PERSONAL PROPERTY WITH SPECIAL HANDLNG REQUIREMENTS 1. The authority for part 101-42 is revised to read as follows: Authority:

    Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).

    § 101-42.001—101-42.1102-10 [Removed]
    2. Remove sections 101-42.001 through 101-42.1102-10. PART 101-45—SALE, ABANDONMENT, OR DESTRUCTION OF PERSONAL PROPERTY 3. The authority for part 101-45 continues to read as follows: Authority:

    40 U.S.C. 545 and 40 U.S.C. 121(c).

    § 101-45.001—101-45.004 [Removed]
    4. Remove sections 101-45.001 through 101-45.004.
    [FR Doc. 2016-28010 Filed 11-18-16; 8:45 am] BILLING CODE 6820-14-P
    81 224 Monday, November 21, 2016 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 551 RIN 3206-AN41 Pay Administration Under the Fair Labor Standards Act AGENCY:

    U.S. Office of Personnel Management.

    ACTION:

    Proposed rule.

    SUMMARY:

    The U.S. Office of Personnel Management (OPM) proposes to revise the regulations issued under the Fair Labor Standards Act of 1938, as amended (“FLSA” or “Act”). The revised regulations are intended to provide a clearer understanding of coverage under the Act and to ensure that the FLSA's intended overtime protections are fully implemented. By way of this rulemaking, OPM seeks to harmonize OPM's regulations with revisions made to the Department of Labor's (DOL) FLSA regulations by updating the salary-based nonexemption level and by providing for future automatic updates to that level consistent with the automatic updating mechanism utilized in DOL's FLSA regulations.

    DATES:

    Comments must be received on or before December 21, 2016.

    ADDRESSES:

    You may submit comments, identified by RIN number “3206-AN41,” using either of the following methods:

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

    Email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Adam Garcia (813) 616-9296, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The U.S. Office of Personnel Management (OPM) is publishing a proposed rule to amend regulations issued under the Fair Labor Standards Act of 1938, as amended (“FLSA” or “Act”). The purpose of this amendment is to update and harmonize OPM's FLSA regulations with certain changes made by the Department of Labor (DOL), Wage and Hour Division, 29 CFR part 541, RIN 1235-AA11, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (Federal Register, Vol. 81, No. 99, dated May 23, 2016).

    OPM proposes to update the salary-based nonexemption level, increasing it to the annual rate of basic pay of $47,476, in order to ensure that the FLSA's intended overtime protections are fully implemented, and to simplify the identification of nonexempt employees, thus making the exemption easier for agency employers and employees to understand. OPM also proposes to make future automatic updates to the salary level to prevent the level from becoming outdated due to the often lengthy passage of time between rulemakings by incorporating the same automatic updating methodology utilized in the U.S. Department of Labor's (DOL) FLSA regulations.

    Background

    Part 551 provides the regulations, criteria, and conditions set forth by OPM as prescribed by the Fair Labor Standards Act (“FLSA” or “Act”). OPM's administration of the Act must comply with the terms of the Act, but the law does not require OPM's regulations to mirror the DOL's FLSA regulations. OPM's administration of the Act must be consistent with the DOL's administration of the Act only to the extent practicable and only to the extent that this consistency is required to maintain compliance with the terms of the Act.

    The FLSA guarantees a minimum wage and overtime pay at a rate of not less than one and one-half times the employee's regular rate for hours worked in excess of 40 in a workweek. While these protections extend to most employees, the FLSA does provide a number of exemptions. OPM proposes to update and revise the regulations issued under the FLSA implementing the criteria for exemption from the minimum wage and overtime pay provisions. One of the criteria required to qualify as an exempt employee is that the employee must be paid a certain salary level. The salary level required for exemption under OPM's FLSA regulations (5 CFR 551.203) is currently the annual rate of basic pay of $23,660.

    Updates to DOL's FLSA Regulations

    On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department of Labor to update the overtime regulations regarding executive, administrative, and professional employees, who are exempt from the FLSA's minimum wage and overtime standards. 79 FR 18737 (April 3, 2014). Consistent with the President's goal of ensuring workers are paid a fair day's pay for a fair day's work, the memorandum instructed DOL to look for ways to modernize and simplify the regulations while ensuring that the FLSA's intended overtime protections are fully implemented.

    On July 6, 2015, the DOL issued proposed regulations in the Federal Register (80 FR 38515) that updated the salary level under part 541 of title 29, Code of Federal Regulations (CFR), Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Computer and Outside Sales Employees. The final rule, providing an increase to the salary level to $913 per week ($47,476 annually), and providing for automatic updates to the salary level in the future, was issued on May 23, 2016 (81 FR 32391) with an effective date of December 1, 2016. See 29 CFR 541.600, 541.607.

    Proposed Revisions to OPM's FLSA Regulations

    In order to maintain consistency with DOL's updates to the salary level provisions under their FLSA regulations, OPM proposes to revise 5 CFR 551.203 to include the updated salary level (annual rate of basic pay of $47,476). In addition, OPM proposes to include a new paragraph (c) in section 551.203, providing for future automatic updates to the salary level, consistent with the automatic updating mechanism utilized in DOL's FLSA regulations. These updates are being proposed to ensure that the FLSA's intended overtime protections are fully implemented.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.”

    The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. These regulations will not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees.

    Unfunded Mandates Reform Act of 1995

    This rule will not 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 one 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.

    Executive Orders 12866 and 13563—Regulatory Planning and Review

    OPM has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review”. Nevertheless, the Office certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563, “Improving Regulation and Regulatory Review.” 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 consideration of potential economic, environmental, public health, and safety effects, distributive impacts, and equity. The benefits of this proposed rule include simplification of the identification of nonexempt employees, inclusion of a mechanism to prevent the rule from becoming outdated, and harmonization with Department of Labor FLSA regulations. Additionally, the proposed rule provides equity in the treatment of Federal and private sector FLSA minimum wage and overtime pay treatment. The Office does not foresee any burdens to the public.

    Executive Order 13132—Federalism

    This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    Executive Order 12988—Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

    Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this proposed rule because there are no new or revised recordkeeping or reporting requirements.

    List of Subjects in 5 CFR Part 551

    Government employees, and wages.

    U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

    Accordingly, OPM proposes to amend title 5, Code of Federal Regulations, part 551, as follows:

    PART 551—PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT 1. The authority citation for part 551 continues to read as follows: Authority:

    5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29 U.S.C. 204(f)).

    2. Revise § 551.203 to read as follows:
    § 551.203 Salary-based nonexemption.

    (a) An employee, including a supervisory employee, whose annual rate of basic pay is less than $47,476 is nonexempt, unless:

    (1) The employee is subject to § 551.211 (Effect of performing different work or duties for a temporary period of time on FLSA exemption status); or

    (2) The employee is subject to § 551.212 (Foreign exemption criteria); or

    (3) The employee is a professional engaged in the practice of law or medicine as prescribed in paragraphs (c) and (d) of § 551.208.

    (b) For the purpose of this section, “rate of basic pay” means the rate of pay fixed by law or administrative action for the position held by an employee, including any applicable locality payment under 5 CFR part 531, subpart F, special rate supplement under 5 CFR part 530, subpart C, or similar payment or supplement under other legal authority, before any deductions and exclusive of additional pay of any other kind, such as premium payments, differentials, and allowances.

    (c) Beginning on January 1, 2020, and every three years thereafter, the salary-based nonexemption level will be updated to equal the annualized earnings amount of the 40th percentile of weekly earnings of full-time non-hourly workers in the lowest-wage Census Region in the second quarter of the year preceding the update as published by the Bureau of Labor Statistics.

    [FR Doc. 2016-27887 Filed 11-18-16; 8:45 am] BILLING CODE 6325-39-P
    NUCLEAR REGULATORY COMMISSION 10 CFR Part 71 [NRC-2016-0179] RIN 3150-AJ85 Revisions to Transportation Safety Requirements and Compatibility With International Atomic Energy Agency Transportation Standards AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Notice of issues paper, public meeting, and request for comment.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is considering a potential amendment to its regulations that would revise the regulations on packaging and transporting radioactive material. The NRC is gathering information about potential changes that may be proposed in a subsequent rulemaking activity. The NRC is requesting public comment on the issues paper about potential changes that is referenced in this document. The NRC plans to hold a public meeting to promote full understanding of the issues paper and to facilitate public comment.

    DATES:

    Submit comments by January 20, 2017. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received before this date. A public meeting will be held December 5-6, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0179. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    Email comments to: [email protected] If you do not receive an automatic email reply confirming receipt, then contact us at 301-415-1677.

    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.

    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301-415-1677.

    For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Emma Wong, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7091; [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Obtaining Information and Submitting Comments A. Obtaining Information

    Please refer to Docket ID NRC-2016-0179 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0179.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    B. Submitting Comments

    Please include Docket ID NRC-2016-0179 in your comment submission.

    The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as entering the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

    If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

    II. Background

    In accordance with Commission direction, the NRC has initiated a rulemaking effort that addresses the need to make the regulations in part 71 of title 10 of the Code of Federal Regulations (10 CFR), “Packaging and Transportation of Radioactive Material,” compatible with the most current revisions of the International Atomic Energy Agency (IAEA) Specific Safety Requirements (SSR) No. SSR-6, “Regulations for the Safe Transport of Radioactive Material,” (SSR-6). The regulations in 10 CFR part 71 are based, in general, on the specific safety requirements developed by the IAEA. The IAEA has been revising its requirements on an approximate 10-year cycle, with the last edition of IAEA SSR-6 published in 2012 and the current draft of the new revision of SSR-6 expected to be published in 2018. Further, as described below, the NRC is considering other changes to 10 CFR part 71 that are not related to SSR-6.

    To facilitate discussion and public comments, the NRC has prepared an issues paper that describes potential rulemaking issues (IAEA and non-IAEA-related) for the next revision to 10 CFR part 71. The issues paper will be posted at http://www.regulations.gov/docket?D=NRC-2016-0179.

    The issues paper was developed in coordination with the U.S. Department of Transportation (DOT), because the DOT and the NRC co-regulate transportation of radioactive materials in the United States and have historically coordinated to harmonize their respective regulations to these IAEA revisions through the rulemaking process. Coordination ensures that consistent regulatory standards are maintained between the NRC's and the DOT's radioactive material transportation regulations, and coordinated publication of any final rules and associated regulatory guidance documents by each agency.

    III. Regulatory Objectives

    The NRC identified changes made in SSR-6 published in 2012 by comparing it to the previous revision of SSR-6 published in 2009, and then identified affected sections of 10 CFR part 71. Based on this comparison, the NRC identified compatibility issues to potentially be addressed through the rulemaking process. The NRC also identified changes based on the current draft of the new revision of SSR-6, which is expected to be published in 2018. These issues are discussed in greater detail in the issues paper that will be posted at http://www.regulations.gov/docket?D=NRC-2016-0179. The NRC identified additional potential issues for incorporation in the rulemaking action that are also discussed in the issues paper (i.e., changes related to harmonization with DOT regulations and include administrative, editorial, or clarification matters).

    IV. Specific Considerations

    The NRC is seeking to gauge perspectives from the public before proceeding to the development of the proposed rule. The NRC is particularly interested in receiving comment and supporting rationale from the public about the potential changes in the packaging and transportation of radioactive material requirements. The following topics are discussed in the issues paper and will be discussed at the public meeting:

    • Aging • Definitions • Fissile Materials • Low Specific Activity (LSA)—III • NRC-Identified Changes • Reduced External Pressure Requirement for Type A Package Test • Solar Insolation • Surface Contaminated Object (SCO)—III • Transitional Arrangements • Type C Package • UF6 Package

    Specifically, the NRC is interested in public and industry comments related to: (1) Quantitative information expressed as a realistic range of estimated costs and benefits for the potential changes described in the issues paper; (2) operational data about radiation exposures (increased or reduced) that might result from implementing the potential changes; (3) whether the potential changes are appropriate; and (4) whether there are any additional changes that should be considered, and if so, the supporting rationale and quantitative information for the additional change. The NRC will consider the stakeholders' comments to help quantify the potential impact of any proposed changes.

    The NRC will provide another opportunity for public comment in any subsequent proposed rule that may be developed. Comments received in response to this Federal Register document will be considered in any subsequent rulemaking process.

    V. Public Meeting

    The NRC will conduct a public meeting to describe the issues paper and answer clarifying questions from the public about the potential changes in the packaging and transportation of radioactive material requirements. The NRC will not be accepting verbal or written comments at the public meeting. All comments must be submitted as indicated in the ADDRESSES section of this document.

    The meeting will be held on December 5-6, 2016, at Two White Flint North, 11545 Rockville Pike, Rockville, MD 20852-2738, between 9:00 a.m. and 5:00 p.m. in Room T02B03. Public access to the meeting room is through the adjacent building located at One White Flint North, 11555 Rockville Pike.

    This is a Category 3 meeting. Public participation is actively sought for this meeting to fully engage the public in a discussion of regulatory issues. The purpose of the meeting is for the NRC to present the potential changes to the requirements in 10 CFR part 71.

    The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If reasonable accommodation is needed to participate in this meeting, or if a meeting notice or other information about this meeting is needed in another format (e.g., Braille, large print), please notify the individual listed in the FOR FURTHER INFORMATION CONTACT section in this document. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

    Individuals should monitor the NRC's public meeting Web page for information about the public meeting at: http://www.nrc.gov/public-involve/public-meetings/index.cfm where the telephone bridge line and passcode for the meeting will be available. All individuals should register their attendance for the meeting by contacting the individual listed in the FOR FURTHER INFORMATION CONTACT section in this document, or by completing the webinar registration at the NRC's public meeting Web page.

    The NRC may post additional materials to the Federal rulemaking Web site at www.regulations.gov, under Docket ID NRC-2016-0179. The Federal rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2016-0179); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

    VI. Cumulative Effects of Regulation (CER)

    The NRC has implemented a program to address the possible cumulative effects of regulation (CER), in the development of a regulatory basis for a rulemaking. The CER describes the challenges that licensees or other impacted entities (such as shippers, receivers, carriers, and State regulatory agencies) may face while implementing new or revised regulatory positions, programs, and requirements (e.g., rules, generic letters, backfits, inspections). The CER is an organizational effectiveness challenge that results from a licensee or impacted entity implementing a number of complex positions, programs, or requirements within a limited implementation period and with resources which may lack expertise to address a specific issue. The NRC is specifically requesting comment on the cumulative effects that may result from the potential changes in 10 CFR part 71. In developing comments on the potential changes relative to CER, consider the following questions:

    (1) In light of any current or projected CER challenges, what should be a reasonable effective date, compliance date, or submittal date(s) from the time a final rule is published to the actual implementation of new or revised requirements in 10 CFR part 71 including changes to programs, procedures, or facilities?

    (2) If current or projected CER challenges exist, what should be done to address this situation? For example if more time is required to implement a new or revised requirement, what period of time would be sufficient and why would such a time frame is necessary?

    (3) Do other regulatory actions (e.g., orders, generic communications, license amendment requests, and inspection findings of a generic nature) from the NRC, DOT or other agencies influence the implementation of a new or revised requirement?

    (4) Are there unintended consequences? Does a new or revised requirement create conditions that would be contrary to the requirement's intent? If so, what are the consequences and how should they be addressed?

    (5) Please provide information on the costs and benefits for a new or revised requirement. The information should be expressed as a realistic range of estimated costs and benefits. This information would be used for the NRC's regulatory analysis of the proposed changes.

    VII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.

    VIII. Rulemaking Process

    The NRC does not intend to provide formal comment responses for information provided from the public comment period on the issues paper. The NRC will consider comments on the issues paper in the rule development process. If the NRC develops a regulatory basis sufficient to support a proposed rule, there will be an opportunity for additional public comment when the draft regulatory basis and the proposed rule are published. If supporting guidance is developed for the proposed rule, stakeholders will have an opportunity to provide feedback on it as well. Alternatively, if the regulatory basis does not provide sufficient support for a proposed rule, the NRC will publish a Federal Register document withdrawing this rulemaking activity and addressing the public comments received on the issues paper.

    Dated at Rockville, Maryland, this 1st day of November, 2016.

    For the Nuclear Regulatory Commission.

    Mark D. Lombard, Director, Division of Spent Fuel Management.
    [FR Doc. 2016-27944 Filed 11-18-16; 8:45 am] BILLING CODE 7590-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 343 and 390 RIN 3064-AE49 Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance and Amendments to FDIC Consumer Protection in Sales of Insurance Regulation AGENCY:

    Federal Deposit Insurance Corporation.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    In this notice of proposed rulemaking, the Federal Deposit Insurance Corporation (“FDIC”) proposes to rescind and remove from the Code of Federal Regulations the subpart entitled “Consumer Protection in Sales of Insurance” (“the subpart”) that was included in the regulations transferred to the FDIC from the Office of Thrift Supervision (“OTS”) on July 21, 2011 in connection with the implementation of applicable provisions of title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The requirements for State savings associations in this subpart are substantively similar to the requirements in the FDIC's part which is also entitled “Consumer Protection in Sales of Insurance” (“the part”) and is applicable for all insured depository institutions (“IDIs”) for which the FDIC has been designated the appropriate Federal banking agency.

    The FDIC proposes to rescind in its entirety the subpart and to modify the scope of the part to include State savings associations and their subsidiaries to conform to and reflect the scope of the FDIC's current supervisory responsibilities as the appropriate Federal banking agency. The FDIC also proposes to define “FDIC-supervised insured depository institution or institution” and “State savings association.” Finally, the FDIC proposes to transfer an anticoercion and antitying provision from the subpart that is applicable to State savings associations.

    Upon removal of the subpart, the Consumer Protection in Sales of Insurance, regulations applicable for all IDIs for which the FDIC has been designated the appropriate Federal banking agency will be found in the part.

    DATES:

    Comments must be received on or before January 20, 2017.

    ADDRESSES:

    You may submit comments by any of the following methods:

    FDIC Web site: http://www.fdic.gov/regulations/laws/federal/propose.html. Follow instructions for submitting comments on the agency Web site.

    FDIC Email: [email protected] Include RIN #3064-AE49 on the subject line of the message.

    FDIC Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429.

    Hand Delivery to FDIC: Comments may be hand delivered to the guard station at the rear of the 550 17th Street building (located on F Street) on business days between 7 a.m. and 5 p.m.

    Please include your name, affiliation, address, email address, and telephone number(s) in your comment. Where appropriate, comments should include a short Executive Summary consisting of no more than five single-spaced pages. All statements received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. You should submit only information that you wish to make publicly available.

    Please note:

    All comments received will be posted generally without change to http://www.fdic.gov/regulations/laws/federal/propose.html, including any personal information provided. Paper copies of public comments may be requested from the Public Information Center by telephone at 1-877-275-3342 or 1-703-562-2200.

    FOR FURTHER INFORMATION CONTACT:

    Martha L. Ellett, Counsel, Consumer Compliance Section, Legal Division, (202) 898-6765; John Jackwood, Sr. Policy Analyst, Division of Depositor and Consumer Protection, (202) 898-3991.

    SUPPLEMENTARY INFORMATION: I. Background The Dodd-Frank Act

    The Dodd-Frank Act 1 provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to State savings associations, the Office of the Comptroller of the Currency (“OCC”), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (“FRB”), as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. The section provides that if such materials were in effect on the day before the transfer date, they continue to be in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

    1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 5301 et seq.).

    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(c), further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations that would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.2

    2 76 FR 39247 (July 6, 2011).

    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the Federal Deposit Insurance Act (“FDI Act”) and other laws as the “appropriate Federal banking agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act amended the definition of “appropriate Federal banking agency” contained in section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add State savings associations to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for State savings associations, as it does here, the FDIC is authorized to issue, modify and rescind regulations involving such associations, as well as for State nonmember banks and insured branches of foreign banks.

    As noted, on June 14, 2011, pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.3 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.

    3 76 FR 47652 (Aug. 5, 2011).

    One of the OTS rules transferred to the FDIC governed OTS oversight of consumer protections for depository institution sales of insurance. The OTS rule, formerly found at 12 CFR part 536, was transferred to the FDIC with only minor nonsubstantive changes and is now found in the FDIC's rules at part 390, subpart I, entitled “Consumer Protection in Sales of Insurance.” Before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 343, also entitled “Consumer Protection in Sales of Insurance,” a rule governing FDIC oversight of consumer protection regulations that apply to retail sales practices, solicitations, advertising, or offers of any insurance product with respect to IDIs for which the FDIC has been designated the appropriate Federal banking agency. After careful review and comparison of part 390, subpart I, and part 343, the FDIC proposes to rescind part 390, subpart I, because, as discussed below, it is substantively redundant to existing part 343 and simultaneously we propose to make technical conforming edits to our existing rule.

    FDIC's Existing 12 CFR Part 343 and Former OTS's Part 536 (Transferred, in Part, to FDIC's Part 390, Subpart I)

    Section 305 of the Gramm-Leach-Bliley Act (“GLB Act”) 4 added section 47 to the FDI Act,5 entitled “Insurance Consumer Protections.” Section 47 applies to retail sales practices, solicitations, advertising, or offers of insurance products by depository institutions 6 or persons engaged in these activities at an office of the institution or on behalf of the institution.7 Section 47 directs the FDIC, the OTS, the OCC, and the FRB (collectively the “Federal banking agencies”) to include provisions specifically relating to sales practices, disclosures and advertising, the physical separation of banking and nonbanking activities, and domestic violence discrimination.8 On December 4, 2000, pursuant to section 305 of the GLB Act,9 the Federal banking agencies published a joint final rule 10 to implement consumer protection in sales of insurance provisions of section 47 of the FDI Act.

    4 Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338 (1999).

    5 12 U.S.C. 1831x.

    6 A “depository institution” in this context means a national bank in the case of institutions supervised by the OCC, a State member bank in the case of the FRB, a State nonmember bank in the case of the FDIC, and a savings association in the case of the OTS. 65 FR 75822 fn. 1 (Dec. 4, 2000).

    7 12 U.S.C. 1831x(a)(1)(A).

    8 12 U.S.C. 1831x.

    9 12 U.S.C. 1831x(a)(3).

    10 65 FR 75822 (Dec. 4, 2000).

    Section 47 of the FDI Act instructs the Federal banking agencies to consult and coordinate with one another and prescribe and publish joint consumer protection regulations that apply to retail sales practices, solicitations, advertising, or offers of insurance products by depository institutions or persons engaged in these activities at an office of the institution or on behalf of the institution.11 Section 47 also requires the Federal banking agencies to consult with the State insurance regulators, as appropriate.12 The Federal banking agencies consulted and coordinated with respect to this rulemaking and on an interagency basis jointly issued rules that are substantively identical with regard to consumer protection in sales of insurance requirements,13 including the same definition of a “covered person” or “you.” 14

    11 12 U.S.C. 1831x(a)(1).

    12 12 U.S.C. 1831x(a)(3).

    13 65 FR 75822 (Dec. 4, 2000).

    14 65 FR 75822, 75824 (Dec. 4, 2000). A “covered person” or “you” means “any depository institution or any other person selling, soliciting, advertising, or offering insurance products or annuities to a consumer at an office of the institution or on behalf of the institution. A `covered person' includes any person, including a subsidiary or other affiliate, if that person or one of its employees sells, solicits, advertises, or offers insurance products or annuities at an office of an institution or on behalf of an institution. 65 FR 75824 (Dec. 4, 2000). See also 12 CFR 343.20(j)(1) and 12 CFR 390.181.

    The scope of part 343 in the FDIC's regulations and of part 390, subpart I in the OTS's regulations is also substantively similar. The FDIC regulations apply to any bank 15 or any other person that is engaged in such activities at an office of the bank or on behalf of the bank.16 Similarly, the OTS regulations apply to any State savings association or any other person that is engaged in such activities at an office of a State savings association or on behalf of a State savings association.17 In the FDIC's scope provisions, any other person includes subsidiaries 18 because only subsidiaries that are selling insurance products or annuities at an office of the institution or acting on behalf of the depository institution as defined in the rules would be subject to the requirements of the rules.19 The OTS regulation specifically states that its regulation applies to subsidiaries of a State savings association only to the extent that it sells, solicits, advertises, or offers insurance products or annuities at an office of a State savings association or on behalf of a State savings association.20 This OTS provision will not be carried over to the FDIC's part 343 because it is redundant and unnecessary, since the FDIC scope provision already includes subsidiaries within its definition.21 The rule specifically states that a covered person (or you) includes any person including a subsidiary or other affiliate if that person or one of its employees sells, solicits, advertises, or offers insurance products or annuities at an office of an institution or on behalf of an institution.22

    15 Bank means an FDIC-insured, state-chartered commercial or savings bank that is not a member of the Federal Reserve System and for which the FDIC is the appropriate federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)). 12 CFR 343.20(b).

    16 12 CFR 343.10.

    17 12 CFR 390.180(a)(1), (2).

    18See 65 FR 75822, 75823 (Dec. 4, 2000).

    19 65 FR 75822, 75823 (Dec. 4, 2000) (footnote omitted).

    20 12 CFR 390.180(b).

    21 12 CFR 343.10.

    22 65 FR 75822, 75824 (Dec. 4, 2000) (italics added).

    Accordingly, the portions of the OTS regulations that applied to State savings associations, their subsidiaries and their affiliates, originally codified at 12 CFR part 536 and subsequently transferred to FDIC's part 390, subpart I, are substantively similar to the current FDIC regulations codified at 12 CFR part 343. By amending part 343 to encompass State savings associations and rescinding part 390, subpart I, the FDIC will streamline its regulations and reduce redundancy.

    Although the former OTS rule and part 390, subpart I, covers savings and loan holding companies that are affiliated with savings associations in addition to savings associations, the FDIC does not supervise savings and loan or bank holding companies for purposes of this rule. Section 312 of the Dodd-Frank Act 23 divides and transfers the functions of the former OTS to the FDIC, OCC, and FRB by amending section 1813(q) of the FDI Act. Specifically, section 312 transfers the former OTS's power to regulate State savings associations to the FDIC, while it transfers the power to regulate savings and loan holding companies to the FRB.24 As a result, whereas the former OTS part 536 applied to savings associations, their subsidiaries and their affiliates, including savings and loan holding companies,25 upon transfer of part 536 to FDIC's part 390, subpart I, only the authority over State savings associations and their subsidiaries and other affiliates was transferred to the FDIC for purposes of this rule.26 The FRB currently has jurisdiction over the regulation and supervision of consumer protections in connection with retail insurance sales practices as it applies to affiliates, including savings and loan holding companies of State savings associations.27 For this reason, the existing references to affiliates in part 390, subpart I, are not proposed to be transferred to part 343 of the FDIC rules.

    23 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 5412).

    24 12 U.S.C. 5412.

    25 12 CFR 536.1.

    26 12 CFR 390.180.

    27 12 CFR part 208, subpart H.

    After careful comparison of the FDIC's part 343 with the transferred OTS rule in part 390, subpart I, the FDIC has concluded that the transferred OTS rules governing consumer protection in sales of insurance are substantively redundant. Based on the foregoing, the FDIC proposes to rescind and remove from the Code of Federal Regulations the transferred OTS rules located at part 390, subpart I, and to make minor conforming changes to part 343 to incorporate State savings associations.

    II. The Proposal

    Regarding the functions of the former OTS that were transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act, 12 U.S.C. 5414(b)(3), in pertinent part, provides that the former OTS's regulations will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law. After reviewing the rules currently found in part 390, subpart I, the FDIC proposes (1) to rescind part 390, subpart I, in its entirety; (2) to modify to the scope of part 343 to include State savings associations and their subsidiaries to conform to and reflect the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations; (3) delete the definition of bank and replace it with a definition of FDIC-supervised insured depository institution or institution, which means any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)); (4) add a new subsection (i), which would define “State savings association” as having the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3)); (5) transfer an anticoercion and antitying provision from part 390, subpart I, that is applicable to State savings associations to part 343; and (6) make conforming technical edits throughout, including replacing the term “institution” in place of “bank” throughout the rule where necessary.

    If the proposal is finalized, oversight of consumer protection in sales of insurance in part 343 would apply to all FDIC-supervised institutions, including State savings associations, and part 390, subpart I, would be removed because it is largely redundant of the rules found in part 343. Rescinding part 390, subpart I, will serve to streamline the FDIC's rules and eliminate unnecessary regulations.

    III. Request for Comments

    The FDIC invites comments on all aspects of this proposed rulemaking, and specifically requests comments on the following:

    (1) Are there any specific provisions of part 343 that are outdated or obsolete, or are behind industry standards? If so, please describe and recommend alternate methodology.

    (2) What impacts, positive or negative, can you foresee in the FDIC's proposal to rescind part 390, subpart I?

    Written comments must be received by the FDIC no later than January 20, 2017.

    IV. Regulatory Analysis and Procedure A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number.

    The Proposed Rule would rescind and remove from FDIC regulations part 390, subpart I from the FDIC regulations. This rule was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by title III of the Dodd-Frank Act. Part 390, subpart I, is largely redundant of the FDIC's existing part 343 regarding consumer protections for depository institution sales of insurance. The information collections contained in part 343 are cleared by OMB under the FDIC's Insurance Sales Consumer Protections information collection (OMB Control No. 3064-0140). The FDIC reviewed its burden estimates for the collection at the time it assumed responsibility for supervision of State savings associations transferred from the OTS and determined that no changes to the burden estimates were necessary. The Proposed Rule would not revise the Insurance Sales Consumer Protections information collection under OMB Control No. 3064-0140 or create any new information collection pursuant to the PRA. Consequently, no submission will be made to the Office of Management and Budget for review. The FDIC requests comment on its conclusion that this NPR does not revise the Insurance Sales Consumer Protections information collection 3064-0140.

    Finally, the Proposed Rule would (1) amend part 343 to include State savings associations and their subsidiaries within its scope; and (2) define “FDIC-supervised insured depository institution or institution” and “State savings association;” (3) transfer an anticoercion and antitying provision from part 390, subpart I, that is applicable to State savings associations to part 343; and (4) make conforming technical edits throughout These measures clarify that State savings associations, as well as State nonmember banks are subject to part 343. With respect to part 343, the Proposed Rule does not revise any existing, or create any new information collection pursuant to the PRA. Consequently, no submission will be made to the Office of Management and Budget for review. The FDIC requests comment on its conclusion that this aspect of the NPR does not create a new or revise and existing information collection.

    B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (“RFA”), requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the proposed rule on small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million).28 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and publishes its certification and a short explanatory statement in the Federal Register together with the proposed rule. For the reasons provided below, the FDIC certifies that the Proposed Rule would not have a significant economic impact on a substantial number of small entities.

    28 5 U.S.C. 601 et seq.

    As discussed in this notice of proposed rulemaking, part 390, subpart I, was transferred from OTS part 536, which governed consumer protections for depository institution sales of insurance. OTS part 536 had been in effect since 2001 and all State savings associations were required to comply with it. Because it is substantially same as existing part 343 of the FDIC's rules and therefore redundant, the FDIC proposes rescinding and removing the transferred regulation now located in part 390, subpart I. As a result, all FDIC-supervised institutions—including State savings associations and their subsidiaries—would be required to comply with part 343 if they are selling, soliciting, advertising, or offering any insurance product. Because all State savings associations and their subsidiaries have been required to comply with substantially similar consumer protection rules if they engaged in sales of insurance since 2001,29 the Proposed Rule would not place additional requirements or burdens on any State savings association irrespective of its size. Therefore, the Proposed Rule would not have a significant impact on a substantial number of small entities.

    29 65 FR 75822 (Dec. 4, 2000). The final rule became effective April 1, 2001.

    C. Plain Language

    Section 722 of the GLB Act, codified at 12 U.S.C. 4809, requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. The FDIC invites comments on whether the Proposed Rule is clearly stated and effectively organized, and how the FDIC might make it easier to understand. For example:

    • Has the FDIC organized the material to suit your needs? If not, how could it present the rule more clearly?

    • Have we clearly stated the requirements of the rule? If not, how could the rule be more clearly stated?

    • Does the rule contain technical jargon that is not clear? If so, which language requires clarification?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?

    • What else could we do to make the regulation easier to understand?

    D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (“EGRPRA”), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.30 The FDIC completed the last comprehensive review of its regulations under EGRPRA in 2006 and is commencing the next decennial review. The action taken on this rule will be included as part of the EGRPRA review that is currently in progress. As part of that review, the FDIC invites comments concerning whether the Proposed Rule would impose any outdated or unnecessary regulatory requirements on insured depository institutions. If you provide such comments, please be specific and provide alternatives whenever appropriate.

    30 Public Law 104-208, 110 Stat. 3009 (1996).

    List of Subjects 12 CFR Part 343

    Banks, banking; Consumer protection in sales of insurance; Savings associations.

    12 CFR Part 390

    Consumer protection in sales of insurance.

    Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation proposes to revise part 343 of title 12 of the Code of Federal Regulations and amend part 390 of title 12 of the Code of Federal Regulations as set forth below:

    1. Revise part 343 to read as follows: PART 343—CONSUMER PROTECTION IN SALES OF INSURANCE 343.10 Purpose and scope. 343.20 Definitions. 343.30 Prohibited practices. 343.40 What you must disclose. 343.50 Where insurance activities may take place. 343.60 Qualification and licensing requirements for insurance sales personnel. Appendix A to Part 343—Consumer Grievance Process Authority:

    12 U.S.C. 1819 (Seventh and Tenth); 12 U.S.C. 1831x.

    § 343.10 Purpose and scope.

    This part establishes consumer protections in connection with retail sales practices, solicitations, advertising, or offers of any insurance product or annuity to a consumer by:

    (a) Any institution; or

    (b) Any other person that is engaged in such activities at an office of the institution or on behalf of the institution.

    § 343.20 Definitions.

    As used in this part:

    (a) Affiliate means a company that controls, is controlled by, or is under common control with another company.

    (b) Company means any corporation, partnership, business trust, association or similar organization, or any other trust (unless by its terms the trust must terminate within twenty-five years or not later than twenty-one years and ten months after the death of individuals living on the effective date of the trust). It does not include any corporation the majority of the shares of which are owned by the United States or by any State, or a qualified family partnership, as defined in section 2(o)(10) of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841(o)(10)).

    (c) Consumer means an individual who purchases, applies to purchase, or is solicited to purchase from you insurance products or annuities primarily for personal, family, or household purposes.

    (d) Control of a company has the same meaning as in section 3(w)(5) of the Federal Deposit Insurance Act (12 U.S.C. 1813(w)(5)).

    (e) Domestic violence means the occurrence of one or more of the following acts by a current or former family member, household member, intimate partner, or caretaker:

    (1) Attempting to cause or causing or threatening another person physical harm, severe emotional distress, psychological trauma, rape, or sexual assault;

    (2) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances that place the person in reasonable fear of bodily injury or physical harm;

    (3) Subjecting another person to false imprisonment; or

    (4) Attempting to cause or causing damage to property so as to intimidate or attempt to control the behavior of another person.

    (f) Electronic media includes any means for transmitting messages electronically between you and a consumer in a format that allows visual text to be displayed on equipment, for example, a personal computer monitor.

    (g) FDIC-supervised insured depository institution or institution means any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)).

    (h) Office means the premises of an institution where retail deposits are accepted from the public.

    (i) State savings association has the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

    (j) Subsidiary has the same meaning as in section 3(w)(4) of the Federal Deposit Insurance Act (12 U.S.C. 1813(w)(4)).

    (k)(1) You means:

    (i) An institution; or

    (ii) Any other person only when the person sells, solicits, advertises, or offers an insurance product or annuity to a consumer at an office of the institution or on behalf of an institution.

    (2) For purposes of this definition, activities on behalf of an institution include activities where a person, whether at an office of the institution or at another location sells, solicits, advertises, or offers an insurance product or annuity and at least one of the following applies:

    (i) The person represents to a consumer that the sale, solicitation, advertisement, or offer of any insurance product or annuity is by or on behalf of the institution;

    (ii) The institution refers a consumer to a seller of insurance products or annuities and the institution has a contractual arrangement to receive commissions or fees derived from a sale of an insurance product or annuity resulting from that referral; or

    (iii) Documents evidencing the sale, solicitation, advertising, or offer of an insurance product or annuity identify or refer to the institution.

    § 343.30 Prohibited practices.

    (a) Anticoercion and antitying rules. You may not engage in any practice that would lead a consumer to believe that an extension of credit, in violation of section 106(b) of the Bank Holding Company Act Amendments of 1970 (12 U.S.C. 1972) in the case of a State nonmember insured bank and a foreign bank having an insured branch, or in violation of section 5(q) of the Home Owners' Loan Act (12 U.S.C. 1464(q)) in the case of a State savings association, is conditional upon either:

    (1) The purchase of an insurance product or annuity from the institution or any of its affiliates; or

    (2) An agreement by the consumer not to obtain, or a prohibition on the consumer from obtaining, an insurance product or annuity from an unaffiliated entity.

    (b) Prohibition on misrepresentations generally. You may not engage in any practice or use any advertisement at any office of, or on behalf of, the institution or a subsidiary of the institution that could mislead any person or otherwise cause a reasonable person to reach an erroneous belief with respect to:

    (1) The fact that an insurance product or annuity sold or offered for sale by you or any subsidiary of the institution is not backed by the Federal government or the institution, or the fact that the insurance product or annuity is not insured by the Federal Deposit Insurance Corporation;

    (2) In the case of an insurance product or annuity that involves investment risk, the fact that there is an investment risk, including the potential that principal may be lost and that the product may decline in value; or

    (3) In the case of an institution or subsidiary of the institution at which insurance products or annuities are sold or offered for sale, the fact that:

    (i) The approval of an extension of credit to a consumer by the institution or subsidiary may not be conditioned on the purchase of an insurance product or annuity by the consumer from the institution or a subsidiary of the institution; and

    (ii) The consumer is free to purchase the insurance product or annuity from another source.

    (c) Prohibition on domestic violence discrimination. You may not sell or offer for sale, as principal, agent, or broker, any life or health insurance product if the status of the applicant or insured as a victim of domestic violence or as a provider of services to victims of domestic violence is considered as a criterion in any decision with regard to insurance underwriting, pricing, renewal, or scope of coverage of such product, or with regard to the payment of insurance claims on such product, except as required or expressly permitted under State law.

    § 343.40 What you must disclose.

    (a) Insurance disclosures. In connection with the initial purchase of an insurance product or annuity by a consumer from you, you must disclose to the consumer, except to the extent the disclosure would not be accurate, that:

    (1) The insurance product or annuity is not a deposit or other obligation of, or guaranteed by, the institution or an affiliate of the institution;

    (2) The insurance product or annuity is not insured by the Federal Deposit Insurance Corporation (FDIC) or any other agency of the United States, the institution, or (if applicable) an affiliate of the institution; and

    (3) In the case of an insurance product or annuity that involves an investment risk, there is investment risk associated with the product, including the possible loss of value.

    (b) Credit disclosure. In the case of an application for credit in connection with which an insurance product or annuity is solicited, offered, or sold, you must disclose that the institution may not condition an extension of credit on either:

    (1) The consumer's purchase of an insurance product or annuity from the institution or any of its affiliates; or

    (2) The consumer's agreement not to obtain, or a prohibition on the consumer from obtaining, an insurance product or annuity from an unaffiliated entity.

    (c) Timing and method of disclosures—(1) In general. The disclosures required by paragraph (a) of this section must be provided orally and in writing before the completion of the initial sale of an insurance product or annuity to a consumer. The disclosure required by paragraph (b) of this section must be made orally and in writing at the time the consumer applies for an extension of credit in connection with which an insurance product or annuity is solicited, offered, or sold.

    (2) Exception for transactions by mail. If a sale of an insurance product or annuity is conducted by mail, you are not required to make the oral disclosures required by paragraph (a) of this section. If you take an application for credit by mail, you are not required to make the oral disclosure required by paragraph (b) of this section.

    (3) Exception for transactions by telephone. If a sale of an insurance product or annuity is conducted by telephone, you may provide the written disclosures required by paragraph (a) of this section by mail within 3 business days beginning on the first business day after the sale, excluding Sundays and the legal public holidays specified in 5 U.S.C. 6103(a). If you take an application for credit by telephone, you may provide the written disclosure required by paragraph (b) of this section by mail, provided you mail it to the consumer within three days beginning the first business day after the application is taken, excluding Sundays and the legal public holidays specified in 5 U.S.C. 6103(a).

    (4) Electronic form of disclosures. (i) Subject to the requirements of section 101(c) of the Electronic Signatures in Global and National Commerce Act (12 U.S.C. 7001(c)), you may provide the written disclosures required by paragraph (a) and (b) of this section through electronic media instead of on paper, if the consumer affirmatively consents to receiving the disclosures electronically and if the disclosures are provided in a format that the consumer may retain or obtain later, for example, by printing or storing electronically (such as by downloading).

    (ii) Any disclosure required by paragraphs (a) or (b) of this section that is provided by electronic media is not required to be provided orally.

    (5) Disclosures must be readily understandable. The disclosures provided shall be conspicuous, simple, direct, readily understandable, and designed to call attention to the nature and significance of the information provided. For instance, you may use the following disclosures in visual media, such as television broadcasting, ATM screens, billboards, signs, posters and written advertisements and promotional materials, as appropriate and consistent with paragraphs (a) and (b) of this section:

    (i) NOT A DEPOSIT (ii) NOT FDIC-INSURED (iii) NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY (iv) NOT GUARANTEED BY THE INSTITUTION (v) MAY GO DOWN IN VALUE

    (6) Disclosures must be meaningful. (i) You must provide the disclosures required by paragraphs (a) and (b) of this section in a meaningful form. Examples of the types of methods that could call attention to the nature and significance of the information provided include:

    (A) A plain-language heading to call attention to the disclosures;

    (B) A typeface and type size that are easy to read;

    (C) Wide margins and ample line spacing;

    (D) Boldface or italics for key words; and

    (E) Distinctive type size, style, and graphic devices, such as shading or sidebars, when the disclosures are combined with other information.

    (ii) You have not provided the disclosures in a meaningful form if you merely state to the consumer that the required disclosures are available in printed material, but do not provide the printed material when required and do not orally disclose the information to the consumer when required.

    (iii) With respect to those disclosures made through electronic media for which paper or oral disclosures are not required, the disclosures are not meaningfully provided if the consumer may bypass the visual text of the disclosures before purchasing an insurance product or annuity.

    (7) Consumer acknowledgment. You must obtain from the consumer, at the time a consumer receives the disclosures required under paragraphs (a) or (b) of this section, or at the time of the initial purchase by the consumer of an insurance product or annuity, a written acknowledgment by the consumer that the consumer received the disclosures. You may permit a consumer to acknowledge receipt of the disclosures electronically or in paper form. If the disclosures required under paragraphs (a) or (b) of this section are provided in connection with a transaction that is conducted by telephone, you must:

    (i) Obtain an oral acknowledgment of receipt of the disclosures and maintain sufficient documentation to show that the acknowledgment was given; and

    (ii) Make reasonable efforts to obtain a written acknowledgment from the consumer.

    (d) Advertisements and other promotional material for insurance products or annuities. The disclosures described in paragraph (a) of this section are required in advertisements and promotional material for insurance products or annuities unless the advertisements and promotional materials are of a general nature describing or listing the services or products offered by the institution.

    § 343.50 Where insurance activities may take place.

    (a) General rule. An institution must, to the extent practicable, keep the area where the institution conducts transactions involving insurance products or annuities physically segregated from areas where retail deposits are routinely accepted from the general public, identify the areas where insurance product or annuity sales activities occur, and clearly delineate and distinguish those areas from the areas where the institution's retail deposit-taking activities occur.

    (b) Referrals. Any person who accepts deposits from the public in an area where such transactions are routinely conducted in the institution may refer a consumer who seeks to purchase an insurance product or annuity to a qualified person who sells that product only if the person making the referral receives no more than a one-time, nominal fee of a fixed dollar amount for each referral that does not depend on whether the referral results in a transaction.

    § 343.60 Qualification and licensing requirements for insurance sales personnel.

    An institution may not permit any person to sell or offer for sale any insurance product or annuity in any part of its office or on its behalf, unless the person is at all times appropriately qualified and licensed under applicable State insurance licensing standards with regard to the specific products being sold or recommended.

    Appendix A to Part 343—Consumer Grievance Process

    Any consumer who believes that any institution or any other person selling, soliciting, advertising, or offering insurance products or annuities to the consumer at an office of the institution or on behalf of the institution has violated the requirements of this part should contact the Division of Depositor and Consumer Protection, Consumer Response Center, Federal Deposit Insurance Corporation, at the following address: 1100 Walnut Street, Box #11, Kansas City, MO 64106, or telephone 1-877-275-3342, or FDIC Electronic Customer Assistance Form at http://www5.fdic.gov/starsmail/index.asp.

    PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 2. The authority citation for part 390 continues to read as follows: Authority:

    12 U.S.C. 1831y.

    Subpart I—[Removed and Reserved] 3. Remove and reserve subpart I, consisting of §§ 390.180 through 390.185. Dated at Washington, DC, this 15th day of November, 2016.

    By order of the Board of Directors.

    Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary.
    [FR Doc. 2016-27898 Filed 11-18-16; 8:45 am] BILLING CODE 6714-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9385; Directorate Identifier 2016-NM-111-AD] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Gulfstream Aerospace Corporation Model G-1159B airplanes. This proposed AD was prompted by a review of airplane maintenance records, which revealed that incorrect rudder assemblies were installed on certain airplanes. This proposed AD would require certain inspections, and replacement or modification of the rudder assembly if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 5, 2017.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9385; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Krista Greer, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5544; fax: 404-474-5606; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9385; Directorate Identifier 2016-NM-111-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We reviewed Gulfstream airplane maintenance records which revealed that incorrect rudder assemblies were installed on certain Gulfstream Model G-1159B airplanes (also referred to by marketing designation GIIB). Investigation revealed that the Gulfstream GII/GIIB Illustrated Parts Catalog (IPC) did not clearly specify that the rudder assemblies for Model G-1159 airplanes (also referred to by marketing designation GII) have part number (P/N) 1159CS20004-3, and the rudder assemblies for Model G-1159B airplanes have P/N 1159CS25000-3/-9. Installation of rudders for Model G-1159 airplanes on Model G-1159B airplanes does not comply with the design fail-safe requirements for Model G-1159B airplanes. Although the rudder assembly designs are similar, the upper hinge configuration for Model G-1159B airplanes includes a dual load path to prevent control surface flutter in the event of middle or upper hinge failure. Installation of an incorrect rudder assembly could result in flutter and subsequent loss of the rudder, which could result in loss of control of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Gulfstream GII/IIB Customer Bulletin 468, dated February 17, 2016 (for Model G-1159 and Model G-1159B airplanes). The service information describes procedures for inspecting the rudder assembly to determine the part number, verifying that the part number of the rudder assembly matches what is recorded in the airplane maintenance records, inspecting the rudder hinges, and modifying the rudder assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously.

    Costs of Compliance

    We estimate that this proposed AD affects 24 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Inspection 1 work-hour × $85 per hour = $85 $0 $85 $2,040

    We estimate the following costs to do any necessary replacements or modifications that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements or modifications:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement/modification 3 work-hours × $85 per hour = $255 $51,445 $51,700
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Gulfstream Aerospace Corporation: Docket No. FAA-2016-9385; Directorate Identifier 2016-NM-111-AD. (a) Comments Due Date

    We must receive comments by January 5, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Gulfstream Model G-1159B airplanes, certificated in any category.

    Note 1 to paragraph (c) of this AD:

    Model G-1159B airplanes are also referred to by marketing designation GIIB.

    (d) Subject

    Air Transport Association (ATA) of America Code 27; Flight Controls.

    (e) Unsafe Condition

    This AD was prompted by a review of airplane maintenance records, which revealed that incorrect rudder assemblies were installed on certain airplanes. We are issuing this AD to detect and correct the installation of incorrect rudder assemblies, which could result in flutter and subsequent loss of the rudder, and consequent loss of control of the airplane.

    (f) Compliance

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

    (g) Inspection To Determine Rudder Assembly Part Number and Verification of Maintenance Records

    Within 12 months after the effective date of this AD, do an inspection to determine the part number of the rudder assembly, in accordance with the Accomplishment Instructions of Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016, except as provided by paragraph (i)(1) of this AD. If the rudder assembly does not have part number (P/N) 1159CS20004-3, within 12 months after the effective date of this AD, verify that the rudder assembly part number recorded in the aircraft maintenance records matches the part number of the rudder assembly installed on the airplane and if the rudder assembly part number does not match, correct the aircraft maintenance records accordingly.

    (h) Additional Inspection and Corrective Action

    If, during the inspection required by paragraph (g) of this AD, a rudder assembly having P/N 1159CS20004-3 is found, before further flight, do a general visual inspection of the middle and upper rudder hinges to determine if a one-piece or two-piece hinge is installed, in accordance with the Accomplishment Instructions of Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016, and do the applicable action specified in paragraph (h)(1) or (h)(2) of this AD, except as required by paragraph (i)(2) of this AD.

    (1) For airplanes with a one-piece hinge installed: Do the actions specified in paragraph (h)(1)(i) or (h)(1)(ii) of this AD.

    (i) Modify the rudder assembly, in accordance with the Accomplishment Instructions of Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016.

    Note 1 to paragraph (h)(1)(i) of this AD:

    Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016, refers to Gulfstream GII Aircraft Service Change Number 300, Amendment 1, dated May 21, 1984, as an additional source of guidance for accomplishment of the rudder modification.

    (ii) Replace the rudder assembly with a rudder assembly that has been modified as specified in Gulfstream GII Aircraft Service Change Number 300. Do the replacement using a method approved in accordance with the procedures specified in paragraph (k)(1) of this AD.

    (2) For airplanes with a two-piece hinge installed: Re-identify the rudder assembly as having incorporated the actions in Gulfstream GII Aircraft Service Change Number 300, in accordance with the Accomplishment Instructions of Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016.

    (i) Exceptions to Service Bulletin Specifications

    (1) Where Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016, specifies to record the rudder part number and serial number on the service reply card, that action is not required by this AD.

    (2) Where Gulfstream GII/IIB Customer Bulletin Number 468, dated February 17, 2016, specifies to contact Gulfstream for instructions on modifying the rudder assembly, this AD requires modifying the rudder assembly before further flight using a method approved in accordance with the procedures specified in paragraph (k)(1) of this AD.

    (j) Special Flight Permit

    Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are not allowed.

    (k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (l)(1) of this AD.

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

    (3) Except as required by paragraph (i) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(3)(i) and (k)(3)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (l) Related Information

    (1) For more information about this AD, contact Krista Greer, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5544; fax: 404-474-5606; email: [email protected]

    (2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 2, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-27309 Filed 11-18-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3257; Directorate Identifier 2015-SW-072-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters Deutschland GmbH AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH (Airbus Helicopters) MBB-BK 117 D-2 helicopters. This proposed AD would require repetitively inspecting the bushings of the inner and outer forward trusses of both engines. This proposed AD is prompted by reports of delaminated and worn engine mount bushings. The proposed actions are intended to detect delaminated engine mount bushings, which can lead to excessive vibration, cracking, failure of the engine mount front support pins, and loss of helicopter control.

    DATES:

    We must receive comments on this proposed AD by January 20, 2017.

    ADDRESSES:

    You may send comments by any of the following methods:

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

    Fax: 202-493-2251.

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

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3257; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    Matt Fuller, Senior Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2015-0198, dated September 30, 2015, to correct an unsafe condition for Airbus Helicopters Model MBB-BK 117 D-2 helicopters. EASA advises that during a pre-flight check of an MBB-BK 117 D-2 helicopter, an engine mount bushing was found delaminated. More cases of delaminated engine mount bushings were reported following additional investigations. According to EASA, this condition could lead to cracks and eventually failure of the engine mount front support pins, possibly resulting in loss of helicopter control.

    The EASA AD consequently requires repetitive inspections of the engine mount bushings and depending of the findings, repairing or replacing the bushings.

    FAA's Determination

    These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

    Related Service Information

    We reviewed Airbus Helicopters Alert Service Bulletin (ASB) MBB-BK117 D-2-71A-002, Revision 0, dated September 28, 2015, for Model MBB-BK 117 D-2 helicopters. The ASB introduces repetitive visual inspections of the engine mount bushings for defects, deformation, separation of the rubber, and missing rubber after reports of delaminated engine mount bushings and bushings with damage to the metal inner sleeve. If there is any deformation or separation of the rubber, the ASB specifies performing a detailed inspection of the bushing in accordance with the aircraft maintenance manual.

    Proposed AD Requirements

    This proposed AD would require within 50 hours time-in-service (TIS) and at intervals not to exceed 50 hours TIS thereafter, visually inspecting the bushings of the inner and outer forward trusses of both engines, and depending on the outcome of the inspections, replacing or repairing the bushings before further flight.

    Differences Between This Proposed AD and the EASA AD

    The EASA AD allows for a 10 hour time-in-service, non-cumulative tolerance for its required compliance times. This proposed AD would not.

    Costs of Compliance

    We estimate that this proposed AD would affect 5 helicopters of U.S. Registry and that labor costs average $85 per work hour. Based on these estimates, we expect the following costs:

    • Inspecting the bushings would require 1 work hour. No parts would be needed, for a total cost of $85 per helicopter and $425 for the U.S. fleet.

    • Replacing a bushing would require 1 work hour and $373 for parts, for a total cost of $458 per bushing.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Helicopters Deutschland GmbH: Docket No. FAA-2016-3257; Directorate Identifier 2015-SW-072-AD. (a) Applicability

    This AD applies to Airbus Helicopters Deutschland GmbH Model MBB-BK 117 D-2 helicopters with a bushing part number 105-60386 installed, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as a delaminated engine mount bushing. This condition could result in excessive vibration, which could lead to cracking and failure of the engine mount front support pins, and loss of helicopter control.

    (c) Comments Due Date

    We must receive comments by January 20, 2017.

    (d) Compliance

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

    (e) Required Actions

    Within 50 hours time-in-service (TIS) and thereafter at intervals not to exceed 50 hours TIS:

    (1) Visually inspect each engine mount bushing (bushing) for separation of the rubber from the metal or missing rubber.

    (2) If any rubber has separated from the metal or if there is missing rubber, inspect the bushing for deformation, corrosion, and mechanical damage.

    (i) Replace the bushing with an airworthy bushing if there is any deformation, separation of the rubber from the metal, corrosion, or mechanical damage, or repair the bushing if the deformation, separation of the rubber, corrosion, or mechanical damage is within the maximum repair damage limitations.

    (ii) If the inner and outer parts of the bushing are separated with missing rubber, replace the bushing with an airworthy bushing.

    (f) Alternative Methods of Compliance (AMOCs)

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

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

    (g) Additional Information

    (1) Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 D-2-71A-002, Revision 0, dated September 28, 2015, which is not incorporated by reference, contains additional information about the subject of this proposed rule. For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    (2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015-0198, dated September 30, 2015. You may view the EASA AD on the Internet at http://www.regulations.gov in the AD Docket.

    (h) Subject

    Joint Aircraft Service Component (JASC) Code: 7200, Engine (Turbine, Turboprop).

    Issued in Fort Worth, Texas, on November 10, 2016. Lance T. Gant, Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-27765 Filed 11-18-16; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0142; FRL-9954-66-Region 6] Approval and Promulgation of Air Quality Implementation Plans; Oklahoma; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter and Interstate Transport for the 2010 Sulfur Dioxide National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve and disapprove elements of State Implementation Plan (SIP) submissions from the State of Oklahoma for the 2012 Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard (NAAQS or standard) and the 2010 Sulfur Dioxide (SO2) NAAQS. The 2012 PM2.5 submission addresses how the existing SIP provides for implementation, maintenance, and enforcement of this NAAQS (infrastructure SIP or i-SIP). The i-SIP ensures that the Oklahoma SIP is adequate to meet the State's responsibilities under the Federal Clean Air Act (CAA). The majority of the 2010 SO2 submission was addressed in a separate rulemaking, only the visibility component listed in 110(a)(2)(D)(i)(II) is being addressed in this action.

    We are proposing to disapprove the visibility component of 110(a)(2)(D)(i)(II), often referred to as prong 4. We are also proposing to disapprove the portion of the January 28, 2015 SIP submission from Oklahoma for the 2010 Sulfur Dioxide (SO2) NAAQS only as it addresses Section 110(a)(2)(D)(i)(II) for visibility protection.

    DATES:

    Written comments must be received on or before December 21, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2015-0142, at http://www.regulations.gov or via email to [email protected] Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Tracie Donaldson, (214) 665-6633, [email protected] For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: The docket index and publicly available docket materials for this action are available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Tracie Donaldson, 214-665-6633, [email protected] To inspect the hard copy materials, please schedule an appointment with her or Bill Deese at 214-665-7253.

    SUPPLEMENTARY INFORMATION:

    In this document “we,” “us,” and “our” means the EPA.

    I. Background

    On October 17, 2006, following a periodic review of the NAAQS for PM2.5, EPA revised the PM2.5 NAAQS. The 24-hour standard was revised to 35 micrograms per cubic meter (µg/m3), and the annual standard was revised to 15 µg/m3 (71 FR 61144). On December 14, 2012, we promulgated a revised primary annual PM2.5 NAAQS (78 FR 3086). The primary annual standard was revised to 12.0 µg/m3, and we retained the 24-hour PM2.5 standard of 35 µg/m3 (78 FR 3086). For more information on this standard, please visit https://www.epa.gov/criteria-air-pollutants. Oklahoma submitted an i-SIP revision on June 16, 2016 to address this revised NAAQS.

    On June 22, 2010, we revised the primary NAAQS for SO2 to establish a new 1-hour standard at a level of 75 ppb, based on the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations (75 FR 35520).

    Pursuant to section 110(a)(1) of the CAA, states are required to submit i-SIPs that provide for the implementation, maintenance and enforcement of a new or revised NAAQS within 3 years following the promulgation of such new or revised NAAQS. Section 110(a)(2) lists specific requirements that i-SIPs must include to adequately address such new or revised NAAQS, as applicable. In an effort to assist states in complying with this requirement, EPA issued guidance addressing the i-SIP.

    Our technical evaluation of the Oklahoma 2012 PM2.5 submittal is provided in the Technical Support Document (TSD), which is in the docket for this rulemaking.1 Section 110(a)(2)(D)(i)(I), which addresses the contribution to nonattainment and interference with maintenance of the 2012 PM2.5 NAAQS in other states; was not included in this submittal and will be addressed by Oklahoma in a separate submittal.

    1 Additional information on: EPA's approach for reviewing i-SIPs; the details of the SIP submittal and EPA's evaluation; the effect of recent court decisions on i-SIPs; the statute and regulatory citations in the Oklahoma SIP specific to this review; the specific applicable CAA and EPA regulatory citations; Federal Register citations for Oklahoma SIP approvals; Oklahoma minor New Source Review program and EPA approval activities; and Oklahoma Prevention of Significant Deterioration (PSD) program can be found in the TSD.

    II. EPA's Evaluation of the Oklahoma PM2.5 i-SIP and Interstate Transport Submittals

    The State's submittal on June 16, 2016 demonstrates how the existing Oklahoma SIP meets the infrastructure requirements for the 2012 PM2.5 NAAQS. A summary of our evaluation of the Oklahoma SIP for each applicable element of CAA section 110(a)(2)(A)-(M) follows.

    (A) Emission limits and other control measures: CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the Act, and other related matters as needed to implement, maintain and enforce each of the NAAQS.2 The Oklahoma Clean Air Act (OCAA) provides the Oklahoma Department of Environmental Quality (ODEQ) with broad legal authority, to establish and implement air quality programs and enforce regulations it has promulgated. The ODEQ has authority to: adopt emission standards and compliance schedules applicable to regulated entities; adopt other measures necessary for attainment and maintenance of the NAAQS; enforce applicable laws, regulations, standards and compliance schedules; and seek injunctive relief.3 The approved SIP for Oklahoma is documented at 40 CFR part 52.1920, Subpart LL. Most of the State's air quality rules and standards are codified at Title 252, Chapter 100 of the Oklahoma Administrative Code (denoted OAC 252:100). A detailed list of the applicable rules at OAC 252:100 and elsewhere in the OAC, along with the citations for approval into the SIP, is provided in Table 1 of the TSD.

    2 The specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the timing requirements of section 172, not the timing requirement of section 110(a)(1). Thus, section 110(a)(2)(A) does not require that states submit regulations or emissions limits specifically for attaining the NAAQS. Those SIP provisions are due as part of each state's attainment plan, and will be addressed separately from the requirements of section 110(a)(2)(A). In the context of an i-SIP, we are not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the Oklahoma SIP has basic structural provisions for the implementation of the NAAQS.

    3 Please see the TSD for our complete analysis and citations to the specific provisions.

    (B) Ambient air quality monitoring/data system: CAA section 110(a)(2)(B) requires SIPs to provide for establishment and implementation of ambient air quality monitors, collection and analysis of monitoring data, and providing such data to EPA upon request. The OCAA provides the authority allowing the ODEQ to collect air monitoring data, quality-assure the results, and report the data.4 The ODEQ maintains and operates a monitoring network to measure ambient levels of the pollutants in accordance with EPA regulations which specify siting and monitoring requirements. All monitoring data is measured using EPA approved methods and subject to EPA quality assurance requirements. The ODEQ submits all required data to EPA in accordance with EPA regulations. The monitoring network was approved into the SIP and undergoes annual review by EPA.5 In addition, 40 CFR 58.10(d) requires that state assess their monitoring network every five years. The ODEQ submitted their 5-year monitoring network assessments to us on April 11, 2016. Our comments on the 5-year assessment, dated July 22, 2016, are in the docket for this rulemaking.6 The ODEQ Web site identifies Oklahoma's ambient monitor locations, and provides past and current concentrations of criteria pollutants measured by the State's monitors.7

    4 Please see the TSD for our complete analysis and citations to the specific provisions.

    5 A copy of the 2016 Annual Air Monitoring Network Plan and EPA's approval letter are included in the docket for this proposed rulemaking.

    6 A copy of the ODEQ's 5-year monitoring network assessment and EPA's evaluation are included in the docket for this proposed rulemaking.

    7see http://www.ODEQ.Oklahoma.gov/airquality/monops/sites/mon_sites.html and http://www17.ODEQ.Oklahoma.gov/tamis/index.cfm?fuseaction=home.welcome.

    (C) Program for enforcement: CAA section 110(a)(2)(C) requires SIPs to include the following three elements: (1) A program providing for enforcement of the measures in paragraph A above; (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to meet the major source permitting requirements of the CAA (for areas designated as attainment or unclassifiable for the NAAQS in question).8

    8See TSD, beginning on page 6.

    (1) Enforcement of SIP Measures. As noted earlier in section 110(a)(2)(A), the ODEQ and its Executive Director have the authority to enforce the requirements of the OCAA and any regulations, permits, or final compliance orders. This statute also provides the ODEQ and its Executive Director with general enforcement powers. Among other things, they can investigate regulated entities; issue field citations and compliance orders; file lawsuits to compel compliance with the statutes and regulations; commence civil actions; pursue criminal prosecutions; collect criminal and civil penalties; enter into remediation agreements; and issue emergency orders to cease operations. The OCAA also provides additional enforcement authorities and funding mechanisms.9

    9 Please see the TSD for our complete analysis and citations to the specific provisions.

    (2) Minor New Source Review (NSR). The CAA requires the SIP to include measures to regulate construction and modification of stationary sources to protect the NAAQS. The Oklahoma minor NSR permitting requirements have been approved in the SIP.10

    10 EPA is not proposing to approve or disapprove the existing Oklahoma minor NSR program to the extent that it may be inconsistent with EPA's regulations governing this program. EPA has maintained that the CAA does not require that new infrastructure SIP submissions correct any defects in existing EPA-approved provisions of minor NSR programs in order for EPA to approve the infrastructure SIP for element C (e.g., 76 FR 41076-41079). EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs. Citations for the Oklahoma NSR program are provided in our TSD for this action.

    (3) Prevention of Significant Deterioration (PSD) permit program. Oklahoma's PSD program covers all NSR regulated pollutants, as well as the NAAQS subject to our review contained herein, and has been approved by EPA into the SIP.11

    11 See 79 FR 66626, November 10, 2014 and the TSD for further discussion.

    (D)(i) Interstate Pollution Transport: There are four requirements the SIP must include relating to interstate transport. The SIP must prohibit emissions within Oklahoma from contributing significantly to the nonattainment of the NAAQS in other states, and from interfering with the maintenance of the NAAQS in other states (section 110(a)(2)(D)(i)(I)). The SIP must also prohibit emissions within Oklahoma both from interfering with measures required to prevent significant deterioration in other states and from interfering with measures required to protect visibility in other states (section 110(a)(2)(D)(i)(II)).

    At this time ODEQ has not submitted the infrastructure submittal regarding the prevention of emissions which significantly contribute to nonattainment of the PM2.5 NAAQS in other states, and interference with the maintenance of the PM2.5 NAAQS in other states (110(a)(2)(D)(i)(I)). We are taking action on the portion of the submittal addressing prevention of significant deterioration in other states and on visibility protection (110(a)(2)(D)(i)(II)). Section 110(a)(2)(D)(i)(II) consists of two provisions, prohibiting emissions which will interfere with measures required to be included in the SIP for any other State to prevent significant deterioration of (1) air quality and (2) protect visibility. Oklahoma has an approved PSD program which satisfies (1) above. The program regulates all NSR pollutants, including GHG, which prevents significant deterioration in nearby states.

    We find that Oklahoma has not included measures that conform to the mutually agreed upon regional haze reasonable progress goals. A FIP cannot be relied upon to satisfy this requirement.12 We are proposing to disapprove this sub-element (often referred to as prong 4) of the i-SIP submission (110(a)(2)(D)(i)(II)) for visibility protection.

    12 We finalized a Federal Implementation Plan (FIP) that in combination with the controls required by the portion of the Oklahoma RH submittal approved in the same rulemaking, would serve to prevent sources in Oklahoma from emitting pollutants in amounts that would interfere with efforts to protect visibility in other states. 76 FR 81728 (December 28, 2011). As explained in the i-SIP guidance, “it is the EPA's interpretation of sections 110(a)(1) and 110(a)(2) that the EPA cannot give `credit' for the FIP when determining whether an agency” has met its obligations under these sections. Therefore, while the FIP provides an appropriate level of PM2.5 control, the SIP does not and thus our proposal to disapprove for the visibility prong only.

    (D)(ii)Interstate Pollution Abatement and International Air Pollution: Pursuant to section 110(a)(2)(D)(ii), states must comply with the requirements listed in sections 115 and 126 of the CAA which were designed to aid in the abatement of interstate and international pollution. Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. Oklahoma's PSD program contains the element pertaining to notification of neighboring states of the issuance of PSD permits. Section 115 relates to international pollution abatement. There are no findings by EPA that air emissions originating in Oklahoma affect other countries. Thus, the Oklahoma SIP satisfies the requirements of section 110(a)(2)(D)(ii) for the four NAAQS discussed herein.

    (E) Adequate authority, resources, implementation, and oversight: The SIP must provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) will have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) compliance with requirements relating to state boards as explained in section 128 of the CAA; and (3) necessary assurances that the state has responsibility for ensuring adequate implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

    Sections 110(a)(2)(A) and (C), discussed earlier in this rulemaking, also require that the state have adequate authority to implement and enforce the SIP without legal impediments. The State's submittals describe the Oklahoma statutes and SIP regulations governing the various functions of personnel within the ODEQ, including the administrative, technical support, planning, enforcement, and permitting functions of the program. See the TSD for further detail.

    With respect to funding, the OCAA and the SIP provide the ODEQ with authority to hire and compensate employees; accept and administer grants or other funds; require the ODEQ to establish an emissions fee schedule for sources in order to fund the reasonable costs of administering various air pollution control programs; and authorizes the ODEQ to collect additional fees necessary to cover reasonable costs associated with processing air permit applications. The EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement and enforce the SIP. See the OCAA and 27A O.S. 2-5-105.

    As required by the CAA, the Oklahoma statutes and the SIP stipulate that any board or body that approves permits or enforcement orders must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders; and the members of the board or body, or the head of an agency with similar powers, are required to adequately disclose any potential conflicts of interest. See 27A O.S. 2-3-101 (addressing staff) and 27A O.S. 2-3-201 (addressing the Executive Director).

    Oklahoma has not delegated authority to implement any of the provisions of its plan to local governmental entities—the ODEQ acts as the primary air pollution control agency.

    (F) Stationary source monitoring system: The SIP must provide for the establishment of a system to monitor emissions from stationary sources and to submit periodic emission reports. It must require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources, to monitor emissions from sources. The SIP shall also require periodic reports on the nature and amounts of emissions and emissions-related data from sources, and require that the state correlate the source reports with emission limitations or standards established under the CAA. These reports must be made available for public inspection at reasonable times.

    The OCAA and SIP require stationary sources to monitor or test emissions and to file reports containing information relating to the nature and amount of emissions. There also are SIP-approved State regulations pertaining to sampling and testing and requirements for reporting of emissions inventories. In addition, SIP-approved rules establish general requirements for maintaining records and reporting emissions.13 The ODEQ uses this information, in addition to information obtained from other sources, to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with SIP-approved regulations and additional EPA requirements. The SIP requires this information be made available to the public. Provisions concerning the handling of confidential data and proprietary business information are included in the SIP-approved regulations. These rules specifically exclude from confidential treatment any records concerning the nature and amount of emissions reported by sources. Please see the Table 4 in the TSD for the specific relevant state regulations.

    13 A list of such rules and SIP approval dates are provided in Table 4 of the TSD.

    (G) Emergency authority: The SIP must provide the ODEQ with authority to restrain any source from causing imminent and substantial endangerment to public health or welfare or the environment. The SIP must include an adequate contingency plan to implement the ODEQ's emergency authority.

    The OCAA provides the ODEQ with authority to address environmental emergencies. The ODEQ has an “Emergency Episode Plan,” which includes contingency measures and these provisions are in the SIP (56 FR 5656). The ODEQ has general emergency powers to address any possible dangerous air pollution episode if necessary to protect the environment and public health.

    (H) Future SIP revisions: States must have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS. The OCAA authorizes the ODEQ to revise the Oklahoma SIP as necessary, to account for revisions to an existing NAAQS, establishment of a new NAAQS, to attain and maintain a NAAQS, to abate air pollution, to adopt more effective methods of attaining a NAAQS, and to respond to EPA SIP calls concerning NAAQS adoption or implementation.14

    14 Please see the TSD for our complete analysis and citations to the specific provisions.

    (I) Nonattainment areas: Section 110(a)(2)(I) of the Act requires that in the case of a plan or plan revision for areas designated as nonattainment, states must meet applicable requirements of part D of the CAA, relating to SIP requirements for designated nonattainment areas. There are no areas designated as nonattainment for PM2.5 in Oklahoma. In addition, EPA believes that nonattainment area requirements should be treated separately from the infrastructure SIP requirements. The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those required for section 110 infrastructure elements. EPA will take action on any part D attainment plan SIP submissions through a separate rulemaking process governed by the requirements for nonattainment areas, as described in part D.

    (J) Consultation with government officials, public notification, PSD and visibility protection: The SIP must meet the following three CAA requirements: (1) The interagency consultation requirements found in section 121; (2) the public notification requirements found in section 127; and, (3) prevention of significant deterioration of air quality and visibility protection.

    (1) Interagency consultation: As required by the OCAA and the Oklahoma SIP, there must be a public hearing before the adoption of any regulations or emission control requirements, and all interested persons must be given a reasonable opportunity to review the action that is being proposed and to submit data or arguments, and to examine the testimony of witnesses from the hearing. In addition, the OCAA provides the ODEQ the power and duty to advise, consult and cooperate with other agencies of the State, towns, cities, counties, industries, other states, and the federal government regarding the prevention and control of new and existing air contamination sources in the State. Furthermore, the Oklahoma PSD SIP rules mandate that the ODEQ shall provide for public participation and notification regarding permitting applications to any other state or local air pollution control agencies, local government officials of the city or county where the source will be located, tribal authorities, and Federal Land Managers (FLMs) whose lands may be affected by emissions from the source or modification.15 Additionally, the State's PSD SIP rules require the ODEQ to consult with FLMs regarding permit applications for sources with the potential to impact Class I Federal Areas. The SIP also includes a commitment to consult continually with the FLMs on the review and implementation of the visibility program, and the State recognizes the expertise of the FLMs in monitoring and new source review applicability analyses for visibility and has agreed to notify the FLMs of any advance notification or early consultation with a major new or modifying source prior to the submission of a permit application.

    15 Please see the TSD for our complete analysis and citations to the specific provisions.

    (2) Public Notification: The ODEQ regularly notifies the public of instances or areas in which any NAAQS are exceeded. Included in the SIP are the rules for ODEQ to advise the public of the health hazard associated with such exceedances, enhance public awareness of measures that can prevent such exceedances, and inform the public on how it can participate in regulatory and other efforts to improve air quality. In addition, as described in the discussion of section 110(a)(2)(B) earlier in this rulemaking, the ODEQ air monitoring Web site provides quality data for each of the monitoring stations in Oklahoma; this data is provided instantaneously for certain pollutants, such as ozone. The Web site also provides information on the health effects of all six criteria pollutants.

    (3) PSD and Visibility Protection: The PSD requirements for this element are the same as those addressed under 110(a)(2)(C) earlier in this rulemaking—the State has a SIP-approved PSD program, so this requirement has been met. The Oklahoma SIP requirements relating to visibility and regional haze are not affected when EPA establishes or revises a NAAQS. Therefore, EPA believes that there are no new visibility protection requirements due to the revision of PM2.5 NAAQS in 2012, and consequently there are no newly applicable visibility protection obligations here.

    (K) Air quality and modeling/data: The SIP must provide for performing air quality modeling, as prescribed by EPA, to predict the effects on ambient air quality of any emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

    The ODEQ has the authority and duty under the OCAA to conduct air quality research and assessments, including the causes, effects, prevention, control and abatement of air pollution. Past modeling and emissions reductions measures have been submitted by the State and approved into the SIP. Additionally, the ODEQ has the ability to perform modeling for the NAAQS on a case-by-case permit basis consistent with their SIP-approved PSD rules and EPA guidance. Furthermore, the OCAA empowers the ODEQ to cooperate with the federal government and others concerning matters of common interest in the field of air quality control, thereby allowing the agency to make such submissions to the EPA.16

    16 Please see the TSD for our complete analysis and citations to the specific provisions.

    (L) Permitting Fees: The SIP must require each major stationary source to pay permitting fees to the permitting authority as a condition of any permit required under the CAA. The fees cover the cost of reviewing and acting upon any application for such a permit, and, if the permit is issued, the costs of implementing and enforcing the terms of the permit. The fee requirement applies until such a time when a fee program is established by the state pursuant to Title V of the CAA, and is submitted to and is approved by EPA. The State has met this requirement as it has a fully developed fee system in place and approved in the SIP. See also the discussion of section 110(a)(2)(E) earlier in this rulemaking action. Regulation 1.4.1(d) of the Oklahoma Air Pollution Control Regulations provides for permit fees, and was approved by EPA into the Oklahoma SIP on August 25, 1983 (48 FR 38635). The Oklahoma SIP also addresses annual operating fees at OAC 100-5 (see 75 FR 72695).

    (M) Consultation/participation by affected local entities: The SIP must provide for consultation and participation by local political subdivisions affected by the SIP.

    See the discussion of section 110(a)(2)(J)(1) and (2) earlier in this proposed rulemaking for a description of the SIP's public participation process, the authority to advise and consult, and the PSD SIP public participation requirements. Additionally, the OCAA requires cooperative action between itself and other agencies of the State, towns, cities, counties, industry, other states, affected groups, and the federal government in the prevention and control of air pollution.

    III. EPA's Evaluation of the Oklahoma SO2 Interstate Transport Submittal

    (D)(i) Interstate Pollution Transport: There are four requirements the SIP must include relating to interstate transport. The SIP must prohibit emissions within Oklahoma from contributing significantly to the nonattainment of the NAAQS in other states, and from interfering with the maintenance of the NAAQS in other states (section 110(a)(2)(D)(i)(I)). The SIP must also prohibit emissions within Oklahoma both from interfering with measures required to prevent significant deterioration in other states and from interfering with measures required to protect visibility in other states (section 110(a)(2)(D)(i)(II)).

    States can satisfy the requirement to prevent interference with another state's measures to protect visibility by having an EPA approved Regional Haze Program in place. State agencies may also “elect to satisfy prong 4 by providing, as an alternative to relying on its regional haze SIP alone, a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility.” 17 Oklahoma did not include such a demonstration with its i-SIP submittal. On December 28, 2011, we finalized a Federal Implementation Plan (FIP) that in combination with the controls required by the portion of the Oklahoma RH submittal approved in the same rulemaking, would serve to prevent sources in Oklahoma from emitting pollutants in amounts that would interfere with efforts to protect visibility in other states (76 FR 81728). On March 7, 2014, we withdrew the Oklahoma RH and Interstate Transport FIPs' applicability to two units,18 but the FIP provisions applicable to Oklahoma Gas and Electric's Muscogee and Sooner plants remain in place (79 FR 12954). As explained in the i-SIP guidance, “it is the EPA's interpretation of sections 110(a)(1) and 110(a)(2) that the EPA cannot give `credit' for the FIP when determining whether an agency” has met its obligations under these sections.

    17 Guidance on Infrastructure State Implementation Plans (SIP) Elements Under Clean Air Act Sections 110(a)(1) and 110(a)(2). September 13, 2013, p. 34.

    18 These are Units 3 and 4 of the Northeastern Power Station in Rogers County, Oklahoma, which is operated by the American Electric Power/Public Service Company of Oklahoma.

    Therefore, while the FIP provides an appropriate level of SO2 control, the SIP does not and thus our proposal to disapprove for the visibility prong only.

    IV. Proposed Action

    EPA is proposing to partially approve and partially disapprove the June 16, 2016, infrastructure SIP submission from Oklahoma, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2012 PM2.5 NAAQS.

    Based upon review of this infrastructure SIP submission and relevant statutory and regulatory authorities and provisions referenced in these submissions or referenced in the Oklahoma SIP, we believe Oklahoma has the infrastructure in place to address the following required elements of sections 110(a)(1) and (2) to ensure that the 2012 PM2.5 NAAQS are implemented in the State:

    Sections 110(a)(2)(A), (B), (C), (D)(i)(II) for interference with PSD, (D)(ii), (E)(i), (E)(ii), (F), (G), (H), (J), (K), (L) and (M).

    We are not proposing to approve Interstate transport provisions (prongs 1&2): Section 110(a)(2)(D)(i)(I) which were not included in this submission.

    We are proposing to disapprove the Interstate transport provisions for visibility protection (prong 4): Section 110(a)(2)(D)(i)(II).

    We are also proposing to disapprove the January 28, 2015 SIP submission from Oklahoma for the 2010 Sulfur Dioxide (SO2) NAAQS only as it addresses Section 110(a)(2)(D)(i)(II) for visibility protection (prong 4).

    V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

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

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. There is no burden imposed under the PRA because this action merely proposes to approve i-SIP provisions that are consistent with the CAA and disapprove i-SIP provisions that are inconsistent with the CAA.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely proposes to approve i-SIP provisions that are consistent with the CAA and disapprove i-SIP provisions that are inconsistent with the CAA; therefore this action will not impose any requirements on small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action merely proposes to approve i-SIP provisions that are consistent with the CAA and disapprove i-SIP provisions that are inconsistent with the CAA; and therefore will have no impact on small governments.

    E. Executive Order 13132: Federalism

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

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    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 merely proposes to disapprove a SIP submission as not meeting the CAA.

    H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution or Use

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

    I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely proposes to approve i-SIP provisions that are consistent with the CAA and disapprove i-SIP provisions that are inconsistent with the CAA.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Interstate transport of pollution, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 15, 2016. Ron Curry, Regional Administrator, Region 6.
    [FR Doc. 2016-27924 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2016-0382; FRL-9955-21-OAR] RIN 2060-AT15 Revisions to Procedure 2—Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing revisions to a procedure in the New Source Performance Standards (NSPS). The procedure provides the ongoing quality assurance/quality control (QA/QC) procedures for assessing the acceptability of particulate matter (PM) continuous emissions monitoring systems (CEMS). The procedure explains the criteria for passing an annual response correlation audit (RCA) and the criteria for passing an annual relative response audit (RRA). The procedure currently contains a requirement that the annual QA/QC test results for affected facilities must fall within the same response range as was used to develop the existing PM CEMS correlation curve. As a result, some facilities are unable to meet the criteria for passing their annual QA/QC test simply because their emissions are now lower than the range previously set during correlation testing. We are proposing to modify the procedure to allow facilities to extend their PM CEMS correlation regression line to the lowest PM CEMS response obtained during the RCA or RRA, when these PM CEMS responses are less than the lowest response used to develop the existing correlation curve. We also propose to correct a typographical error in the procedure.

    DATES:

    Written comments must be received by December 21, 2016.

    Public Hearing. If anyone contacts the EPA by December 1, 2016 requesting to speak at a public hearing on this action, the EPA will consider holding a public hearing on December 21, 2016 at the EPA facility in Research Triangle Park. Please check the EPA's Web page at https://www3.epa.gov/ttn/emc/proposed.html on December 12, 2016 for the announcement of whether a hearing will be held. To request a public hearing and present oral testimony at the hearing, please contact on or before December 1, 2016, the person listed in the FOR FURTHER INFORMATION CONTACT section of this document. If a hearing is held, the hearing schedule, including the list of speakers, will be posted on the EPA's Web page at https://www3.epa.gov/ttn/emc/proposed.html.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2016-0382, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, Cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Kimberly Garnett, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Measurement Technology Group (E143-02), Research Triangle Park, NC 27711; telephone number: (919) 541-1158; fax number: (919) 541- 0516; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Environmental Protection Agency (EPA) is proposing revisions to a procedure in the New Source Performance Standards (NSPS). We also propose to correct a typographical error in the introduction to Paragraph (6) of section 10.4 of Procedure 2. 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.

    I. Why is the EPA issuing this proposed rule?

    The EPA proposes a revision to Procedure 2, sections 10.4(5)and (6), to allow facilities that have reduced their emissions since completing their PM CEMS correlation testing to extend their correlation regression line to the point corresponding to the lowest PM CEMS response obtained during the RCA or RRA. This extended correlation regression line will 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 proposes to correct 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 in 69 FR 1786. We have published a direct final rule approving the revisions to Procedure 2 in the “Rules and Regulations” section of this Federal Register publication because we view this as a non-controversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble of the direct final rule.

    If we receive no adverse comment, we will not take further action on this proposed rule. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the direct final rule will not take effect. In that case, we would address all public comments in any subsequent final rule based on this proposed rule.

    We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, please see the information provided in the ADDRESSES section of this document.

    The regulatory text for the proposal is identical to that for the direct final rule published in the “Rules and Regulations” section of this Federal Register publication. For further supplementary information, the detailed rationale for the proposal and the regulatory revisions, see the direct final rule published in a separate part of this Federal Register publication.

    II. Does this action apply to me?

    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.

    List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, Air pollution control, Continuous emission monitoring systems, Particulate matter, Procedures.

    Dated: November 8, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-27847 Filed 11-18-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 172 [Docket No. PHMSA-2016-0079 (HM-213E)] RIN 2137-AF25 Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

    ACTION:

    Advance notice of proposed rulemaking (ANPRM).

    SUMMARY:

    PHMSA is publishing this advance notice of proposed rulemaking (ANPRM) in response to the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016, which reauthorizes the pipeline safety program and requires a number of reports and mandates. The PIPES Act requires PHMSA to take regulatory actions to establish minimum safety standards for underground natural gas storage facilities; to update the minimum safety standards for permanent, small scale liquefied natural gas pipeline facilities; and to publish an ANPRM to address a petition for rulemaking proposing hazardous materials regulations related to the marking of identification numbers on cargo tanks. This ANPRM specifically addresses the PIPES Act requirement applicable to the petition for rulemaking related to the marking of identification numbers on cargo tanks. PHMSA will consider the comments, data, and information received in any future action related to the petition.

    DATES:

    Comments must be received by February 21, 2017.

    ADDRESSES:

    You may submit comments identified by the Docket Number PHMSA-2016-0079 (HM-213E) through any of the following methods:

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

    Fax: 1-202-493-2251.

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

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

    Instructions: All submissions must include the agency name and Docket Number (PHMSA-2016-0079) or RIN (2137-AF25) for this notice at the beginning of the comment. Note that all comments received will be posted without change to the docket management system, including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard.

    Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office (see ADDRESSES).

    Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 [45 FR 19477] or you may visit http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Steven Andrews, (202) 366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Executive Summary II. Objective of This ANPRM III. Petitions Being Addressed (P-1667 and P-1668) IV. Background Information A. Rulemakings B. Letters of Interpretation V. Comments and Questions A. General Questions B. Safety Questions C. Policy Analysis Questions VI. Regulatory Analysis A. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures B. Executive Order 13132 C. Executive Order 13175 D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures E. Paperwork Reduction Act F. National Environmental Policy Act G. Privacy Act H. Executive Order 13609 and International Trade Analysis I. Statutory/Legal Authority for This Rulemaking J. Regulation Identifier Number (RIN) I. Executive Summary

    On November 12, 2015, PHMSA received a petition for rulemaking from the Commercial Vehicle Safety Alliance (CVSA) proposing amendments to the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) applicable to the marking of cargo tanks transporting petroleum distillates. In an acknowledgment letter dated November 10, 2015, PHMSA assigned the CVSA petition to Petition Number P-1667 1 (P-1667 or the petition; Docket No: PHMSA-2015-0219). Subsequently, on November 24, 2015, PHMSA received another petition for rulemaking from the American Trucking Association (ATA) proposing amendments to the HMR; this petition is also applicable to the marking of cargo tanks transporting petroleum distillates. In an acknowledgement letter dated November 25, 2015, PHMSA assigned the ATA petition to Petition NumberP-1668 2 (P-1668 or the petition; Docket No: PHMSA-2015-0251).

    1 See P-1667 docket at the following URL: https://www.regulations.gov/docket?D=PHMSA-2015-0219.

    2 See P-1668 docket at the following URL: https://www.regulations.gov/docket?D=PHMSA-2015-0251.

    In this ANPRM, PHMSA outlines issues raised by these two petitions and discusses the background relevant to the marking of cargo tanks containing petroleum distillates. PHMSA further poses a series of questions and solicits public comment to determine the best practice for addressing the issues outlined in these two petitions.

    II. Objective of This ANPRM

    Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.) authorizes the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.” See 49 U.S.C. 5103(b)(1). The Secretary has delegated this authority to PHMSA in 49 CFR 1.97(b). The HMR are designed to achieve three primary goals:

    (1) To help ensure that hazardous materials are packaged and handled safely and securely during transportation;

    (2) to provide effective communication to transportation workers and emergency responders of the hazards of the materials being transported; and

    (3) to minimize the consequences of an incident should one occur.

    The hazardous material regulatory system is a risk management system that is prevention-oriented and focused on identifying a safety or security hazard and reducing the probability and quantity of a hazardous material release.

    Under the HMR, hazardous materials are categorized into hazard classes and packing groups based on analysis of and experience with the risks they present during transportation. The HMR do the following:

    (1) Specify appropriate packaging and handling requirements for hazardous materials based on this classification, and require a shipper to communicate the material's hazards through the use of shipping papers, package marking and labeling, and vehicle placarding;

    (2) require shippers to provide emergency response information applicable to the specific hazard or hazards of the material being transported; and

    (3) mandate training requirements for persons who prepare hazardous materials for shipment or transport hazardous materials in commerce.

    The HMR also include operational requirements applicable to each mode of transportation.

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a rule. See 5 U.S.C. 553(e). In accordance with PHMSA's rulemaking procedure regulations in 49 CFR part 106, interested persons may ask PHMSA to add, amend, or repeal a regulation by filing a petition for rulemaking along with information and arguments that support the requested action. See 49 CFR 106.95. The issues being considered under this ANPRM are derived specifically from petitions submitted to PHMSA by CVSA and ATA regarding the marking of cargo tanks transporting distillate fuels.

    On June 22, 2016, President Barack Obama signed the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act, which in part requires PHMSA to publish an ANPRM to address P-1667 related to the marking of identification numbers on cargo tanks. See Public Law 114-183. Section 15 of the PIPES Act reads as follows:

    EC. 15. HAZARDOUS MATERIALS IDENTIFICATION NUMBERS.

    Not later than 90 days after the date of enactment of this Act, the Secretary of Transportation shall issue an advanced notice of proposed rulemaking to take public comment on the petition for rulemaking dated October 28, 2015, titled “Corrections to Title 49 CFR 172.336 Identification numbers; special provisions” (P-1667).

    As mandated by section 15 of the PIPES Act, the objective of this ANPRM is to solicit comments on P-1667. It further solicits comments on the related petition for rulemaking, P-1668.

    III. Petitions Being Addressed (P-1667 and P-1668)

    Through P-1667 and P-1668, the CVSA and ATA, respectively, asked PHMSA to revise § 172.336(c) of the HMR. In P-1667, CVSA proposed that PHMSA reinstate language that existed in § 172.336(c)(4) and (5) prior to the publication of the HM-219 final rule [78 FR 14702] on March 7, 2013. Prior to HM-219, the paragraphs in § 172.336(c)(4) and (5) read as follows:

    (4) For each of the different liquid petroleum distillate fuels, including gasoline, in a compartmented cargo tank or tank car, if the identification number is displayed for the distillate fuel having the lowest flash point. After October 1, 2000, if a compartmented cargo tank or tank car contains such fuels together with a gasoline and alcohol fuel blend containing more than ten percent ethanol, the identification number “3475” or “1987” must also be displayed as appropriate in addition to the identification number for the liquid petroleum distillate fuel having the lowest flash point.

    (5) For each of the different liquid petroleum distillate fuels, including gasoline transported in a cargo tank, if the identification number is displayed for the liquid petroleum distillate fuel having the lowest flash point.

    CVSA indicated in its petition that the current regulations, as revised by the HM-219 final rule, are inconsistent with the previous requirements. CVSA further noted that the table in § 172.336 has created confusion and lack of uniformity for industry, enforcement, and first responders in regard to the display of identification numbers on multi-compartmented cargo tanks containing different petroleum distillate fuels.

    In P-1668, ATA proposed removing the requirement to display the identification number of the petroleum distillate with the lowest flashpoint, in addition to the identification number for the fuel blend as “3475” or “1987,” on a multi-compartmented cargo tank carrying an alcohol fuel blend with more than 10 percent ethanol. ATA further noted that its comments to the HM-218D final rule [73 FR 4699] that was published on January 28, 2008, suggested a uniform marking for all gasoline and gasoline/alcohol fuel blends, as well as an update to the Emergency Response Guide (ERG) requiring alcohol-resistant foam for all releases. ATA noted that PHMSA disagreed with this statement at the time because “the new shipping description for gasoline/ethanol fuel blends would enhance emergency responders” ability to respond effectively to incidents involving these materials.

    ATA identified several variations between Guide 127 and 128 in the ERG, used in the event of an unintentional release by emergency responders. The fuel blend identification numbers UN 1987 and 3475 are attributed to Guide 127 and Guide 128 as appropriate for several liquid petroleum distillates including UN 1203, 1270, and 1993. As noted by ATA, Guides 127 and 128 differ in the use of “alcohol-resistant foam” versus “regular foam” in the event of small and large fires. PHMSA has indicated that alcohol-resistant foam is necessary for emergency response involving polar/water-miscible flammable liquids, such as ethanol and gasoline fuel blends. In its petition, ATA reiterated the National Tank Truck Carriers' (NTTC) comments to HM-218D, suggesting that rather than displaying the identification number of the petroleum distillate and the alcohol/ethanol fuel blend, PHMSA should instead require the use of alcohol-resistant foam for both fuels in emergency response situations. Furthermore, ATA cited that emergency responders currently use alcohol-resistant foam to treat both types of fuel in the event of an unintentional release, recognizing that the identification number marking for fuel blends with greater than 10 percent ethanol is not needed for emergency response purposes.

    IV. Background A. Rulemakings

    The rulemaking history pertaining to the marking of cargo tanks containing fuel oil and petroleum distillates, as applicable to P-1667, is complex. On June 6, 1979, the Research and Special Programs Administration (RSPA), PHMSA's predecessor agency, published a notice of proposed rulemaking (NPRM) (HM-126A) associated with the use of identification numbers on packages. See 44 FR 32972. In the NPRM, RSPA proposed to require that an identification number be displayed on orange panels affixed to portable tanks, cargo tanks, and tank cars. RSPA proposed a set of standards in § 172.328 that would require cargo tanks to be marked on each side with the identification numbers specified for the material in the Hazardous Materials Table (HMT), which is found in § 172.101. RSPA further proposed to add § 172.328(e) stating that a cargo tank marked with the identification number or name of a specific hazardous material may not be used to transport any other material unless the marking is removed or changed to identify the hazardous material the cargo tank contains.

    RSPA received numerous comments to the HM-126A NPRM expressing concern that the identification number requirements for cargo tanks proposed and codified in § 172.328(e) would limit a carrier's ability to transport fuel oils and distillate fuels in multi-compartmented cargo tanks and tank cars. As a result, in May 22, 1980, RSPA published a final rule titled, “Identification Numbers, Hazardous Substances, International Descriptions, Improved Descriptions, Forbidden Materials, and Organic Peroxides,” which amended the HMR and codified language in § 172.336(c)(3) stating that identification markings are not required for different distillate fuels in the same cargo tank or tank car, if the identification number is displayed for the distillate fuel having the lowest flash point. See 45 FR 34560.

    The May 22, 1980 final rule generated a number of appeals. On November 10, 1980 [45 FR 74640], RSPA published a response to appeals to the May 22, 1980 final rule. In the response, RSPA noted that the provisions for allowing cargo tanks and multi-compartment cargo tanks to only display the identification number of the distillate fuel with lowest flash point were intended to eliminate the need for continuous changes in identification numbers for operations where gasoline and fuel oil are transported in the same cargo tank for different trips that occur on the same day. However, in response to these appeals, RSPA revised the HMR. To address compartmented cargo tanks, RSPA moved regulatory text initially found in § 172.336 from paragraph (c)(3) to (c)(4); and to address cargo tanks and tank cars, RSPA moved regulatory text initially found in § 172.336(c)(3) to (c)(5). These two provisions allowed for the display of the identification number of the liquid distillate fuel having the lowest flash point carried in a cargo tank; however, as noted above, RSPA intended for this exception to be allowed for different trips that occurred on the same day.

    In an April 20, 1987 final rule (HM-166) [52 FR 13034], RSPA revised the HMR and added the term “Gasohol” to § 172.336(c)(4) and (5). This term accounted for new formulations of gasoline mixed with ethyl alcohol (i.e., ethanol) shipped under § 172.336 of the HMR.

    In a January 28, 2008 final rule (HM-218D) [73 FR 4699], PHMSA revised the HMR and added “UN 3475, Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol” to the HMT to address gasoline and ethanol mixtures such as E85.3 PHMSA further identified that emergency response techniques between petroleum distillates and gasoline and ethanol fuel blends differ. Specifically, gasoline and ethanol fuel blends with more than 10 percent ethanol are polar/water-miscible flammable liquids and decrease the effectiveness of alcohol-resistant fire-fighting foam. Due to these differences in fire-fighting methods, PHMSA revised the HMR and adopted language in § 172.336(c)(4) and (5) to clarify that when a petroleum distillate fuel and a gasoline/ethanol fuel blend with more than 10 percent ethanol are both carried on a multi-compartment cargo tank or tank car, the UN identification number “3475” or “1987” must be displayed in addition to the identification number of the petroleum distillate fuel with the lowest flash point. PHMSA notes that both NTTC and the Petroleum Marketers and Convenience Stores of Iowa (PMCI) suggested in their comments to the HM-218D NPRM that revising the Emergency Response Guidebook (ERG) to require alcohol-resistant foam for all flammable liquids (Class 3), rather than adopting a new shipping description for gasoline and ethanol fuel blends, would have made the requirement to display the identification number for the alcohol fuel blend unnecessary.

    3 E85 is an abbreviation for an ethanol fuel blend of 85% denatured ethanol fuel and 15% gasoline or other hydrocarbon by volume.

    In a March 7, 2013 final rule (HM-219) [78 FR 14702], based on a petition for rulemaking (P-1522) from Shell Chemicals,4 PHMSA removed all references to “gasohol” and codified a table to more clearly indicate hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels. The revised text indicates that when a cargo tank contains more than one petroleum distillate fuel, it may be marked with the identification number for the liquid petroleum distillate fuel having the lowest flash point.

    4See P-1522 docket at the following URL: https://www.regulations.gov/searchResults?rpp=10&po=0&s=PHMSA-2008-0171.

    B. Letters of Interpretation

    On October 16, 2000, RSPA issued an interpretation letter (Ref. No. 00-0208 5 ) to the Florida Department of Environmental Protection concerning the identification number markings on cargo tanks containing diesel fuel and gasoline. In this interpretation letter, RSPA stated that if a cargo tank containing gasoline is marked with the identification number for gasoline, “1203,” it may remain so marked on a subsequent trip when the cargo tank contains diesel fuel; however, the letter did not further clarify that this exception only applies to transportation occurring on the same day. Thus, it appears that industry uses this interpretation letter as standard practice to leave the “1203” identification number marking for gasoline on cargo tanks even if the cargo tank is not used for gasoline on any particular day or on a subsequent trip.

    5See Reference Number 00-0208 letter of interpretation at: http://docketsinfo.dot.gov/reports/rspa/2000-10/000208.pdf.

    On June 26, 2015, PHMSA issued an interpretation letter (Ref. No. 14-0178 6 ) to the South Carolina State Police concerning the placement of identification numbers on multi-compartmented cargo tanks containing petroleum distillates. In the example provided in the interpretation letter, all of the compartments in the multi-compartmented cargo tank were loaded with only diesel fuel, but displayed “1203,” the identification number for gasoline. PHMSA's response determined that if a multi-compartmented cargo tank contains the same petroleum distillate fuel (other than gasoline) in each compartment, then it must be marked with the correct identification number for that material—not with “1203.”

    6See Reference Number 14-0178 letter of interpretation at: http://phmsa.dot.gov/portal/site/PHMSA/menuitem.6f23687cf7b00b0f22e4c6962d9c8789/?vgnextoid=2bd1d740bd03e410VgnVCM100000d2c97898RCRD&vgnextfmt=default.

    V. Comments and Questions

    The PIPES Act specifically requires PHMSA to issue an ANPRM to solicit public comment on P-1667. In addition, PHMSA is considering the regulatory changes proposed in P-1668. We invite comment on the following key issues and request that commenters provide data sources to support their positions. If commenters suggest modification to the existing regulatory requirements, PHMSA requests that comments provided be as specific as possible.

    A. General Questions

    1. Are carriers currently marking cargo tanks with the identification number of a petroleum distillate fuel, including gasoline and gasohol, when that material is not present in that cargo tank? If so, why are carriers undertaking this practice? When and where does this practice occur? How prevalent is this practice?

    2. If the answer to question 1 above is yes, how is this being done without violating the prohibitive marking requirements in § 172.303 of the HMR?

    B. Safety Questions

    1. Would marking a cargo tank with the identification number for the liquid petroleum distillate fuel having the lowest flash point, rather than with the identification numbers representing each of the different liquid petroleum distillate fuels including gasoline and gasohol, create concerns for emergency responders?

    2. Does responding to an incident involving diesel fuel differ from responding to an incident involving gasoline—if so, how?

    C. Policy Analysis Questions

    1. How many entities and shipments would be affected by modifying the existing regulatory requirements related to the hazard communication standards for cargo tanks transporting petroleum distillate fuels? In addition, how many of the effected entities would be considered small businesses?

    2. What are the potential costs of modifying the existing regulatory requirements related to hazardous materials communication on cargo tanks pursuant to the petitioners' suggestions? If no specific quantitative data is available, what types of costs would be reasonable to anticipate (e.g., training cost, equipment replacement, etc.)?

    3. What consequences would be mitigated or prevented by modifying the hazard communication requirements for cargo tanks transporting petroleum distillate fuels? Have there been instances in the U.S. safety record when the current requirements and industry practices related to the identification number markings have resulted in emergency response complications, injury, or death?

    4. What are the potential quantifiable safety and societal benefits of modifying the existing regulatory requirements related to hazardous materials communication for cargo tanks?

    5. What are the potential environmental impacts and human health effects of modifying the existing regulatory requirements?

    VI. Regulatory Analysis A. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

    This ANPRM has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (Oct. 4, 1993). Accordingly, this ANPRM has not been reviewed by the Office of Management and Budget (OMB) and is not considered to be a significant regulatory action under the DOT Regulatory Policies and Procedures of February 26, 1979. See 44 FR 11034.

    Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), supplements and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866. Together, Executive Orders 12866 and 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”

    Additionally, Executive Orders 12866 and 13563 require agencies to provide a meaningful opportunity for public participation. Therefore, PHMSA solicits comment on the key issues addressed in this ANPRM.

    B. Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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.” We invite State and local governments with an interest in this rulemaking to comment on any effect that revisions to the HMR relative to identification numbers displayed on cargo tanks may cause.

    C. Executive Order 13175

    Executive Order 13175, “Consultation and Coordination and Indian Tribal Governments,” 65 FR 67249 (Nov. 9, 2000), requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and impose “substantial and direct compliance costs” on such communities. We invite Indian tribal governments to provide comments on the costs and effects that this or a future rulemaking could potentially have on them.

    D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires agencies to consider whether a rulemaking would have a “significant economic impact on a substantial number of small entities.” Small entities include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000.

    As such, PHMSA solicits input from small entities on the issues presented in this ANPRM. If you believe that revisions to the HMR relative to identification numbers on cargo tanks would have a significant economic impact on a substantial number of small entities, please submit a comment to PHMSA. In your comment, please explain how and to what extent your business or organization could be affected, and whether there are alternative approaches to this regulation the agency should consider that would minimize any significant impact on small business while still meeting the agency's statutory objectives

    Any future proposed rule would be developed in accordance with Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), as well as DOT's procedures and policies, so as to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts on small entities of a regulatory action are properly considered.

    E. Paperwork Reduction Act

    Section 1320.8(d), title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. It is possible that new or revised information collection requirements could occur as a result of any future rulemaking action. We invite comment on the need for any collection of information and paperwork burdens that may apply as result of a future rulemaking.

    F. National Environmental Policy Act

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375, requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The Council on Environmental Quality (CEQ) regulations require Federal agencies to conduct an environmental review considering (1) the need for the proposed action, (2) alternatives to the proposed action, (3) probable environmental impacts of the proposed action and alternatives, and (4) the agencies and persons consulted during the consideration process. See 40 CFR 1508.9(b). PHMSA welcomes any data or information related to environmental impacts that may result from this ANPRM.

    G. Privacy Act

    Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register at 65 FR 19477 (April 11, 2000), or you may visit http://www.dot.gov/privacy.html.

    H. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, “Promoting International Regulatory Cooperation,” 77 FR 26413 (May 4, 2012), agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary, or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are, or would be, adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

    Similarly, the Trade Agreements Act of 1979, Public Law 96-39, as amended by the Uruguay Round Agreements Act, Public Law 103-465, prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

    PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of this ANPRM to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this rulemaking is consistent with Executive Order 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.

    I. Statutory/Legal Authority for This Rulemaking

    Federal hazardous materials transportation law, 49 U.S.C. 5101 et seq., authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. The Secretary has delegated this authorization to the Administrator for PHMSA. See 49 CFR 1.97. PHMSA is issuing this ANPRM to gather the necessary information to determine a course of action for clarifying issues pertaining to the display of identification numbers related to the transportation of fuel oils and petroleum distillates.

    J. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

    Issued in Washington, DC, on November 15, 2016, under authority delegated in 49 CFR 1.97. William Schoonover, Acting Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration.
    [FR Doc. 2016-27911 Filed 11-18-16; 8:45 am] BILLING CODE 4910-60-P
    81 224 Monday, November 21, 2016 Notices DEPARTMENT OF AGRICULTURE Meeting of the Council for Native American Farming and Ranching AGENCY:

    Office of Tribal Relations, USDA.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice announces a forthcoming meeting of The Council for Native American Farming and Ranching (CNAFR), a public advisory committee of the Office of Tribal Relations (OTR). Notice of the meetings are provided in accordance with the Federal Advisory Committee Act, as amended. This will be the first meeting held during fiscal year 2017 and will consist of, but not be limited to: Hearing public comments, update of USDA programs and activities, and discussion of committee priorities. This meeting will be open to the public.

    DATES:

    The meeting will be held on December 8, 2015, 10:00 a.m. to 6:00 p.m., and December 9, 2015, 8:30 a.m. to 6:00 p.m. The meeting will be open to the public on both days. Note that a period for public comment will be held on December 8, 2015, from 2:00 p.m. to 4:00 p.m.

    ADDRESSES:

    The meeting will be held at the Flamingo Hotel, 3555 S. Las Vegas Boulevard, Las Vegas, Nevada 89109, in the El Dorado Room.

    Written Comments: Written comments may be submitted to: the CNAFR Contact Person, Josiah Griffin, Acting Designated Federal Officer, USDA/Office of Tribal Relations, 1400 Independence Ave. SW., Whitten Bldg., 501-A; Stop 0160; Washington, DC 20250; by Fax: (202) 720-1058; or by email: [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Questions should be directed to Josiah Griffin, Acting Designated Federal Officer; USDA/Office of Tribal Relations, 1400 Independence Ave. SW., Whitten Bldg., 501-A; Stop 0160; Washington, DC 20250; by Fax: (202) 720-1058 or email: [email protected].

    SUPPLEMENTARY INFORMATION:

    In accordance with the provisions of Section 10(a)(2) of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2), USDA established an advisory council for Native American farmers and ranchers. The CNAFR is a discretionary advisory committee established under the authority of the Secretary of Agriculture.

    The CNAFR will operate under the provisions of the FACA and report to the Secretary of Agriculture. The purpose of the CNAFR is (1) to advise the Secretary of Agriculture on issues related to the participation of Native American farmers and ranchers in USDA programs; (2) to transmit recommendations concerning any changes to USDA regulations or internal guidance or other measures that would eliminate barriers to program participation for Native American farmers and ranchers; (3) to examine methods of maximizing the number of new farming and ranching opportunities created by USDA programs through enhanced extension and financial literacy services; (4) to examine methods of encouraging intergovernmental cooperation to mitigate the effects of land tenure and probate issues on the delivery of USDA programs; (5) to evaluate other methods of creating new farming or ranching opportunities for Native American producers; and (6) to address other related issues as deemed appropriate.

    The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing solutions to the challenges of the aforementioned purposes. Equal opportunity practices were considered in all appointments to the CNAFR in accordance with USDA policies. The Secretary selected the members in November 2016.

    Interested persons may present views, orally or in writing, on issues relating to agenda topics before the CNAFR. Written submissions may be submitted to the contact person on or before November 30, 2015. Oral presentations from the public will be heard from 2:00 p.m. to 4:00 p.m. on December 8, 2015. Those individuals interested in making formal oral presentations should notify the contact person and submit a brief statement of the general nature of the issue they wish to present and the names and addresses of proposed participants by November 30, 2015. All oral presentations will be given three (3) to five (5) minutes depending on the number of participants.

    The OTR will also make the agenda available to the public via the OTR Web site http://www.usda.gov/tribalrelations no later than 10 business days before the meeting and at the meeting. The minutes from the meeting will be posted on the OTR Web site. OTR welcomes the attendance of the public at the CNAFR meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please notify the Contact Person, at least 10 business days in advance of the meeting.

    Dated: November 15, 2016. Leslie Wheelock, Director, Office of Tribal Relations.
    [FR Doc. 2016-27915 Filed 11-18-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice of Solicitation of Applications (NOSA) Inviting Applications for the Rural Economic Development Loan and Grant Programs for Fiscal Year 2017 AGENCY:

    Rural Business-Cooperative Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This Notice is to invite applications for loans and grants under the Rural Economic Development Loan and Grant (REDLG) Programs pursuant to 7 CFR part 4280, subpart A for fiscal year (FY) 2017, subject to the availability of funding. This Notice is being issued in order to allow applicants sufficient time to leverage financing, prepare and submit their applications, and give the Agency time to process applications within FY 2017. Successful applications will be selected by the Agency for funding and subsequently awarded to the extent that funding may ultimately be made available through appropriations. An announcement on the Web site at http://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas will identify the amount received, if any, in the appropriations.

    All applicants are responsible for any expenses incurred in developing their applications.

    DATES:

    The deadlines for completed applications to be received in the USDA Rural Development State Offices no later than 4:30 p.m. (local time) are: Second Quarter, December 31, 2016; Third Quarter, March 31, 2017; and Fourth Quarter, June 30, 2017.

    ADDRESSES:

    Submit applications in paper format to the USDA Rural Development State Office for the State where the Project is located. A list of the USDA Rural Development State Office contacts can be found at: http://www.rd.usda.gov/contact-us/state-offices.

    FOR FURTHER INFORMATION CONTACT:

    Specialty Programs Division, Business Programs, Rural Business-Cooperative Service, U.S. Department of Agriculture, 1400 Independence Avenue SW., MS 3226, Room 4204-South, Washington, DC 20250-3226, or call 202-720-1400. For further information on this Notice, please contact the USDA Rural Development State Office in the State in which the applicant's headquarters is located.

    SUPPLEMENTARY INFORMATION:

    Overview

    Solicitation Opportunity Type: Rural Economic Development Loans and Grants.

    Announcement Type: Initial Solicitation Announcement.

    Catalog of Federal Domestic Assistance Number: 10.854.

    Dates: The deadline for completed applications to be received in the USDA Rural Development State Office no later than 4:30 p.m. (local time) are: Second Quarter, December 31, 2016; Third Quarter, March 31, 2017; and Fourth Quarter, June 30, 2017.

    A. Program Description

    1. Purpose of the Program. The purpose of the program is to promote rural economic development and job creation projects.

    2. Statutory Authority. These Programs are authorized under 7 U.S.C. 940c and 7 CFR part 4280, subpart A. Assistance provided to rural areas, as defined, under this program may include business startup costs, business expansion, business incubators, Technical assistance feasibility studies, Advanced telecommunications services and computer networks for medical, educational, and job training services, and community facilities projects for economic development.

    Awards under the REDLG Programs will be made on a competitive basis using specific selection criteria contained in 7 CFR part 4280, subpart A. Information required to be in the application package includes Standard Form (SF) 424, “Application for Federal Assistance;” a Resolution of the Board of Directors; AD-1047, “Debarment/Suspension Certification;” AD-1049 “Certification Regarding Drug-Free Workplace Requirements;” SF LLL, Restrictions on Lobbying; RD 400-1, “Equal Opportunity Agreement;” RD 400-4, “Assurance Agreement;” Assurance Statement for the Uniform Act; Seismic Certification (if construction); paperwork required in accordance with 7 CFR part 1970, “Environmental Policies and Procedures.” If the proposal involves new construction; large increases in employment; hazardous waste; a change in use, size, capacity, purpose, or location from an original facility; or is publicly controversial, the following is required: environmental documentation in accordance with 7 CFR part 1970;” RUS Form 7, “Financial and Statistical Report;” and RUS Form 7a, “Investments, Loan Guarantees, and Loans,” or similar information; and written narrative of Project description. Applications will be tentatively scored by the State Offices and submitted to the National Office for review.

    3. Definition of Terms. The definitions applicable to this Notice are published at 7 CFR 4280.3.

    4. Application Awards. The Agency will review, evaluate, and score applications received in response to this Notice based on the provisions found in 7 CFR part 4280, subpart A, and as indicated in this Notice. However, the Agency advises all interested parties that the applicant bears the burden in preparing and submitting an application in response to this Notice whether or not funding is appropriated for these Programs in FY 2017.

    B. Federal Award Information

    Type of Awards: Loans and Grants.

    Fiscal Year Funds: FY 2017.

    Available Funds: Anyone interested in submitting an application for funding under these Programs are encouraged to consult the Rural Development Web Newsroom Web site at http://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas for funding information.

    Maximum Award: The Agency anticipates the following maximum amounts per award: Loans—$1,000,000; Grants—$300,000.

    Award Dates: Second Quarter, February 28, 2017; Third Quarter, May 31, 2017; and Fourth Quarter, August 31, 2017.

    Performance Period: October 1, 2016, through September 30, 2017.

    Renewal or Supplemental Awards: None.

    C. Eligibility Information 1. Eligible Applicants

    Loans and grants may be made to any entity that is identified by USDA Rural Development as an eligible borrower under the Rural Electrification Act of 1936, as amended (Act). In accordance with 7 CFR 4280.13, applicants that are not delinquent on any Federal debt or otherwise disqualified from participation in these Programs are eligible to apply. An applicant must be eligible under 7 U.S.C. 940c. Notwithstanding any other provision of law, any former Rural Utilities Service borrower that has repaid or prepaid an insured, direct, or guaranteed loan under the Act, or any not-for-profit utility that is eligible to receive an insured or direct loan under such Act shall be eligible for assistance under section 313(b)(2)(B) of such Act in the same manner as a borrower under such Act. All other restrictions in this Notice will apply.

    The Agency requires the following information to make an eligibility determination. These applications must include, but are not limited to, the following:

    (a) An original and one copy of SF 424, “Application for Federal Assistance (For Non-construction);”

    (b) Copies of applicant's organizational documents showing the applicant's legal existence and authority to perform the activities under the Grant;

    (c) A proposed scope of work, including a description of the proposed Project, details of the proposed activities to be accomplished and timeframes for completion of each task, the number of months duration of the Project, and the estimated time it will take from grant approval to beginning of Project implementation;

    (d) A written narrative that includes, at a minimum, the following items:

    (i) An explanation of why the Project is needed, the benefits of the proposed Project, and how the Project meets the Grant eligible purposes;

    (ii) Area to be served, identifying each governmental unit, i.e., tribe, town, county, etc., to be affected by the Project;

    (iii) Description of how the Project will coordinate Economic Development activities with other Economic Development activities within the Project area;

    (iv) Businesses to be assisted, if appropriate, and Economic Development to be accomplished;

    (v) An explanation of how the proposed Project will result in newly created, increased, or supported jobs in the area and the number of projected new and supported jobs within the next 3 years;

    (vi) A description of the applicant's demonstrated capability and experience in providing the proposed Project assistance, including experience of key staff members and persons who will be providing the proposed Project activities and managing the Project;

    (vii) The method and rationale used to select the areas and businesses that will receive the service;

    (viii) A brief description of how the work will be performed, including whether organizational staff or consultants or contractors will be used; and

    (ix) Other information the Agency may request to assist it in making a grant award determination.

    (e) The last 3 years of financial information to show the applicant's financial capacity to carry out the proposed work. If the applicant is less than 3 years old, at a minimum, the information should include all balance sheet(s), income statement(s), and cash flow statement(s). A current audited report is required if available;

    (f) Documentation regarding the availability and amount of other funds to be used in conjunction with the funds from REDLG; and

    (g) A budget which includes salaries, fringe benefits, consultant costs, indirect costs, and other appropriate direct costs for the Project.

    2. Cost Sharing or Matching

    For loans, either the Ultimate Recipient or the Intermediary must provide supplemental funds for the Project equal to at least 20 percent of the loan to the Intermediary. For grants, the Intermediary must establish a Revolving Loan Fund (or Fund) and contribute an amount equal to at least 20 percent of the Grant. The supplemental contribution must come from Intermediary's funds which may not be from other Federal Grants, unless permitted by law.

    3. Other

    Applications will only be accepted for projects that promote rural economic development and job creation.

    There are no “responsiveness” or “threshold” eligibility criteria for these loans and grants. There is no limit on the number of applications an applicant may submit under this announcement. In addition to the forms listed under the program description, Form AD 3030 “Representations Regulation Felony Conviction and Tax Delinquent Status for Corporate Applicants,” must be completed in the affirmative.

    None of the funds made available by this or any other Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless a Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government.

    None of the funds made available by this or any other Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless a Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government.

    4. Completeness Eligibility

    Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements.

    D. Application and Submission Information 1. Address To Request Application Package

    For further information, entities wishing to apply for assistance should contact the USDA Rural Development State Office provided in the ADDRESSES section of this Notice to obtain copies of the application package.

    Applications must be submitted in paper format. Applications submitted to a Rural Development State Office must be received by the closing date and local time deadline.

    All applicants must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number which can be obtained at no cost via a toll-free request line at (866) 705-5711 or at http://fedgov.dnb.com/webform. Each applicant (unless the applicant is an individual or Federal awarding agency that is excepted from the requirements under 2 CFR 25.110(b) or (c) or has an exception approved by the Federal awarding agency under 2 CFR 25.110(d)) is required to: (i) Be registered in the System for Award Management (SAM) before submitting its application; (ii) provide a valid unique entity identifier in its application; and (iii) continue to maintain an active SAM registration with current information at all times during which it has an active Federal award or an application or plan under consideration by a Federal awarding agency. The Federal awarding agency may not make a Federal award to an applicant until the applicant has complied with all applicable unique entity identifier and SAM requirements and, if an applicant has not fully complied with the requirements by the time the Federal awarding agency is ready to make a Federal award, the Federal awarding agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.

    Please note that applicants must locate the downloadable application package for this program by the Catalog of Federal Domestic Assistance Number or FedGrants Funding Opportunity Number, which can be found at http://www.grants.gov.

    2. Content and Form of Application Submission

    An application must contain all of the required elements. Each selection priority criterion outlined in 7 CFR 4280.42(b) must be addressed in the application. Failure to address any of the criterion will result in a zero-point score for that criterion and will impact the overall evaluation of the application. Copies of 7 CFR part 4280, subpart A, will be provided to any interested applicant making a request to a Rural Development State Office. An original copy of the application must be filed with the Rural Development State Office for the State where the Intermediary is located.

    The applicant documentation and forms needed for a complete application are located in the PROGRAM DESCRIPTION section of this Notice, and 7 CFR part 4280, subpart A. There are no specific formats required per this Notice, and applicants may request forms and addresses from the ADDRESSES section of this Notice.

    (a) There are no specific limitations on the number of pages or other formatting requirements other than those described in the PROGRAM DESCRIPTION section.

    (b) There are no specific limitations on the number of pages, font size and type face, margins, paper size, number of copies, and the sequence or assembly requirements.

    (c) The component pieces of this application should contain original signatures on the original application.

    3. Submission Dates and Times

    (a) Application Deadline Dates: No later than 4:30 p.m. (local time) on: Second Quarter, December 31, 2016; Third Quarter, March 31, 2017; and Fourth Quarter, June 30, 2017.

    Explanation of Dates: Applications must be in the USDA Rural Development State Office by the dates and times as indicated above. If the due date falls on a Saturday, Sunday, or Federal holiday, the application is due the next business day.

    (b) The deadline date means that the completed application package must be received in the USDA Rural Development State Office by the deadline date and time established above. All application documents identified in this Notice are required.

    (c) If completed applications are not received by the deadline established above, the application will neither be reviewed nor considered under any circumstances.

    (d) The Agency will determine the application receipt date based on the actual date postmarked.

    (e) If the grantee has a previously approved indirect cost rate, it is permissible, otherwise, the applicant may elect to charge the 10 percent indirect cost permitted under 2 CFR 200.414(f). Due to the time required to evaluate Indirect Cost Rates, it is likely that all funds will be awarded by the time the Indirect Cost Rate is determined. No foreign travel is permitted. Pre-Federal award costs will only be permitted with prior written approval by the Agency.

    (f) Applicants must submit applications in hard copy format as previously indicated in the APPLICATION AND SUBMISSION INFORMATION section of this Notice. If the applicant wishes to hand deliver its application, the addresses for these deliveries can be located in the ADDRESSES section of this Notice.

    (g) If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    E. Application Review Information 1. Criteria

    All eligible and complete applications will be evaluated and scored based on the selection criteria and weights contained in 7 CFR part 4280, subpart A. Failure to address any one of the criteria by the application deadline will result in the application being determined ineligible, and the application will not be considered for funding.

    2. Review and Selection Process

    The State Offices will review applications to determine if they are eligible for assistance based on requirements contained in 7 CFR part 4280, subpart A. If determined eligible, your application will be submitted to the National Office. Funding of projects is subject to the Intermediary's satisfactory submission of the additional items required by that subpart and the USDA Rural Development Letter of Conditions. The Agency reserves the right to award additional discretionary points under 7 CFR 4280.43.

    In order to distribute funds among the greatest number of projects possible, applications will be reviewed, prioritized, and funded by ranking each State's highest scoring Project in highest to lowest score order. The highest scoring Project from each State will be considered that State's Priority One Project. Priority One projects will be ranked according to score from highest to lowest. The second highest scoring Project from each State will be considered the State's Priority Two Project. Priority Two projects will be ranked according to score from highest to lowest and so forth until all projects have been scored and ranked in priority order. All Priority One projects will be funded before any Priority Two projects and so forth until funds are depleted, so as to ensure broad geographic distribution of funding.

    F. Federal Award Administration Information 1. Federal Award Notices

    Successful applicants will receive notification for funding from the Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the loan/grant award can be approved. Provided the application and eligibility requirements have not changed, an application not selected will be reconsidered in three subsequent quarterly funding competitions for a total of four competitions. If an application is withdrawn, it can be resubmitted and will be evaluated as a new application.

    2. Administrative and National Policy Requirements

    Additional requirements that apply to intermediaries or grantees selected for these Programs can be found in 7 CFR part 4280, subpart A. Awards are subject to USDA grant regulations at 2 CFR Chapter IV which incorporated the Office of Management and Budget (OMB) regulations 2 CFR 200.

    All successful applicants will be notified by letter which will include a Letter of Conditions, and a Letter of Intent to Meet Conditions. This letter is not an authorization to begin performance. If the applicant wishes to consider beginning performance prior to the loan or grant being officially closed, all pre-award costs must be approved in writing and in advance by the Agency. The loan or grant will be considered officially awarded when all conditions in the Letter of Conditions have been met and the Agency obligates the funding for the Project.

    Additional requirements that apply to intermediaries or grantees selected for these Programs can be found in 7 CFR 4280, subpart A; the Grants and Agreements regulations of the U.S. Department of Agriculture codified in 2 CFR parts 400.1 to 400.18, and successor regulations to these parts.

    In addition, all recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation (see 2 CFR part 170). You will be required to have the necessary processes and systems in place to comply with the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282) reporting requirements (see 2 CFR 170.200(b), unless you are exempt under 2 CFR 170.110(b)).

    The following additional requirements apply to intermediaries or grantees selected for these Programs:

    (a) Form RD 4280-2 “Rural Business-Cooperative Service Financial Assistance Agreement.”

    (b) Letter of Conditions.

    (c) Form RD 1940-1, “Request for Obligation of Funds.”

    (d) Form RD 1942-46, “Letter of Intent to Meet Conditions.”

    (e) Form AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions.”

    (f) Form AD-1048 “Certification Regarding Debarment, Suspension, Ineligibility and voluntary Exclusion-Lower Tier Covered Transactions.”

    (g) Form AD-1049, “Certification Regarding a Drug-Free Workplace Requirement (Grants).”

    (h) Form AD-3031, “Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants.” Must be signed by corporate applicants who receive an award under this Notice.

    (i) Form RD 400-4, “Assurance Agreement.” Each prospective recipient must sign Form RD 400-4, Assurance Agreement, which assures USDA that the recipient is in compliance with Title VI of the Civil Rights Act of 1964, 7 CFR part 15 and other Agency regulations. That no person will be discriminated against based on race, color or national origin, in regard to any program or activity for which the re-lender receives Federal financial assistance. That nondiscrimination statements are in advertisements and brochures.

    Collect and maintain data provided by ultimate recipients on race, sex, and national origin and ensure Ultimate Recipients collect and maintain this data. Race and ethnicity data will be collected in accordance with OMB Federal Register notice, “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity” (62 FR 58782), October 30, 1997. Sex data will be collected in accordance with Title IX of the Education Amendments of 1972. These items should not be submitted with the application but should be available upon request by the Agency.

    The applicant and the ultimate recipient must comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Age Discrimination Act of 1975, Executive Order 12250, Executive Order 13166 Limited English Proficiency (LEP), and 7 CFR part 1901, subpart E.

    (i) SF LLL, “Disclosure of Lobbying Activities,” if applicable.

    (j) Use Form SF 270, “Request for Advance or Reimbursement.”

    3. Reporting

    (a) A Financial Status Report and a Project performance activity report will be required of all grantees on a quarterly basis until initial funds are expended and yearly thereafter, if applicable, based on the Federal fiscal year. The grantee will complete the Project within the total time available to it in accordance with the Scope of Work and any necessary modifications thereof prepared by the grantee and approved by the Agency. A final Project performance report will be required with the final Financial Status Report. The final report may serve as the last quarterly report. The final report must provide complete information regarding the jobs created and supported as a result of the grant if applicable. Grantees must continuously monitor performance to ensure that time schedules are being met, projected work by time periods is being accomplished, and other performance objectives are being achieved. Grantees must submit an original of each report to the Agency no later than 30 days after the end of the quarter. The Project performance reports must include, but not be limited to, the following:

    (1) A comparison of actual accomplishments to the objectives established for that period;

    (2) Problems, delays, or adverse conditions, if any, which have affected or will affect attainment of overall Project objectives, prevent meeting time schedules or objectives, or preclude the attainment of particular Project work elements doing established time periods. This disclosure shall be accompanied by a statement of the action taken or planned to resolve the situation; and

    (3) Objectives and timetable established for the next reporting period.

    (4) Any special reporting requirements, such as jobs supported and created, businesses assisted, or economic development which results in improvements in median household incomes, and any other specific requirements, should be placed in the reporting section of the Letter of Conditions.

    (5) Within 90 days after the conclusion of the Project, the grantee will provide a final Project evaluation report. The last quarterly payment will be withheld until the final report is received and approved by the Agency. Even though the grantee may request reimbursement on a monthly basis, the last 3 months of reimbursements will be withheld until a final report, Project performance, and financial status report are received and approved by the Agency.

    In addition to any reports required by 2 CFR 200 and 2 CFR 400.1 to 400.18, the Intermediary or grantee must provide reports as required by 7 CFR part 4280, subpart A.

    G. Federal Awarding Agency Contact(s)

    For general questions about this announcement, please contact your USDA Rural Development State Office provided in the ADDRESSES section of this Notice.

    H. Civil Rights Requirements

    All grants made under this Notice are subject to Title VI of the Civil Rights Act of 1964 as required by the USDA (7 CFR part 15, subpart A) and Section 504 of the Rehabilitation Act of 1973, Title VIII of the Civil Rights Act of 1968, Title IX, Executive Order 13166 (Limited English Proficiency), Executive Order 11246, and the Equal Credit Opportunity Act of 1974.

    I. Other Information Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the information collection requirement contained in this Notice is approved by OMB under OMB Control Number 0570-0070.

    Federal Funding Accountability and Transparency Act

    All applicants, in accordance with 2 CFR part 25, must have a DUNS number, which can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at http://fedgov.dnb.com/webform. Similarly, all applicants must be registered in SAM prior to submitting an application. Applicants may register for the SAM at http://www.sam.gov. All recipients of Federal financial grant assistance are required to report information about first-tier sub-awards and executive total compensation in accordance with 2 CFR part 170.

    Nondiscrimination Statement

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

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

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410;

    (2) fax: (202) 690-7442; or

    (3) email: [email protected]

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

    Dated: November 15, 2016. Samuel H. Rikkers, Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2016-27977 Filed 11-18-16; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-827] Certain Cased Pencils From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission; 2014—2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    In response to requests from interested parties, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain cased pencils (pencils) from the People's Republic of China (PRC). The period of review (POR) is December 1, 2014, through November 30, 2015. The Department preliminarily finds that Shandong Rongxin Import & Export Co., Ltd. (Rongxin) is not eligible for a separate rate, and, thus, remains part of the PRC-wide entity. In addition, we are rescinding the administrative review with respect to Orient International Holding Shanghai Foreign Trade Co., Ltd. (SFTC), and Wah Yuen Stationery Co. Ltd. and its affiliate, Shandong Wah Yuen Stationery Co. Ltd., and its claimed affiliate, Tianjin Tonghe Stationery Co. Ltd. (collectively, Wah Yuen), because the requests for administrative review of these companies were timely withdrawn. Interested parties are invited to comment on these preliminary results.

    DATES:

    Effective November 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mary Kolberg, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1785.

    SUPPLEMENTARY INFORMATION:

    Background

    On December 1, 2015, the Department published a notice of an opportunity to request an administrative review of the antidumping duty order on cased pencils from the PRC.1 On December 30, 2015, Dixon Ticonderoga Company (Dixon) requested an administrative review of Rongxin, and Wah Yuen.2 On December 31, 2015, SFTC requested an administrative review of its own exports during the POR.3 On February 9, 2016, the Department initiated a review of Rongxin, SFTC, and Wah Yuen.4 On March 30, 2016, SFTC timely withdrew its request for administrative review.5 Finally, on May 5, 2016, Dixon timely withdrew its request for an administrative review of Wah Yuen.6

    1See Antidumping and Countervailing Duty Order, Finding, Or Suspended Investigation; Opportunity To Request Administrative Review, 80 FR 75078 (December 1, 2015).

    2See letter from Dixon, re: “Certain Cased Pencils from the People's Republic of China: Request for Administrative Review,” dated December 30, 2015.

    3See letter from SFTC, re: “Request for Administrative Review of the Antidumping Duty Order on Certain Cased Pencils from the People's Republic of China,” dated December 31, 2015.

    4See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 FR 6832 (February 9, 2016) (Initiation Notice).

    5See letter from SFTC, re: “Withdrawal of Request for Review: Administrative Review of the Antidumping Order on Cased Pencils from the People's Republic of China,” dated March 30, 2016.

    6See letter from Dixon, re: “Certain Cased Pencils from the People's Republic of China: Partial Withdrawal of Request for Administrative Review,” dated May 5, 2016.

    Scope of the Order

    The merchandise subject to the order includes certain cased pencils from the PRC. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 9609.1010. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.7 Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description is dispositive.

    7See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado Assistant Secretary for Enforcement and Compliance, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission: Certain Cased Pencils from the People's Republic of China; 2014—2015,” dated concurrently with and hereby adopted by this notice (Preliminary Decision Memorandum).

    Partial Rescission of the Administrative Review

    Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of the Initiation Notice. On March 30, 2016, SFTC timely withdrew its request for a review of its own exports and, on May 5, 2016, Dixon timely withdrew its request for a review of Wah Yuen. Accordingly, the Department is rescinding this administrative review with respect to SFTC and Wah Yuen.

    Methodology

    The Department is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). We have preliminary determined that Rongxin is not eligible for a separate rate; as such, the Department has not calculated a margin for these preliminary results. For a full description of the methodology and analysis underlying our determination, see the Preliminary Decision Memorandum. 8 A list of topics discussed in the Preliminary Decision Memorandum is included as Appendix I to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and it is available to all parties in the Department's Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    8 A list of topics discussed in the Preliminary Decision Memorandum is provided at Appendix I to this notice.

    Preliminary Results of Review

    The Department preliminarily determines that, for the period December 1, 2014, through November 30, 2015, Shandong Rongxin Import & Export Co., Ltd. is part of the PRC-wide entity. The rate applicable to the PRC-wide entity is 114.90 percent.9

    9See Notice of Amended Final Results and Partial Rescission of Antidumping Duty Administrative Review: Certain Cased Pencils from the People's Republic of China, 67 FR 59049 (September 19, 2002).

    Disclosure and Public Comment

    The Department will disclose the analysis performed for these preliminary results within five days of the date of publication of this notice.10 Interested parties may submit case briefs no later than 30 days after the date of publication of the preliminary results.11 Rebuttals, limited to issues raised in the case briefs, may be filed no later than five days after the deadline for filing case briefs.12 Parties submitting briefs should do so pursuant to the Department's electronic filing system ACCESS.

    10See 19 CFR 351.224(b).

    11See 19 CFR 351.309(c)(ii).

    12See 19 CFR 351.309(d).

    Any interested party may request a hearing within 30 days of publication of this notice.13 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.14

    13See 19 CFR 351.310(c).

    14See 19 CFR 351.310(d).

    The Department intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act, unless extended.

    Assessment Rates

    Upon issuing the final results of review, the Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.15 The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of the final results of review. We intend to instruct CBP to liquidate entries containing subject merchandise exported by the PRC-wide entity at the current rate for the PRC-wide entity (i.e., 114.90 percent).

    15See 19 CFR 351.212(b)(1).

    If, in the course of this review, we reverse our preliminary determination and find that Rongxin is eligible for a separate rate, and Rongxin's weighted-average dumping margin is above de minimis (i.e., 0.50 percent) in the final results of this review, we will calculate importer-specific ad valorem rates on the basis of the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of those sales, in accordance with 19 CFR 351.212(b)(1). Where an importer-specific ad valorem rate is zero or de minimis, the Department will instruct CBP to liquidate appropriate entries without regard to antidumping duties.16 For entries that were not reported in the U.S. sales data submitted by Rongxin, the Department will instruct CBP to liquidate such entries at the rate for the PRC-wide entity.

    16See 19 CFR 351.106(c)(2).

    The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future cash deposits of estimated antidumping duties, where applicable.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) If we reverse our decision that Rongxin is entitled to a separate rate, then the cash deposit rate will be the rate established in the final results of this review (except, if the rate is zero or de minimis, then zero cash deposit will be required); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the PRC-wide entity (i.e.,114.90 percent); and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4) and 351.221(b)(4).

    Dated: November 15, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Partial Rescission of Review V. Discussion of the Methodology a. Non-Market Economy Country b. Separate Rate VI. Preliminary Results of Review VII. Recommendation
    [FR Doc. 2016-27960 Filed 11-18-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE743 Marine Mammals; File No. 20443 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that the Alaska Department of Fish and Game, PO Box 115526, Juneau, AK 99811-5526 [Responsible Party: Robert Small, Ph.D.], has applied in due form for a permit to conduct research on marine mammals.

    DATES:

    Written, telefaxed, or email comments must be received on or before December 21, 2016.

    ADDRESSES:

    The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 20443 from the list of available applications.

    These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Rosa González or Sara Young, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216).

    The applicant requests a five-year permit to study harbor seals (Phoca vitulina) throughout their range in Alaska, including Southeast Alaska, Gulf of Alaska and Bering Sea. The overall objective of the research is to provide a greater understanding of the proximate and ultimate factors that regulate their abundance, which is required to develop effective management and conservation strategies. Research activities include aerial, vessel and ground surveys, radio tracking, photo-identification, photograph/video, behavioral observations and monitoring, and capture of up to 350 animals by entanglement in a net in the water or by hoop net or dip net on land. Captured animals may be chemical restraint; physical restraint by hand, net, cage or stretcher. Researchers may collect biological samples (e.g., scat, blood, milk from lactating females, blubber, muscle, skin, hair, mucus membrane swabs, stomach content subsample, tooth and vibrissae); standard morphometrics and weight; measurements of blubber via ultrasound; and inject PIT tags and attach flipper tags. A subset of the captured animals may also be outfitted with external transmitters and data-loggers. The applicant also requests export (worldwide) and import of samples for analysis, incidental disturbance and unintentional mortality of harbor seals and porpoises (Phocoena phocoena), and intentional mortality (euthanasia) of harbor seals.

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

    Dated: November 15, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-27861 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE204 Endangered Species; File No. 19621 AGENCY:

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

    ACTION:

    Notice; receipt of application for a permit modification.

    SUMMARY:

    Notice is hereby given that Michael Arendt, South Carolina Department of Natural Resources, Marine Resources Division, 217 Fort Johnson Road, Charleston, SC 29412, has requested a modification to scientific research Permit No. 19621.

    DATES:

    Written, telefaxed, or email comments must be received on or before December 21, 2016.

    ADDRESSES:

    The modification request and related documents are available for review by selecting “Records Open for Public Comment” from the Features box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 19621 from the list of available applications. These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Amy Hapeman or Malcolm Mohead, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject modification to Permit No. 19621, issued on June 16, 2016 (81 FR 43589) is requested under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226).

    Permit No. 19621 authorizes the Dr. Arendt to study loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempii), green (Chelonia mydas), and leatherback (Dermochelys coriacea) sea turtles in the waters of Florida, Georgia and South Carolina. Researchers may capture animals by trawl or tangle net and perform the following procedures before release: Morphometrics, tagging, photography, biological sampling, ultrasound, marking, laparoscopy and associated transport, transmitter attachment, and/or epibiota removal. A limited number of sea turtles may accidentally die due to capture over the life of the permit. The permit holder requests authorization to: (1) take olive ridley sea turtles (L. olivacea) during all research projects for rare captures that could occur; (2) expand Project 3's area to include coastal shoals adjacent to the Cape Canaveral channel; (3) extend Project 3's duration through October 2020; and (4) increase the annual take of green and loggerhead sea turtles by four and nine turtles, respectively, and authorize double tagging and tissue sampling of a small subset of these animals. Project 3 changes would allow for new collaborations and funding sources to meet the existing objectives to assess the distribution, relative abundance, demographic structure, and health of foraging sea turtles in these waters. The permit expires on June 15, 2021.

    Dated: November 16, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-27975 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF052 Western Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting and scoping sessions.

    SUMMARY:

    The Western Pacific Fishery Management Council (Council) will hold public meetings and scoping sessions to discuss fishery management regulations for the Monument Expanded Area in the Northwestern Hawaiian Islands.

    DATES:

    The Council will hold meetings in Hawaii from Tuesday, December 6 through Saturday, December 17, 2016. For specific dates, times and agendas, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meetings will be held in Hilo, Kona, Kahului, Maui, Lihue, Kauai, Honolulu, Oahu, Kaunakakai, Molokai, HI. See SUPPLEMENTARY INFORMATION for specific locations of the meetings.

    FOR FURTHER INFORMATION CONTACT:

    Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council; telephone: (808) 522-8220.

    SUPPLEMENTARY INFORMATION:

    The Council will hold meetings in Hilo, HI, on Tuesday, December 6, 2016, between 6 p.m. and 9 p.m.; in Kona, HI, on Wednesday, December 7, 2016, between 6 p.m. and 9 p.m.; in Kahului, Maui, HI, on Thursday, December 8, 2016, between 6 p.m. and 9 p.m.; in Lihue, Kauai, HI on Tuesday, December 13, 2016, between 6 p.m. and 9 p.m.; in Honolulu, Oahu, HI, on Thursday, December 15, 2016, between 6 p.m. and 9 p.m.; and in Kaunakakai, Molokai, HI, on Saturday, December 17, 2016, between 1 p.m. and 4 p.m. All times listed are local island times.

    The Hilo meeting will be held at the Hilo Intermediate School Cafeteria, 587 Waianuenue Ave, Hilo, HI 96720. The Kona meeting will be held at the West Hawaii Civic Center, Building G, 74-5044 Ane Keohokalole Hwy, Kailua-Kona, HI 96740. The Maui meeting will be held at the Courtyard Maui Kahului Airport, 532 Keolani Pl, Kahului, HI 96732. The Kauai meeting will be held at the Chiefess Kamakahelei Middle School, 4431 Nuhou St, Lihue, HI 96766. The Oahu meeting will be held at the Ala Moana Hotel, 410 Atkinson Dr, Honolulu, HI 96814. The Molokai meeting will be held at Kaunakakai Elementary School Cafeteria, 30 Ailoa St, Kaunakakai, HI 96761.

    Public scoping and comment periods will be provided in the agenda. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business.

    Schedule and Agenda for All Meetings 1. Visit Informational Booths 2. Informational Briefing on Presidential Proclamation, Council Role in Rule-making Process, Data Discovery 3. Public Comment/Scoping Session 4. Adjourn Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 16, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27973 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA774, 0648-XA806, and 0648-XE766 Marine Mammals and Endangered Species; File Nos. 13927, 16553, and 20532 AGENCY:

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

    ACTION:

    Notice; issuance of permits.

    SUMMARY:

    Notice is hereby given that permits or permit amendments have been issued to the following entities:

    Permit No. 13927-03: James H.W. Hain, Ph.D., Associated Scientists at Woods Hole, Box 721, Woods Hole, MA 02543;

    Permit No. 16553-01: Brent Stewart, Ph.D., J.D., Hubbs SeaWorld Research Institute, 2595 Ingraham Street, San Diego, CA 92109; and

    Permit No. 20532: Stephen John Trumble, Ph.D., Baylor University, 101 Bagby Ave., Waco, TX 76706.

    ADDRESSES:

    The permits and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    FOR FURTHER INFORMATION CONTACT:

    Carrie Hubard (File Nos. 13927-03, 16553-01) and Shasta McClenahan or Jennifer Skidmore (File No. 20532) at (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Requests for a permit or permit amendment had been submitted by the above-named applicants. The requested permits have been issued under the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226), as applicable.

    Permit No. 13927-03: The original permit (No. 13927), issued on October 19, 2011 (76 FR 67151, October 31, 2016) authorized Dr. Hain to conduct aerial and vessel surveys to study North Atlantic right whales (Eubalaena glacialis). Humpback whales (Megaptera novaeangliae), bottlenose dolphins (Tursiops truncatus) and Atlantic spotted dolphins (Stenella frontalis) may be incidentally harassed. Research may occur annually, December through April off the U.S. southeast coast. Two subsequent amendments (13927-01 issued January 13, 2013 and 13927-02 issued December 1, 2015) increased the number of North Atlantic right whale takes and added unmanned aircraft systems, respectively. The minor amendment (No. 13927-03) extends the duration of the permit through October 31, 2017, but does not change any other terms or conditions of the permit.

    Permit No. 16553-01: The original permit (No. 16553), issued on October 24, 2011 (76 FR 68719, November 7, 2011) authorized Dr. Stewart to continue a long term study on pinnipeds in California. California sea lions (Zalophus californianus), northern elephant seals (Mirounga angustirostris), and harbor seals (Phoca vitulina) may be captured and sampled at several sites: San Nicolas Island, San Miguel Island, Santa Rosa Island, Santa Cruz Island, Piedras Blancas, Cape San Martin, and Gorda. The minor amendment (No. 16553-01) extends the duration of the permit through October 31, 2017, but does not change any other terms or conditions of the permit.

    Permit No. 20532: The requested permit (81 FR 59190, August 29, 2016) authorizes receipt, import, and export of biological samples from museum holdings and stranded animals worldwide for scientific research to chronologically profile anthropogenic and physiological data including hormones and pesticides to record exposure and stress. Samples will be from blue (Balaenoptera musculus), gray (Eschrichtius robustus), fin (B. physalus), minke (B. acutorostrata), bowhead (Balaena mysticetus), humpback (Megaptera novaeangliae), and sperm whales (Physeter macrocephalus). Samples may also be obtained from subsistence hunted bowhead whales in Alaska. The permit is valid through November 1, 2021.

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), a final determination has been made that the activities proposed are categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    As required by the ESA, as applicable, issuance of these permits was based on a finding that such permits: (1) Were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA.

    Dated: November 15, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-27860 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF050 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council), Atlantic Herring Committee, Atlantic Herring Advisory Panel and Atlantic Herring Plan Development Team is scheduling a public workshop on the Atlantic Herring Acceptable Biological Catch Control Rule Management Strategy Evaluation to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This workshop will be held on Wednesday, December 7, 2016 at 9 a.m. and Thursday, December 8, 2016 at 8:30 a.m.

    ADDRESSES:

    The workshop will be held at the Sheraton Harborside Hotel, 250 Market Street, Portsmouth, ME 03801; phone: (888) 627-7138; fax: (603) 431-7805.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Introduction

    The New England Fishery Management Council is currently developing Amendment 8 to the Atlantic Herring Fishery Management Plan. Through Amendment 8, the Council expects to establish a long-term control rule for the acceptable biological catch (ABC) of Atlantic herring that may explicitly account for herring's role in the ecosystem and address the biological and ecological requirements of the Atlantic herring resource. A control rule is a method for establishing an annual catch limit or target fishing level based on scientific information. A long-term control rule is needed to provide guidance on setting an annual ABC to account for scientific uncertainty, stock status, and the Council's risk tolerance to maintain a sustainable Atlantic herring stock that includes consideration of herring as a forage species.

    In January 2016, the Council approved conducting a Management Strategy Evaluation (MSE) to support the development of alternatives for an ABC control rule. MSE is a collaborative decision-making process involving more public input and technical analysis than the normal amendment development process. The MSE will help determine how a range of control rules may perform relative to potential objectives.

    The Council held an initial public workshop in May 2016 to develop recommendations for a range of potential objectives of the ABC control rule, how progress towards these objectives may be measured, and the control rules to test. In June 2016, after reviewing the workshop recommendations and additional input from the Herring Plan Development Team, Advisory Panel, and Committee, the Council approved moving forward with the MSE. Technical work has been underway ever since.

    Workshop Purpose

    The purpose of this workshop is to provide continued opportunities for public input on the Management Strategy Evaluation of Atlantic herring ABC control rules.

    Workshop Goals

    The Council is holding this workshop to: Develop a common understanding of the outcomes of the MSE technical simulations, which tested the performance of a range of ABC control rules relative to potential objectives, identified at the May 2016 public workshop and approved by the Council in June. The workshop also aims to get input from stakeholders on: Identifying acceptable ranges of performance for various metrics, so that tradeoffs in achieving objectives may be identified; narrowing the range of Atlantic herring ABC control rule alternatives to consider in more detail; and what, if any, additional (minor) MSE simulation work would be helpful for establishing a long-term ABC control rule. Finally, the workshop will provide a chance for stakeholders of the Atlantic herring fishery to have greater input than typically possible at Council meetings, through constructive and open dialogue among resource users, scientists, fishery managers, and members of the public.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 16, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27974 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE931 Atlantic Highly Migratory Species; Atlantic Shark Management Measures; 2017 Research Fishery AGENCY:

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

    ACTION:

    Notice of intent; request for applications.

    SUMMARY:

    NMFS announces its request for applications for the 2017 shark research fishery from commercial shark fishermen with directed or incidental shark limited access permits. The shark research fishery allows for the collection of fishery-dependent and biological data for future stock assessments and to meet the research objectives of the Agency. The only commercial vessels authorized to land sandbar sharks are those participating in the shark research fishery. Shark research fishery permittees may also land other large coastal sharks (LCS), small coastal sharks (SCS), smoothhound sharks, and pelagic sharks. Commercial shark fishermen who are interested in participating in the shark research fishery need to submit a completed Shark Research Fishery Permit Application in order to be considered.

    DATES:

    Shark Research Fishery Applications must be received no later December 21, 2016.

    ADDRESSES:

    Please submit completed applications to the HMS Management Division at:

    Mail: Attn: Guý DuBeck, HMS Management Division (F/SF1), NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

    Fax: (301) 713-1917.

    Email: [email protected]

    For copies of the Shark Research Fishery Permit Application, please write to the HMS Management Division at the address listed above, call (301) 427-8503 (phone), or fax a request to (301) 713-1917. Copies of the Shark Research Fishery Application are also available at the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/compliance/efp/index.html. Additionally, please be advised that your application may be released under the Freedom of Information Act.

    FOR FURTHER INFORMATION CONTACT:

    Karyl Brewster-Geisz, Guý DuBeck, Larry Redd, at (301) 427-8503 (phone) or (301) 713-1917 (fax), or Delisse Ortiz at 240-681-9037 (phone).

    SUPPLEMENTARY INFORMATION:

    The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Consolidated HMS Fishery Management Plan (FMP) is implemented by regulations at 50 CFR part 635.

    The shark research fishery was established, in part, to maintain time series data for stock assessments and to meet NMFS' research objectives. Since the shark research fishery was established in 2008, the research fishery has allowed for: The collection of fishery-dependent data for current and future stock assessments; the operation of cooperative research to meet NMFS' ongoing research objectives; the collection of updated life-history information used in the sandbar shark (and other species) stock assessment; the collection of data on habitat preferences that might help reduce fishery interactions through bycatch mitigation; evaluation of the utility of the mid-Atlantic closed area on the recovery of dusky sharks and collection of hook-timer and pop-up satellite archival tag (PSAT) information to determine at-vessel and post-release mortality of dusky sharks; and collection of sharks to determine the weight conversion factor from dressed weight to whole weight.

    The shark research fishery allows selected commercial fishermen the opportunity to earn revenue from selling additional sharks, including sandbar sharks. Only the commercial shark fishermen selected to participate in the shark research fishery are authorized to land sandbar sharks subject to the sandbar quota available each year. The base quota is 90.7 metric tons (mt) dressed weight (dw) per year, although this number may be reduced in the event of overharvests, if any. The selected shark research fishery permittees will also be allowed to land other LCS, SCS, smoothhound sharks, and pelagic sharks per any restrictions established on their shark research fishery permit. Generally, the shark research fishery permits are valid only for the calendar year for which they are issued.

    The specific 2017 trip limits and number of trips per month will depend on the availability of funding, number of selected vessels, the availability of observers, the available quota, and the objectives of the research fishery, and will be included in the permit terms at time of issuance. The number of participants in the research fishery changes each year. In 2016, five fishermen were chosen to participate. From 2008 through 2016, there has been an average of seven participants each year with the range from five to eleven. The trip limits and the number of trips taken per month have changed each year the research fishery has been active. Participants may also be limited on the amount of gear they can deploy on a given set (e.g., number of hooks and sets, soak times, length of longline).

    In the 2016 fishing season, NMFS split the sandbar and LCS research fishery quotas equally among selected participants, with each vessel allocated 14.5 mt dw of sandbar shark research fishery quota and 8.0 mt dw of other LCS research fishery quota. NMFS also established a regional dusky bycatch limit where once three or more dusky sharks were brought to the vessel dead in any of five regions across the Gulf of Mexico and Atlantic through the entire year, any shark research fishery permit holder in that region was not able to soak their gear for longer than 3 hours. If, after the change in soak time, there were three or more additional dusky shark interactions (alive or dead) observed, shark research fishery permit holders were not able to make a trip in that region for the remainder of the year, unless otherwise permitted by NMFS. There were slightly different measures established for shark research fishery participants in the mid-Atlantic shark closed area in order to allow NMFS observers to place satellite archival tags on dusky sharks and collect other scientific information on dusky sharks while also minimizing any dusky shark mortality.

    Participants were also required to keep any dead sharks, unless they were a prohibited species, in which case they were required to release them. If the regional non-blacknose SCS, blacknose, smoothhound and/or pelagic shark management group quotas were closed, then the shark research fishery permit holder fishing in the closed region had to discard all of the species from the closed management groups regardless of condition. Any sharks, except prohibited species or closed management groups (i.e., SCS, smoothhound, or pelagic sharks), caught and brought to the vessel alive could have been released alive or landed. In addition, participants were restricted by the number of longline sets as well as the number of hooks they could deploy and have on board the vessel. The vessels participating in the shark research fishery fished an average of one trip per month.

    In order to participate in the shark research fishery, commercial shark fishermen need to submit a completed Shark Research Fishery Application by the deadline noted above (see DATES) showing that the vessel and owner(s) meet the specific criteria outlined below.

    Research Objectives

    Each year, the research objectives are developed by a shark board, which is comprised of representatives within NMFS, including representatives from the Southeast Fisheries Science Center (SEFSC) Panama City Laboratory, Northeast Fisheries Science Center Narragansett Laboratory, the Southeast Regional Office Protected Resources Division, and the HMS Management Division. The research objectives for 2017 are based on various documents, including the 2012 Biological Opinion for the Continued Authorization of the Atlantic Shark Fisheries and the Federal Authorization of a Smoothhound Fishery, as well as recent stock assessments for the U.S. South Atlantic blacknose, U.S Gulf of Mexico blacknose, U.S. Gulf of Mexico blacktip, sandbar, and dusky sharks (all these stock assessments can be found at http://sedarweb.org/). The 2017 research objectives are:

    • Collect reproductive, length, sex, and age data from sandbar and other sharks throughout the calendar year for species-specific stock assessments;

    • Monitor the size distribution of sandbar sharks and other species captured in the fishery;

    • Continue on-going tagging shark programs for identification of migration corridors and stock structure using dart and/or spaghetti tags;

    • Maintain time-series of abundance from previously derived indices for the shark bottom longline observer program;

    • Sample fin sets (e.g., dorsal, pectoral) from prioritized species to further develop fin identification guides;

    • Acquire fin-clip samples of all shark and other species for genetic analysis;

    • Attach satellite archival tags to endangered smalltooth sawfish to provide information on critical habitat and preferred depth, consistent with the requirements listed in the take permit issued under Section 10 of the Endangered Species Act to the SEFSC observer program;

    • Attach satellite archival tags to prohibited dusky and other sharks, as needed, to provide information on daily and seasonal movement patterns, and preferred depth;

    • Evaluate hooking mortality and post-release survivorship of dusky, hammerhead, blacktip, and other sharks using hook-timers and temperature-depth recorders;

    • Evaluate the effects of controlled gear experiments in order to determine the effects of potential hook changes to prohibited species interactions and fishery yields;

    • Examine the size distribution of sandbar and other sharks captured throughout the fishery including in the Mid-Atlantic shark time/area closure off the coast of North Carolina from January 1 through July 31; and

    • Develop allometric and weight relationships of selected species of sharks (e.g., hammerhead, sandbar, blacktip shark).

    Selection Criteria

    Shark Research Fishery Permit Applications will be accepted only from commercial shark fishermen who hold a current directed or incidental shark limited access permit. While incidental permit holders are welcome to submit an application, to ensure that an appropriate number of sharks are landed to meet the research objectives for this year, NMFS will give priority to directed permit holders as recommended by the shark board. As such, qualified incidental permit holders will be selected only if there are not enough qualified directed permit holders to meet research objectives.

    The Shark Research Fishery Permit Application includes, but is not limited to, a request for the following information: Type of commercial shark permit possessed; past participation and availability in the commercial shark fishery (not including sharks caught for display); past involvement and compliance with HMS observer programs per 50 CFR 635.7; past compliance with HMS regulations at 50 CFR part 635; past and present availability to participate in the shark research fishery year-round; ability to fish in the regions and season requested; ability to attend necessary meetings regarding the objectives and research protocols of the shark research fishery; and ability to carry out the research objectives of the Agency. Preference will be given to those applicants who are willing and available to fish year-round and who affirmatively state that they intend to do so, in order to ensure the timely and accurate data collection NMFS needs to meet this year's research objectives. An applicant who has been charged criminally or civilly (e.g., issued a Notice of Violation and Assessment (NOVA) or Notice of Permit Sanction) for any HMS-related violation will not be considered for participation in the shark research fishery. In addition, applicants who were selected to carry an observer in the previous 2 years for any HMS fishery, but failed to contact NMFS to arrange the placement of an observer as required per 50 CFR 635.7, will not be considered for participation in the 2017 shark research fishery. Applicants who were selected to carry an observer in the previous 2 years for any HMS fishery and failed to comply with all the observer regulations per 50 CFR 635.7 will also not be considered. Exceptions will be made for vessels that were selected for HMS observer coverage but did not fish in the quarter when selected and thus did not require an observer. Applicants who do not possess a valid USCG safety inspection decal when the application is submitted will not be considered. Applicants who have been non-compliant with any of the HMS observer program regulations in the previous 2 years, as described above, may be eligible for future participation in shark research fishery activities by demonstrating 2 subsequent years of compliance with observer regulations at 50 CFR 635.7.

    Selection Process

    The HMS Management Division will review all submitted applications and develop a list of qualified applicants from those applications that are deemed complete. A qualified applicant is an applicant that has submitted a complete application by the deadline (see DATES) and has met the selection criteria listed above. Qualified applicants are eligible to be selected to participate in the shark research fishery for 2017. The HMS Management Division will provide the list of qualified applicants without identifying information to the SEFSC. The SEFSC will then evaluate the list of qualified applicants and, based on the temporal and spatial needs of the research objectives, the availability of observers, the availability of qualified applicants, and the available quota for a given year, will randomly select qualified applicants to conduct the prescribed research. Where there are multiple qualified applicants that meet the criteria, permittees will be randomly selected through a lottery system. If a public meeting is deemed necessary, NMFS will announce details of a public selection meeting in a subsequent Federal Register notice.

    Once the selection process is complete, NMFS will notify the selected applicants and issue the shark research fishery permits. The shark research fishery permits will be valid only in calendar year 2017. If needed, NMFS will communicate with the shark research fishery permit holders to arrange a captain's meeting to discuss the research objectives and protocols. NMFS held mandatory captain's meetings before observers were placed on vessels since 2013 and expects to hold one again in late 2016 or early 2017. Once the fishery starts, the shark research fishery permit holders must contact the NMFS observer coordinator to arrange the placement of a NMFS-approved observer for each shark research trip. Additionally, selected applicants are expected to allow observers the opportunity to perform their duties as required and assist observers as necessary.

    A shark research fishery permit will only be valid for the vessel and owner(s) and terms and conditions listed on the permit, and, thus, cannot be transferred to another vessel or owner(s). Shark research fishery permit holders must carry a NMFS-approved observer in order to land sandbar sharks. Issuance of a shark research permit does not guarantee that the permit holder will be assigned a NMFS-approved observer on any particular trip. Rather, issuance indicates that a vessel may be issued a NMFS-approved observer for a particular trip, and on such trips, may be allowed to harvest Atlantic sharks, including sandbar sharks, in excess of the retention limits described in 50 CFR 635.24(a). These retention limits will be based on available quota, number of vessels participating in the 2017 shark research fishery, the research objectives set forth by the shark board, the extent of other restrictions placed on the vessel, and may vary by vessel and/or location. When not operating under the auspices of the shark research fishery, the vessel would still be able to land LCS, SCS, smoothhound sharks, and pelagic sharks subject to existing retention limits on trips without a NMFS-approved observer.

    NMFS annually invites commercial shark permit holders (directed and incidental) to submit an application to participate in the shark research fishery. Permit applications can be found on the HMS Management Division's Web site at http://www.nmfs.noaa.gov/sfa/hms/compliance/efp/index.html or by calling (301) 427-8503. Final decisions on the issuance of a shark research fishery permit will depend on the submission of all required information by the deadline (see DATES), and NMFS' review of applicant information as outlined above. The 2017 shark research fishery will start after the opening of the shark fishery and under available quotas as published in a separate Federal Register final rule.

    Dated: November 15, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27904 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF047 Fisheries of the Gulf of Mexico and South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Stock Identification (ID) Webinar for Gray Snapper AGENCY:

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

    ACTION:

    Notice of SEDAR 51 Stock ID Webinar for Gray Snapper.

    SUMMARY:

    The SEDAR 51 assessment of the Gray Snapper will consist of a data workshop, a review workshop, and a series of assessment Webinars,

    DATES:

    The SEDAR 51 Stock ID Webinar will be held from 1 p.m. to 4 p.m. on December 7, 2016, to view the agenda see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    Meeting address: The meeting will be held via Webinar. The Webinar is open to members of the public. Those interested in participating should contact Julie A. Neer, at SEDAR (see Contact Information Below) to request an invitation providing Webinar access information. Please request webinar invitations at least 24 hours in advance of each Webinar.

    SEDAR address: 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405.

    FOR FURTHER INFORMATION CONTACT:

    Julie A. Neer, SEDAR Coordinator; (843) 571-4366. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.

    The items of discussion in the Stock ID Webinars are as follows:

    1. Participants will use review genetic studies, growth patterns, existing stock definitions, prior SEDAR stock ID recommendations, and any other relevant information on Gray Snapper stock structure.

    2. Participants will make recommendations on biological stock structure and define the unit stock or stocks to be addressed through this assessment.

    3. Participants will provide recommendations to address Council management jurisdictions, to support management of the stock or stocks, and specification of management benchmarks and fishing levels by Council jurisdiction in a manner consistent with the productivity measures of the stock.

    4. Participants will document work group discussion and recommendations through a Data Workshop working paper for SEDAR 51.Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see ADDRESSES), at least 3 business days prior to each workshop. Note: The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 16, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27957 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE926 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Air Force Conducting Maritime Weapon Systems Evaluation Program Operational Testing Within the Eglin Gulf Test and Training Range AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS (hereinafter, “we”) received an application from the U.S. Department of the Air Force, Headquarters 96th Air Base Wing (Air Force), Eglin Air Force Base (Eglin AFB), requesting an Incidental Harassment Authorization (IHA or Authorization) to take marine mammals, by harassment, incidental to a Maritime Weapon Systems Evaluation Program (Maritime WSEP) within a section of the Eglin Gulf Test and Training Range in the northern Gulf of Mexico.

    Eglin AFB's Maritime WSEP activities are military readiness activities per the Marine Mammal Protection Act (MMPA), as amended by the National Defense Authorization Act of 2004 (NDAA). Per the MMPA, NMFS requests comments on its proposal to issue an Authorization to Eglin AFB to incidentally take, by Level B and Level A harassment, two species of marine mammals, the Atlantic bottlenose dolphin (Tursiops truncatus) and Atlantic spotted dolphin (Stenella frontalis), during the specified activity.

    DATES:

    NMFS must receive comments and information no later than December 21, 2016.

    ADDRESSES:

    Address comments on the application to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected] Please include RIN 0648-XE926 in the subject line. Comments sent via email to [email protected], including all attachments, must not exceed a 25-megabyte file size. NMFS is not responsible for email comments sent to addresses other than the one provided in this notice.

    Instructions: All submitted comments are a part of the public record, and generally we will post them to http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    To obtain an electronic copy of Eglin AFB's application, a list of the references used in this document, and Eglin AFB's Environmental Assessment (EA) titled, “Maritime Weapons System Evaluation Program,” write to the previously mentioned address, telephone the contact listed here (see FOR FURTHER INFORMATION CONTACT), or visit the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm.

    FOR FURTHER INFORMATION CONTACT:

    Dale Youngkin, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after NMFS provides a notice of a proposed authorization to the public for review and comment: (1) NMFS makes certain findings; and (2) the taking is limited to harassment.

    An Authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated earlier and amended the definition of harassment as it applies to a “military readiness activity” to read as follows (section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).

    Summary of Request

    On February 4, 2016, we issued an Authorization to Eglin AFB to take marine mammals, by harassment, incidental to a Maritime Weapon Systems Evaluation Program (Maritime WSEP) within the Eglin Gulf Test and Training Range (EGTTR) in the Gulf of Mexico from February 4, 2016 through February 3, 2017 (see 81 FR 7307; February 11, 2016). These proposed missions were very similar to previous Maritime WSEP mission activities for which incidental harassment authorizations were issued the previous year (80 FR 17394). On September 19, 2016, we received a renewal request for an Authorization from Eglin AFB to continue the missions authorized in 2016. We considered the revised renewal request as adequate and complete on September 27, 2016.

    Due to the ongoing nature of these activities, as well as the fact that other mission activities are conducted within the EGTTR, we have discussed developing a rulemaking to encompass all mission activities in the EGTTR, and anticipate that the Maritime WSEP activities will be part of that future rulemaking. However, this IHA is being proposed due to timing constraints to ensure that these activities are in compliance with the Marine Mammal Protection Act (MMPA) while the future rulemaking is in process.

    Eglin AFB proposes to conduct Maritime WESP missions within the EGTTR airspace over the Gulf of Mexico within Warning Area 151 (W-151), specifically within sub-area W-151A (see Figure 2-1 of Eglin AFB's application and Figure 1 below). The proposed Maritime WSEP training activities are planned to occur during daylight hours in February and March 2017, however, the activities could occur between February 4, 2017, and February 3, 2018.

    Eglin AFB proposes to use multiple types of live munitions (e.g., gunnery rounds, rockets, missiles, and bombs) against small boat targets in the EGTTR. These activities qualify as military readiness activities.

    The following aspects of the proposed Maritime WSEP training activities have the potential to take marine mammals: Exposure to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water. Take, by Level B harassment, of individuals of common bottlenose dolphin or Atlantic spotted dolphin could potentially result from the specified activity. Additionally, although NMFS does not expect it to occur, Eglin AFB has also requested authorization for Level A Harassment of up to three individuals of either common bottlenose dolphins or Atlantic spotted dolphins. Therefore, Eglin AFB has requested authorization to take individuals of two cetacean species by Level A and Level B harassment.

    Eglin AFB's Maritime WSEP training activities may potentially impact marine mammals at or near the water surface in the absence of mitigation. Marine mammals could potentially be harassed, injured, or killed by exploding and non-exploding projectiles, and falling debris. However, based on analyses provided in Eglin AFB's 2016 application, Eglin AFB's previous applications and Authorizations Eglin AFB's 2015 Environmental Assessment (EA), and past monitoring reports for the authorized activities conducted in February and March 2016 and 2015, and for reasons discussed later in this document, we do not anticipate that Eglin AFB's Maritime WSEP activities would result in any serious injury or mortality to marine mammals.

    For Eglin AFB, this would be the third such Authorization, if issued, following the Authorization issued effective from February 4, 2016, through February 3, 2017 (see 81 FR 7307; February 11, 2016). This IHA would be effective from February 4, 2017, through February 3, 2018, if issued. The monitoring report associated with the 2016 Authorization is available at www.nmfs.noaa.gov/pr/permits/incidental/military.htm and provides additional environmental information related to proposed issuance of this Authorization for public review and comment.

    Description of the Specified Activity Overview

    Eglin AFB proposes to conduct live ordnance testing and training in the Gulf of Mexico as part of the Maritime WSEP operational testing missions. The Maritime WSEP test objectives are to evaluate maritime deployment data, evaluate tactics, techniques and procedures, and to determine the impact of techniques and procedures on combat Air Force training. The need to conduct this type of testing has developed in response to increasing threats at sea posed by operations conducted from small boats, which can carry a variety of weapons, can form in large or small numbers, and may be difficult to locate, track, and engage in the marine environment. Because of limited Air Force aircraft and munitions testing on engaging and defeating small boat threats, Eglin AFB proposes to employ live munitions against boat targets in the EGTTR in order to continue development of techniques and procedures to train Air Force strike aircraft to counter small maneuvering surface vessels.

    Dates and Duration

    Eglin AFB proposes to schedule up to eight Maritime WSEP training missions occurring during a one-week period in February 2017 and a one-week period in March 2017. The proposed missions would occur for up to four hours each day during the morning hours, with multiple live munitions being released per day. However, the proposed Authorization, would be effective to cover those activities anytime during the period from February 4, 2017 through February 3, 2018.

    Specified Geographic Region

    The specific planned mission location is approximately 17 miles (mi) (27.3 kilometers (km)) offshore from Santa Rosa Island, Florida, in nearshore waters of the continental shelf in the Gulf of Mexico. All activities would take place within the EGTTR, defined as the airspace over the Gulf of Mexico controlled by Eglin AFB, beginning at a point three nautical miles (nmi) (3.5 mi; 5.5 km) from shore. The EGTTR consists of subdivided blocks including Warning Area 151 (W-151) where the proposed activities would occur, specifically in sub-area W-151A (shown in Figure 1).

    W-151: The inshore and offshore boundaries of W-151 are roughly parallel to the shoreline contour. The shoreward boundary is three nmi (3.5 mi; 5.5 km) from shore, while the seaward boundary extends approximately 85 to 100 nmi (97.8 mi; 157.4 km to 115 mi; 185.2 km) offshore, depending on the specific location. W-151 covers a surface area of approximately 10,247 square nmi (nmi2) (13,570 square mi (mi2); 35,145 square km (km2)), and includes water depths ranging from about 20 to 700 meters (m) (65.6 to 2296.6 feet (ft)). This range of depth includes continental shelf and slope waters. Approximately half of W-151 lies over the shelf.

    W-151A: W-151A extends approximately 60 nmi (69.0 mi; 111.1 km) offshore and has a surface area of 2,565 nmi2 (3,396.8 mi2; 8,797 km2). Water depths range from about 30 to 350 m (98.4 to 1148.2 ft) and include continental shelf and slope zones. However, most of W-151A occurs over the continental shelf, in water depths less than 250 m (820.2 ft). Maritime WSEP training missions will occur in the shallower, northern inshore portion of the sub-area, in a water depth of about 35 meters (114.8 ft).

    EN21NO16.025 Detailed Description of Activities

    The Maritime WSEP training missions include the release of multiple types of inert and live munitions from fighter and bomber aircraft, unmanned aerial vehicles, and gunships against small, static, towed, and remotely-controlled boat targets. Munition types include bombs, missiles, rockets, and gunnery rounds (Table 1).

    Table 1—Live Munitions and Aircraft Munitions Aircraft
  • (not associated with
  • specific munitions)
  • GBU-10/-24/-31 F-16C fighter aircraft. GBU-49 F-16C+ fighter aircraft. JASSM F-15E fighter aircraft. GBU-12 (PWII)/-54 (LJDAM)/-38/-32 (JDAM) A-10 fighter aircraft. AGM-65 (Maverick) B-1B bomber aircraft. CBU-105 (WCMD) B-52H bomber aircraft. GBU-39 (Small Diameter Bomb) MQ-1/9 unmanned aerial vehicle. AGM-114 (Hellfire) AC-130 gunship. AGM-176 (Griffin) 2.75 Rockets/AGR-20A/B AIM-9X PGU-12/B high explosive incendiary 30 mm rounds Key: AGM = air-to-ground missile; CBU = Cluster Bomb Unit; GBU = Guided Bomb Unit; LJDAM = Laser Joint Direct Attack Munition; Laser SDB = Laser Small Diameter Bomb; mm = millimeters; PGU = Projectile Gun Unit; WCMD = wind corrected munition dispenser.

    The proposed Maritime WSEP training activities involve detonations above the water, near the water surface, and under water within the EGTTR. However, because the tests will focus on weapons/target interaction, Eglin AFB will not specify a particular aircraft for a given test as long as it meets the delivery parameters.

    Eglin AFB would deploy the munitions against static, towed, and remotely-controlled boat targets within the W-151A. Eglin AFB would operate the remote-controlled boats from an instrumentation barge (i.e., the Gulf Range Armament Test Vessel; GRATV) anchored on site within the test area. The GRATV would provide a platform for video cameras and weapons-tracking equipment.

    Table 2 lists the number, height, or depth of detonation, explosive material, and net explosive weight (NEW) in pounds (lbs) of each munition proposed for use during the Maritime WSEP activities.

    Table 2—Maritime WSEP Munitions Proposed for Use in the W-151A Test Area Type of munition Total number
  • of live
  • munitions
  • Detonation type Net explosive
  • weight per
  • munition
  • GBU-10/-24/-31 2 Subsurface (10-ft depth) 945 lbs. GBU-49 4 Surface 500 lbs. JASSM 4 Surface 255 lbs. GBU-12 (PWII)/-54 (LJDAM)/-38/-32 (JDAM) 6 Subsurface (10-ft depth) 192 lbs. AGM-65 (Maverick) 8 Surface 86 lbs. CBU-105 (WCMD) 4 Airburst 83 lbs. GBU-39 (Small Diameter Bomb) 4 Surface 37 lbs. AGM-114 (Hellfire) 20 Subsurface (10-ft depth) 20 lbs. AGM-176 (Griffin) 10 Surface 13 lbs. 2.75 Rockets/AGR-20A/B 100 Surface 12 lbs. AIM-9X 1 Surface 7.9 lbs. PGU-12/B high explosive incendiary 30 mm rounds 1,000 Surface 0.1 lbs. Key: AGL = above ground level; AGM = air-to-ground missile; CBU = Cluster Bomb Unit; GBU = Guided Bomb Unit; JDAM = Joint Direct Attack Munition; LJDAM = Laser Joint Direct Attack Munition; mm = millimeters; msec = millisecond; lbs = pounds; PGU = Projectile Gun Unit; HEI = high explosive incendiary.

    At least two ordnance delivery aircraft will participate in each live weapons release training mission, which lasts approximately four hours. Before delivering the ordnance, mission aircraft would make a dry run over the target area to ensure that it is clear of commercial and recreational boats. Jets will fly at a minimum air speed of 300 knots (approximately 345 miles per hour, depending on atmospheric conditions) and at a minimum altitude of 305 m (1,000 ft). Due to the limited flyover duration and potentially high speed and altitude, the pilots would not participate in visual surveys for protected species. Eglin AFB's 2016 and 2015 Authorization renewal request, 2014 application for the same activities, and 2015 EA and Finding of No Significant Impact (FONSI) contain additional detailed information on the Maritime WSEP training activities and are all available online (http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm#af_eglinwsep2016).

    Description of Marine Mammals in the Area of the Specified Activity

    Table 3 lists marine mammal species with potential or confirmed occurrence in the proposed activity area during the project timeframe and summarizes key information regarding stock status and abundance. Please see NMFS' 2015 and 2014 Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars and Garrison et al., 2008; Navy, 2007; Davis et al., 2000 for more detailed accounts of these stocks' status and abundance.

    Table 3—Marine Mammals That May Occur in the Proposed Activity Area Species Stock name Regulatory
  • status 1 2
  • Estimated
  • abundance
  • Relative
  • occurrence
  • in W-151
  • Common bottlenose dolphin Choctawatchee Bay MMPA—S
  • ESA—NL
  • 179
  • CV = 0.04 3
  • Uncommon.
    Pensacola/East Bay MMPA—S
  • ESA—NL
  • 33
  • CV = 0.80 4
  • Uncommon.
    St. Andrew Bay MMPA—S
  • ESA—NL
  • 124
  • CV = 0.57 4
  • Uncommon.
    Gulf of Mexico Northern Coastal MMPA—S
  • ESA—NL
  • 7,185
  • CV = 0.21 3
  • Common.
    Northern Gulf of Mexico Continental Shelf MMPA—NC
  • ESA—NL
  • 51,192
  • CV = 0.10 3
  • Uncommon.
    Northern Gulf of Mexico Oceanic MMPA—NC
  • ESA—NL
  • 5,806
  • CV = 0.39 4
  • Uncommon.
    Atlantic spotted dolphin Northern Gulf of Mexico MMPA—NC
  • ESA—NL
  • 37,611 4
  • CV = 0.28
  • Common.
    1 MMPA: D = Depleted, S = Strategic, NC = Not Classified. 2 ESA: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 3 NMFS Draft 2015 SAR (Waring et al., 2015). 4 NMFS 2014 SAR (Waring et al., 2014).

    An additional 19 cetacean species could occur within the northeastern Gulf of Mexico, mainly occurring at or beyond the shelf break (i.e., water depth of approximately 200 m (656.2 ft)) located beyond the W-151A test area. NMFS and Eglin AFB consider these 19 species to be rare or extralimital within the W-151A test location area. These species are the Bryde's whale (Balaenoptera edeni), sperm whale (Physeter macrocephalus), dwarf sperm whale (Kogia sima), pygmy sperm whale (K. breviceps), pantropical spotted dolphin (Stenella attenuata), Clymene dolphin (S. clymene), spinner dolphin (S. longirostris), striped dolphin (S. coeruleoalba), Blainville's beaked whale (Mesoplodon densirostris), Gervais' beaked whale (M. europaeus), Cuvier's beaked whale (Ziphius cavirostris), killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), pygmy killer whale (Feresa attenuata), Risso's dolphin (Grampus griseus), Fraser's dolphin (Lagenodelphis hosei), melon-headed whale (Peponocephala electra), rough-toothed dolphin (Steno bredanensis), and short-finned pilot whale (Globicephala macrorhynchus).

    Of these species, only the sperm whale is listed as endangered under the Endangered Species Act (ESA) and as depleted throughout its range under the MMPA. Sperm whale occurrence within W-151A is unlikely because almost all reported sightings have occurred in water depths greater than 200 m (656.2 ft).

    Because these species are unlikely to occur within the W-151A area, Eglin AFB has not requested and we are not proposing to authorize take for them. Thus, we do not consider these species further in this notice.

    We have reviewed Eglin AFB's species descriptions, including life history information, distribution, regional distribution, diving behavior, and acoustics and hearing, for accuracy and completeness. That information is contained in sections 3 and 4 of Eglin AFB's 2016 Authorization application and to Chapter 3 in Eglin AFB's EA rather than reprinting the information here.

    Other Marine Mammals in the Proposed Action Area

    The endangered West Indian manatee (Trichechus manatus) rarely occurs in the area (USAF 2014). The U.S. Fish and Wildlife Service has jurisdiction over the manatee; therefore, we would not include a proposed Authorization to harass manatees and do not discuss this species further in this notice.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components (e.g., exposure to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water) of the specified activity, including mitigation may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that we expect Eglin AFB to take during this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity would impact marine mammals. We will consider the content of the following sections: “Estimated Take by Incidental Harassment” and “Proposed Mitigation” to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals—and from that consideration—the likely impacts of this activity on the affected marine mammal populations or stocks.

    In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects to marine mammals from sound produced by underwater detonations.

    Brief Background on Sound and WSEP Sound Types

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that we reference all underwater sound levels in this document to a pressure of 1 μPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Acousticians calculate rms by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that one can account for the values in the summation of pressure levels (Hastings and Popper 2005). Researchers often use this measurement in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate, or activity occurs, sound-pressure waves are created that alternately compress and decompress the water as the sound wave travels. These underwater sound waves radiate in all directions away from the source similar to ripples on the surface of a pond except in cases where the sound is directional. Aquatic life and underwater receptors such as hydrophones detect the changes in pressure associated with the compressions and decompressions of underwater sound waves as underwater sound or noise. Even in the absence of sound from the specified activity, the underwater environment has noise, or ambient sound, which is the environmental background sound levels lacking a single source or point (Richardson et. al., 1995). The sound level of a region is defined by the total acoustic energy being generated by known and unknown sources. These sources can be physical (e.g., waves, earthquakes, ice, or atmospheric sound); biological (e.g., sounds produced by marine mammals, fish, and invertebrates); and anthropogenic (e.g., vessels, dredging, aircraft, or construction).

    The sum of the various natural and anthropogenic sound sources at any given location and time comprising the ambient, or background, sound depends on the source levels (as determined by weather conditions and levels of biological and anthropogenic activities) and the ability of sounds to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et. al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    Sounds fall into one of two general sound types: Impulsive (defined in the following paragraphs) and non-pulsed. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al., (2007) for an in-depth discussion of these concepts. The sounds produced by the proposed WSEP activities are impulsive. Impulsive sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986; Harris, 1998; NIOSH, 1998; ISO, 2003; ANSI, 2005) and occur either as isolated events or repeated in some succession. These sounds have a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Marine Mammal Hearing

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson et al., 1995; Southall et al., 1997; Wartzok and Ketten 1999; Au and Hastings 2008).

    Animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range. For mid-frequency cetaceans, such the common bottlenose dolphin and the Atlantic spotted dolphin (the two marine mammal species with expected occurrence in the EGTTR WSEP mission area), functional hearing estimates occur between approximately 150 Hz and 160 kHz with best hearing estimated to occur between approximately 10 to less than 100 kHz (Finneran et al., 2005 and 2009; Natchtigall et al., 2005 and 2008; Yuen et al., 2005; Popov et al., 2010 and 2011; and Schlundt et al., 2011).

    On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance)(NMFS 2016; 81 FR 51694). This new guidance established new thresholds for predicting onset of temporary (TTS) and permanent (PTS) threshold shifts for impulsive (e.g., explosives and impact pile drivers) and non-impulsive (e.g., vibratory pile drivers) sound sources. These acoustic thresholds are presented using dual metrics of cumulative sound exposure level (SELcum) and peak sound level (PK) for impulsive sounds and SELcum for non-impulsive sounds. Eglin AFB used the new acoustic Technical Guidance to evaluate potential effects to marine mammals (more detailed information on PTS and TTS is provided below).

    Common Bottlenose Dolphin Vocalization and Hearing

    Bottlenose dolphins can typically hear within a broad frequency range of 0.04 to 160 kHz (Au 1993; Turl 1993). Electrophysiological experiments suggest that the bottlenose dolphin brain has a dual analysis system: One specialized for ultrasonic clicks and another for lower-frequency sounds, such as whistles (Ridgway 2000). Scientists have reported a range of highest sensitivity between 25 and 70 kHz, with peaks in sensitivity at 25 and 50 kHz (Nachtigall et al., 2000). Research on the same individuals indicates that auditory thresholds obtained by electrophysiological methods correlate well with those obtained in behavior studies, except at lower (10 kHz) and higher (80 and 100 kHz) frequencies (Finneran and Houser 2006).

    Sounds emitted by common bottlenose dolphins fall into two broad categories: Pulsed sounds (including clicks and burst-pulses) and narrow-band continuous sounds (whistles), which usually are frequency modulated. Clicks have a dominant frequency range of 110 to 130 kHz and a source level of 218 to 228 dB re: 1 μPa (peak-to-peak) (Au 1993) and 3.4 to 14.5 kHz at 125 to 173 dB re 1 μPa (peak-to-peak) (Ketten 1998). Whistles are primarily associated with communication and can serve to identify specific individuals (i.e., signature whistles) (Caldwell and Caldwell 1965; Janik et al., 2006). Cook et al. (2004) classified up to 52 percent of whistles produced by bottlenose dolphin groups with mother-calf pairs as signature whistles. Sound production is also influenced by group type (single or multiple individuals), habitat, and behavior (Nowacek 2005). Bray calls (low-frequency vocalizations; majority of energy below 4 kHz), for example, are used when capturing fish, specifically sea trout (Salmo trutta) and Atlantic salmon (Salmo salar), in some regions (i.e., Moray Firth, Scotland) (Janik 2000). Additionally, whistle production has been observed to increase while feeding (Acevedo-Gutiérrez and Stienessen 2004; Cook et al., 2004).

    Atlantic Spotted Dolphin Vocalization and Hearing

    Researchers have recorded a variety of sounds including whistles, echolocation clicks, squawks, barks, growls, and chirps for the Atlantic spotted dolphin. Whistles have dominant frequencies below 20 kHz (range: 7.1 to 14.5 kHz) but multiple harmonics extend above 100 kHz, while burst pulses consist of frequencies above 20 kHz (dominant frequency of approximately 40 kHz) (Lammers et al., 2003). Other sounds, such as squawks, barks, growls, and chirps, typically range in frequency from 0.1 to 8 kHz (Thomson and Richardson 1995). Recorded echolocation clicks had two dominant frequency ranges at 40 to 50 kHz and 110 to 130 kHz, depending on source level (i.e., lower source levels typically correspond to lower frequencies and higher frequencies to higher source levels (Au and Herzing 2003). Echolocation click source levels as high as 210 dB re 1 μPa-m peak-to-peak have been recorded (Au and Herzing 2003). Spotted dolphins in the Bahamas were frequently recorded during agonistic/aggressive interactions with bottlenose dolphins (and their own species) to produce squawks (0.2 to 12 kHz broad band burst pulses; males and females), screams (5.8 to 9.4 kHz whistles; males only), barks (0.2 to 20 kHz burst pulses; males only), and synchronized squawks (0.1-15 kHz burst pulses; males only in a coordinated group) (Herzing 1996). The hearing ability for the Atlantic spotted dolphin is unknown; however, odontocetes are generally adapted to hear high-frequencies (Ketten 1997).

    The Maritime WSEP training exercises proposed for the incidental take of marine mammals have the potential to take marine mammals by exposing them to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water. Exposure to energy, pressure, or direct strike by ordnance has the potential to result in non-lethal injury (Level A harassment), disturbance (Level B harassment), serious injury, and/or mortality. In addition, NMFS also considered the potential for harassment from vessel and aircraft operations.

    Acoustic Effects, Underwater Detonations

    Underwater explosive detonations send a shock wave and sound energy through the water and can release gaseous by-products, create an oscillating bubble, or cause a plume of water to shoot up from the water surface. The shock wave and accompanying noise are of most concern to marine animals. Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can be injured, killed, suffer non-lethal physical effects, experience hearing related effects with or without behavioral responses, or exhibit temporary behavioral responses or tolerance from hearing the blast sound. Generally, exposures to higher levels of impulse and pressure levels would result in greater impacts to an individual animal.

    The effects of underwater detonations on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the sound; the depth of the water column; the substrate of the habitat; the standoff distance between activities and the animal; and the sound propagation properties of the environment. Thus, we expect impacts to marine mammals from MaritimeWSEP activities to result primarily from acoustic pathways. As such, the degree of the effect relates to the received level and duration of the sound exposure, as influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be.

    The potential effects of underwater detonations from the proposed Maritime WSEP training activities may include one or more of the following: Temporary or permanent hearing impairment; non-auditory physical or physiological effects; behavioral disturbance; and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). However, the effects of noise on marine mammals are highly variable, often depending on species and contextual factors (based on Richardson et al., 1995).

    In the absence of mitigation, impacts to marine species could result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulsive sounds on marine mammals. Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects

    Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Marine mammals depend on acoustic cues for vital biological functions, (e.g., orientation, communication, finding prey, avoiding predators) thus, TTS may result in reduced fitness in survival and reproduction. However, this depends on the frequency and duration of TTS, as well as the biological context in which it occurs. TTS of limited duration, occurring in a frequency range that does not coincide with that used for recognition of important acoustic cues, would have little to no effect on an animal's fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS constitutes injury, but TTS does not (Southall et al., 2007). The following subsections provide a summary on the possibilities of TTS, PTS, and non-auditory physical effects.

    Temporary Threshold Shift

    TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter 1985). While experiencing TTS, the hearing threshold rises, and a sound must be stronger in order to be heard. In terrestrial mammals, TTS can last from minutes or hours to days (in cases of strong TTS). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals. According to Finneran and Jenkins (2012) the TTS onset thresholds for mid-frequency cetaceans are based on TTS data from a beluga whale exposed to an underwater impulse produced from a seismic watergun. TTS thresholds also use a dual criterion, and in a given analysis the more conservative of the two criteria is applied. The TTS thresholds for bottlenose and Atlantic spotted dolphins consist of the SEL of an underwater blast weighted to the hearing sensitivity of mid-frequency cetaceans and a peak SPL measure of the same. The dual thresholds for TTS in mid-frequency cetaceans are:

    • SEP (mid-frequency weighted) of 170 dB re 1 μPa2s

    • Peak SPL (unweighted) of 224 dB re 1 μPa

    Permanent Threshold Shift

    When PTS occurs, there is physical damage to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter 1985). There is no specific evidence that exposure to pulses of sound can cause PTS in any marine mammal. However, given the possibility that mammals close to a sound source might incur TTS, there has been further speculation about the possibility that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage, but repeated or (in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.

    Relationships between TTS and PTS thresholds have not been studied in marine mammals, but they are assumed to be similar to those in humans and other terrestrial mammals. PTS might occur at a received sound level at least several dB above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. There is no empirical data for onset of PTS in any marine mammal for ethical reasons and researchers must extrapolate PTS-onset based on hearing loss growth rates (i.e., rate of how quickly threshold shifts grow in relation to increases in decibel level; expressed in dB of TTS/dB of noise) from limited marine mammal TTS studies and more numerous terrestrial mammal TTS/PTS experiments. Typically, the magnitude of a threshold shift increases with increasing duration or level of exposure, until it becomes asymptotic (growth rate begins to level or the upper limit of TTS; Mills et al., 1979; Clark et al., 1987; Laroche et al., 1989; Yost 2007). Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds is at least six dB higher than the TTS threshold on a peak-pressure basis and probably greater than six dB (Southall et al., 2007). Jenkins and Finneran (2012) define PTS thresholds differently for three groups of cetaceans based on their hearing sensitivity: Low-frequency, mid-frequency; and high frequency. Bottlenose and Atlantic spotted dolphins (the subject of the Maritime WSEP acoustic impact analysis) both fall within the mid-frequency hearing category. The PTS thresholds use a dual criterion, one based on SEL and one based on SPL of an underwater blast. For a given analysis, the more conservative of the two is applied to afford the most protection to marine mammals. The mid-frequency cetacean criteria for PTS are:

    • SEL(mid-frequency weighted) of 185 dB re 1 μPa2s.

    • Peak SPL (unweighted) of 230 dB re 1 μPa.

    Non-Auditory Physiological Effects

    Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). While Eglin AFB's activities involve the use of explosives that are associated with these types of effects, severe injury to marine mammals is not anticipated from these activities.

    Adverse Stress Responses

    An acoustic source is considered a potential stressor if, by its action on the animal, via auditory or non-auditory means, it may produce a stress response in the animal. Here, the stress response will refer to an increase in energetic expenditure that results from exposure to the stressor and which is predominantly characterized by either the stimulation of the sympathetic nervous system (SNS) or the hypothalamic-pituitary-adrenal (HPA) axis (Reeder and Kramer 2005). The SNS response to a stressor is immediate and acute and occurs by the release of the catecholamine neurohormones norepinephrine and epinephrine (i.e., adrenaline). These hormones produce elevations in the heart and respiration rate, increase awareness, and increase the availability of glucose and lipids for energy. The HPA response results in increases in the secretion of the glucocorticoid steroid hormones, predominantly cortisol in mammals. The presence and magnitude of a stress response in an animal depends on a number of factors. These include the animal's life history stage (e.g., neonate, juvenile, adult), the environmental conditions, reproductive or developmental state, and experience with the stressor. Not only will these factors be subject to individual variation, but they will also vary within an individual over time. The stress response may or may not result in a behavioral change, depending on the characteristics of the exposed animal. However, provided that a stress response occurs, we assume that some contribution is made to the animal's allostatic load. One can assume that any immediate effect of exposure that produces an injury also produce a stress response and contribute to the allostatic load. Allostasis is the ability of an animal to maintain stability through change by adjusting its physiology in response to both predictable and unpredictable events (McEwen and Wingfield 2003). If the animal does not perceive the sound, the acoustic source would not produce tissue effects and does not produce a stress response by any other means. Thus, we expect that the exposure does not contribute to the allostatic load.

    Serious Injury/Mortality

    Elgin AFB proposes to use several types of explosive sources during its training exercises. Proposed detonations could be either in air, at the water surface, or underwater, depending on the mission and type of munition. Airburst detonations have little transfer of energy underwater, but surface and underwater detonations are of most concern regarding potential effects to marine mammals. The underwater explosions from these weapons would send a shock wave and blast noise through the water, release gaseous by-products, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. The shock wave and blast noise are of most concern to marine animals. In general, potential impacts from explosive detonations can range from brief effects (such as short term behavioral disturbance), tactile perception, physical discomfort, slight injury of the internal organs, and death of the animal (Yelverton et al., 1973; O'Keeffe and Young 1984; DoN 2001). The effects of an underwater explosion on a marine mammal depend on many factors, including: the size, type, and depth of both the animal and the explosive charge; the depth of the water column; and the standoff distance between the charge and the animal, as well as the sound propagation properties of the environment. Physical damage of tissues resulting from a shock wave (from an explosive detonation) constitutes an injury. Blast effects are greatest at the gas-liquid interface (Landsberg 2000) and gas containing organs, particularly the lungs and gastrointestinal tract, are especially susceptible to damage (Goertner 1982; Hill 1978; Yelverton et al., 1973). Nasal sacs, larynx, pharynx, trachea, and lungs may be damaged by compression/expansion caused by the oscillations of the blast gas bubble (Reidenberg and Laitman 2003). Severe damage (from the shock wave) to the ears can include tympanic membrane rupture, fracture of the ossicles, cochlear damage, hemorrhage, and cerebrospinal fluid leakage into the middle ear.

    Non-lethal injury includes slight injury to internal organs and the auditory system, however, delayed lethality can be a result of individual or cumulative sublethal injuries (DoN, 2001). Immediate lethal injury would be a result of massive combined trauma to internal organs as a direct result of proximity to the point of detonation (DoN 2001).

    Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement, or abandonment of habitat. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007). Behavioral reactions can vary among individuals as well as within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012). Behavioral reactions can also vary depending on the characteristics associated with the sound source (e.g., whether it is moving or stationary, the number of sources, etc).

    Tolerance

    Studies on marine mammals' tolerance to sound in the natural environment are relatively rare. Richardson et al. (1995) defined tolerance as the occurrence of marine mammals in areas where they are exposed to human activities or manmade noise. In many cases, tolerance develops by the animal habituating to the stimulus (i.e., the gradual waning of responses to a repeated or ongoing stimulus) (Richardson, et al., 1995; Wartzok et al., 2003), but because of ecological or physiological requirements, many marine animals may need to remain in areas where they are exposed to chronic stimuli (Richardson, et al., 1995). Animals are most likely to habituate to sounds that are predictable and unvarying.

    The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).

    Numerous studies have shown that underwater sounds are often readily detectable by marine mammals in the water at distances of many kilometers. However, other studies have shown that marine mammals at distances more than a few kilometers away often show no apparent response to activities of various types (Miller et al., 2005). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to underwater sound from impulsive sources such as airguns, at other times, mammals of all three types have shown no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; Madsen and Mohl, 2000; Croll et al., 2001; Jacobs and Terhune 2002; Madsen et al., 2002; MacLean and Koski, 2005; Miller et al., 2005; Bain and Williams 2006).

    Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic guns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 2007).

    Because the few available studies show wide variation in response to underwater sound, it is difficult to quantify exactly how sound from the Maritime WSEP operational testing would affect marine mammals. It is likely that the onset of underwater detonations could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); or avoidance of areas where sound sources are located.

    The biological significance of any of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However generally, one could expect the consequences of behavioral modification to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Drastic changes in diving/surfacing patterns (such as those thought to cause beaked whale stranding due to exposure to military mid-frequency tactical sonar);

    • Habitat abandonment due to loss of desirable acoustic environment; and

    • Cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007). However, Finneran and Schlundt (2004) and Schlundt et al., 2000 reported on observations of behavioral reactions in captive dolphins and belugas to pure tones (different type of noise than that produced from an underwater detonation). The behavioral impacts threshold for mid-frequency cetaceans exposed to multiple, successive detonations is 165 dB re 1 µPa2s SEL (mid-frequency weighted).

    Auditory Masking

    Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound interferes with by another coincident sound at similar frequencies and at similar or higher levels (Clark et al., 2009). Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals for other purposes such as navigation. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction. If the coincident (masking) sound were man-made, it could be potentially harassing if it disrupted hearing-related behavior. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Introduced underwater sound may, through masking, more specifically reduce the effective communication distance of a marine mammal species if the frequency of the source is close to that used as a signal by the marine mammal, and if the anthropogenic sound is present for a significant fraction of the time (Richardson et al., 1995). Marine mammals are thought to be able to compensate for communication masking by adjusting their acoustic behavior through shifting call frequencies, increasing call volume, and increasing vocalization rates. For example in one study, blue whales increased call rates when exposed to noise from seismic surveys in the St. Lawrence Estuary (Di Iorio and Clark 2010). Other studies reported that some North Atlantic right whales exposed to high shipping noise increased call frequency (Parks et al., 2007) and some humpback whales responded to low-frequency active sonar playbacks by increasing song length (Miller et al., 2000). Additionally, beluga whales change their vocalizations in the presence of high background noise possibly to avoid masking calls (Au et al., 1985; Lesage et al., 1999; Scheifele et al., 2005).

    While it may occur temporarily, we do not expect auditory masking to result in detrimental impacts to an individual's or population's survival, fitness, or reproductive success. Dolphin movement is not restricted within the W-151A test area, allowing for movement out of the area to avoid masking impacts and the sound resulting from the underwater detonations is short in duration. Also, masking is typically of greater concern for those marine mammals that utilize low frequency communications, such as baleen whales and, as such, is not likely to occur for marine mammals in the W-151A test area.

    Vessel and Aircraft Presence

    The marine mammals most vulnerable to vessel strikes are slow-moving and/or spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., North Atlantic right whales (Eubalaena glacialis), fin whales (Balaenoptera physalus), and sperm whales). Smaller marine mammals such as common bottlenose and Atlantic spotted dolphins (the species anticipated to occur in the area of Eglin AFB's activities) are agile and move more quickly through the water, making them less susceptible to ship strikes. NMFS and Eglin AFB are not aware of any vessel strikes of common bottlenose and Atlantic spotted dolphins within in W-151 during training operations and both parties do not anticipate that Eglin AFB vessels engaged in the specified activity would strike any marine mammals.

    Dolphins within the Gulf of Mexico are continually exposed to recreational, commercial, and military vessels. Behaviorally, marine mammals may or may not respond to the operation of vessels and associated noise. Responses to vessels vary widely among marine mammals in general, but also among different species of small cetaceans. Responses may include attraction to the vessel (Richardson et al., 1995); altering travel patterns to avoid vessels (Constantine 2001; Nowacek et al., 2001; Lusseau 2003, 2006); relocating to other areas (Allen and Read, 2000); cessation of feeding, resting, and social interaction (Baker et al., 1983; Bauer and Herman 1986; Hall 1982; Krieger and Wing 1984; Lusseau 2003; Constantine et al., 2004); abandoning feeding, resting, and nursing areas (Jurasz and Jurasz 1979; Dean et al., 1985; Glockner-Ferrari and Ferrari 1985, 1990; Lusseau 2005; Norris et al., 1985; Salden 1988; Forest 2001; Morton and Symonds 2002; Courbis 2004; Bejder 2006); stress (Romano et al., 2004); and changes in acoustic behavior (Van Parijs and Corkeron 2001). However, in some studies marine mammals display no reaction to vessels (Watkins 1986; Nowacek et al., 2003) and many odontocetes show considerable tolerance to vessel traffic (Richardson et al., 1995). Dolphins may actually reduce the energetic cost of traveling by riding the bow or stern waves of vessels (Williams et al., 1992; Richardson et al., 1995).

    Aircraft produce noise at frequencies that are well within the frequency range of cetacean hearing and also produce visual signals such as the aircraft itself and its shadow (Richardson et al., 1995, Richardson and Wursig 1997). A major difference between aircraft noise and noise caused by other anthropogenic sources is that the sound is generated in the air, transmitted through the water surface and then propagates underwater to the receiver, diminishing the received levels significantly below what is heard above the water's surface. Sound transmission from air to water is greatest in a sound cone 26 degrees directly under the aircraft.

    There are fewer reports of reactions of odontocetes to aircraft than those of pinnipeds. Responses to aircraft include diving, slapping the water with pectoral fins or tail fluke, or swimming away from the track of the aircraft (Richardson et al., 1995). The nature and degree of the response, or the lack thereof, are dependent upon the nature of the flight (e.g., type of aircraft, altitude, straight vs. circular flight pattern). Wursig et al. (1998) assessed the responses of cetaceans to aerial surveys in the north central and western Gulf of Mexico using a DeHavilland Twin Otter fixed-wing airplane. The plane flew at an altitude of 229 m (751.3 ft) at 204 km/hr (126.7 mph) and maintained a minimum of 305 m (1,000 ft) straight line distance from the cetaceans. Water depth was 100 to 1,000 m (328 to 3,281 ft). Bottlenose dolphins most commonly responded by diving (48 percent), while 14 percent responded by moving away. Other species (e.g., beluga (Delphinapterus leucas) and sperm whales) show considerable variation in reactions to aircraft but diving or swimming away from the aircraft are the most common reactions to low flights (less than 500 m; 1,640 ft).

    Direct Strike by Ordnance

    Another potential risk to marine mammals is direct strike by ordnance, in which the ordnance physically hits an animal. While strike from an item falling through the water column is possible, the potential risk of a direct hit to an animal within the target area would be so low because objects sink slowly and most projectiles fired at targets usually hit those targets.

    Anticipated Effects on Habitat

    Detonations of live ordnance would result in temporary changes to the water environment. Munitions could hit the targets and not explode in the water. However, because the targets are located over the water, in water explosions could occur. An underwater explosion from these weapons could send a shock wave and blast noise through the water, release gaseous by-products, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. However, these effects would be temporary and not expected to last more than a few seconds.

    Similarly, Eglin AFB does not expect any long-term impacts with regard to hazardous constituents to occur. Eglin AFB considered the introduction of fuel, debris, ordnance, and chemical materials into the water column within its EA and determined the potential effects of each to be insignificant. We summarize Eglin AFB's analyses in the following paragraphs (for a complete discussion of potential effects, please refer to section 3.3 in Eglin AFB's EA).

    Metals typically used to construct bombs, missiles, and gunnery rounds include copper, aluminum, steel, and lead, among others. Aluminum is also present in some explosive materials. These materials would settle to the seafloor after munitions detonate. Metal ions would slowly leach into the substrate and the water column, causing elevated concentrations in a small area around the munitions fragments. Some of the metals, such as aluminum, occur naturally in the ocean at varying concentrations and would not necessarily impact the substrate or water column. Other metals, such as lead, could cause toxicity in microbial communities in the substrate. However, such effects would be localized to a very small distance around munitions fragments and would not significantly affect the overall habitat quality of sediments in the northeastern Gulf of Mexico. In addition, metal fragments would corrode, degrade, and become encrusted over time.

    Chemical materials include explosive byproducts and also fuel, oil, and other fluids associated with remotely controlled target boats. Explosive byproducts would be introduced into the water column through detonation of live munitions. Explosive materials would include 2,4,6-trinitrotoluene (TNT) and Research Department Formula X (RDX), among others. Various byproducts are produced during and immediately after detonation of TNT and RDX. During the very brief time that a detonation is in progress, intermediate products may include carbon ions, nitrogen ions, oxygen ions, water, hydrogen cyanide, carbon monoxide, nitrogen gas, nitrous oxide, cyanic acid, and carbon dioxide (Becker 1995). However, reactions quickly occur between the intermediates, and the final products consist mainly of water, carbon monoxide, carbon dioxide, and nitrogen gas, although small amounts of other compounds are typically produced as well.

    Chemicals introduced into the water column would be quickly dispersed by waves, currents, and tidal action, and eventually become uniformly distributed. A portion of the carbon compounds such as carbon monoxide and carbon dioxide would likely become integrated into the carbonate system (alkalinity and pH buffering capacity of seawater). Some of the nitrogen and carbon compounds, including petroleum products, would be metabolized or assimilated by phytoplankton and bacteria. Most of the gas products that do not react with the water or become assimilated by organisms would be released into the atmosphere. Due to dilution, mixing, and transformation, none of these chemicals are expected to have significant impacts on the marine environment.

    Explosive material that is not consumed in a detonation could sink to the substrate and bind to sediments. However, the quantity of such materials is expected to be inconsequential. When munitions function properly, nearly full combustion of the explosive materials will occur, and only extremely small amounts of raw material will remain. In addition, any remaining materials would be naturally degraded. TNT decomposes when exposed to sunlight (ultraviolet radiation), and is also degraded by microbial activity (Becker, 1995). Several types of microorganisms have been shown to metabolize TNT. Similarly, RDX decomposes by hydrolysis, ultraviolet radiation exposure, and biodegradation.

    While we anticipate that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat and prey resources would be temporary and reversible. The main impact associated with the proposed activity would be temporarily elevated noise levels and the associated direct effects on marine mammals, previously discussed in this notice. Marine mammals are anticipated to temporarily vacate the area of live fire events. However, these events usually do not last more than 90 to 120 minutes at a time, and animals are anticipated to return to the activity area during periods of non-activity. Thus, based on the preceding discussion, we do not anticipate that the proposed activity would have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations.

    Proposed Mitigation

    In order to issue an Authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses (where relevant).

    The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    NMFS and Eglin AFB have worked to identify potential practicable and effective mitigation measures, which include a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity.” We refer the reader to Section 11 of Eglin AFB's application for more detailed information on the proposed mitigation measures which include the following:

    Vessel-Based Monitoring

    Eglin AFB would station a large number of range clearing boats (approximately 30 to 35) around the test site to prevent non-participating vessels from entering the human safety zone. Based on the composite footprint, range clearing boats will be located approximately 15.28 km (9.5 mi) from the detonation point (see Figure 11-1 in Eglin AFB's application). However, the actual distance will vary based on the size of the munition being deployed.

    Trained protected species observers (PSO) would be aboard five of these boats and will conduct protected species surveys before and after each test. The protected species survey vessels will be dedicated solely to observing for marine species during the pre-mission surveys while the remaining safety boats clear the area of non-authorized vessels. The protected species survey vessels will begin surveying the area at sunrise. The area to be surveyed will encompass the zone of influence (ZOI), which is discussed in more detail below.

    Because of human safety issues, observers will be required to leave the test area at least 30 minutes in advance of live weapon deployment and move to a position on the safety zone periphery, approximately 15.28 km (9.5 mi) from the detonation point. Observers will continue to scan for marine mammals from the periphery. Animals that may enter the area after Eglin AFB has completed the pre-mission surveys and prior to detonation would not reach the predicted smaller slight lung injury and/or mortality zones.

    Determination of the Zone of Influence

    Historically, Eglin AFB has conservatively used the number of live weapons deployed to estimate take of marine mammals. This method assumed a fresh population of marine mammals for each detonation to calculate the number taken. However, NMFS requested mission-day scenarios in order to be able to model accumulated energy. Therefore, each mission-day scenario is considered a separate event to model takes as opposed to modeling for each live detonation. Eglin developed three mission-day categories (Category A, which represents levels of activities considered a worst-case scenario consisting of ordnances with large explosive weights as well as surface and subsurface detonations; Category B, which represents a `typical' mission day based on levels of weapons releases during past Maritime WSEP activities; and Category C, which represents munitions with smaller explosive weights and surface detonations only), and estimated the number of days each category would be executed during the 2017 Maritime WSEP missions (See Table 1-3 in Eglin AFB's application for the Mission Day Scenarios). Table 4 below provides the categorization of mission days (Table 1-3 in Eglin AFB's application), and Table 5 provides the maximum range of effects for all criteria and thresholds for mission-day Categories A, B, and C. These ranges were calculated based on explosive acoustic characteristics, sound propagation, and sound transmission loss in the study area (which incorporates water depth, sediment type, wind speed, bathymetry, and temperature/salinity profiles). Refer to Appendix A of Eglin AFB's application for a complete description of the acoustic modeling methodology used in the analysis.

    Table 4—Live Munitions Categorized as Representative Mission Days Mission
  • category
  • Munition NEW (lbs) Detonation type Munitions/day Mission days/year Total
  • munitions/
  • year
  • A GBU-10/-24/-31 945 Subsurface (10′ depth) 1 2 2 GBU-49 500 Surface 2 4 JASSM 255 Surface 2 4 GBU-12 (PWII)/-54 (LJDAM)/-38/-32 (JDAM) 192 Subsurface (10′ depth) 3 6 B AGM-65 (Maverick) 86 Surface 2 4 8 CBU-105 (WCMD) 83 Airburst 1 4 GBU-39 (Small Diameter Bomb) 37 Surface 1 4 AGM-114 (Hellfire) 20 Subsurface (10' depth) 5 20 C AGM-176 (Griffin) 13 Surface 5 2 10 2.75 rockets or AGR-20A/B 12 Surface 50 100 AIM-9X 7.9 Surface 1 2 PGU-12 HEI 30 mm 0.1 Surface 500 1,000
    Table 5—Criteria and Threshold Radii (in Meters) for Maritime WSEP Mission-Day Categories Mission-day category Level A harassment PTS 185 dB SEL Level B harassment ITS Behavioral 170 dB SEP 165 dB SEL A 945 m 4,666 m 7,479 m. B 248 m 2,225 m 3,959 m. C 286 m 1,128 m 1,863 m.

    Mortality and slight lung injury threshold ranges would extend from 47 to 216 m and 84 to 595 m, respectively, depending on the mission-day category. These ranges would fall within the Level A harassment ranges. Based on the planned activities on a given mission day, and the ranges presented in Table 4, Eglin AFB would ensure that the area equating to the Level A harassment threshold range is free of protected species. By clearing the Level A harassment threshold range of protected species, animals that may enter the area after the completed pre-mission surveys but prior to detonation would not reach the smaller slight lung injury or mortality zones. Because of human safety issues, Eglin AFB would require observers to leave the test area at least 30 minutes in advance of live weapon deployment and move to a position on the safety zone periphery, approximately 15 km (9.5 mi) from the detonation point. Observers would continue to scan for marine mammals from the periphery, but effectiveness would be limited as the boat would remain at a designated station.

    Video Monitoring: In addition to vessel-based monitoring, Eglin AFB would position three high-definition video cameras on the GRATV anchored on-site, as described earlier, to allow for real-time monitoring for the duration of the mission. The camera configuration and actual number of cameras used would depend on specific mission requirements. In addition to monitoring the area for mission objective issues, the camera(s) would also monitor for the presence of protected species. A trained marine species observer from Eglin Natural Resources would be located in Eglin AFB's Central Control Facility, along with mission personnel, to view the video feed before and during test activities. The distance to which objects can be detected at the water surface by use of the cameras is considered generally comparable to that of the human eye.

    The GRATV will be located about 183 m (600 ft) from the target. The larger mortality threshold ranges correspond to the modified Goertner model adjusted for the weight of an Atlantic spotted dolphin calf, and extend from 0 to 216 m (0 to 709 ft) from the target, depending on the ordnance, and the Level A ranges for both common bottlenose and Atlantic spotted dolphins extend up to 945 m (3,100 ft) from the target, depending on the ordnance and harassment criterion. Given these distances, observers could reasonably be expected to view a substantial portion of the mortality zone in front of the camera, although a small portion would be behind or to the side of the camera view. Based on previous monitoring reports for this activity, the pre-training surveys for delphinids and other protected species within the mission area are effective. Observers can view some portion of the Level A harassment zone, although the view window would be less than that of the mortality zone (a large percentage would be behind or to the side of the camera view).

    In addition to the two types of visual monitoring discussed earlier in this section, Eglin AFB personnel are present within the mission area (on boats and the GRATV) on each day of testing well in advance of weapon deployment, typically near sunrise. They will perform a variety of tasks including target preparation, equipment checks, etc., and will opportunistically observe for marine mammals and indicators as feasible throughout test preparation. However, we consider these observations as supplemental to the proposed mitigation monitoring and would only occur as time and schedule permits. Eglin AFB personnel would relay information on these types of sightings to the Lead Biologist, as described in the following mitigation sections.

    Pre-Mission Monitoring

    The purposes of pre-mission monitoring are to: (1) Evaluate the mission site for environmental suitability, and (2) verify that the ZOI is free of visually detectable marine mammals, as well as potential indicators of these species. On the morning of the mission, the Test Director and Safety Officer will confirm that there are no issues that would preclude mission execution and that weather is adequate to support mitigation measures.

    Sunrise or Two Hours Prior to Mission

    Eglin AFB range clearing vessels and protected species survey vessels will be on site at least two hours prior to the mission. The Lead Biologist on board one survey vessel will assess the overall suitability of the mission site based on environmental conditions (sea state) and presence/absence of marine mammal indicators. Eglin AFB personnel will communicate this information to Tower Control and personnel will relay the information to the Safety Officer in Central Control Facility.

    One and One-Half Hours Prior to Mission

    Vessel-based surveys will begin approximately one and one-half hours prior to live weapons deployment. Surface vessel observers will survey the ZOI and relay all marine species and indicator sightings, including the time of sighting, GPS location, and direction of travel, if known, to the Lead Biologist. The Lead Biologist will document all sighting information on report forms which he/she will submit to Eglin Natural Resources after each mission. Surveys would continue for approximately one hour. During this time, Eglin AFB personnel in the mission area will also observe for marine species as feasible. If marine mammals or indicators are observed within the ZOI for that day's mission activities, the range will be declared “fouled,” a term that signifies to mission personnel that conditions are such that a live ordnance drop cannot occur (e.g., protected species or civilian vessels are in the mission area). If there are no observations of marine mammals or indicators of marine mammals, Eglin AFB would declare the range clear of protected species.

    One-Half Hour Prior to Mission

    At approximately 30 minutes prior to live weapon deployment, marine species observers will be instructed to leave the mission site and remain outside the safety zone, which on average will be 15.28 km (9.5 mi) from the detonation point. The actual size is determined by weapon net explosive weight and method of delivery. The survey team will continue to monitor for protected species while leaving the area. As the survey vessels leave the area, marine species monitoring of the immediate target areas will continue at the Central Control Facility through the live video feed received from the high definition cameras on the GRATV. Once the survey vessels have arrived at the perimeter of the safety zone (approximately 30 minutes after leaving the area per instructions from Eglin AFB, depending on actual travel time), Eglin AFB will declare the range as “green” and the mission will proceed, assuming all non-participating vessels have left the safety zone as well.

    Execution of Mission

    Immediately prior to live weapons drop, the Test Director and Safety Officer will communicate to confirm the results of marine mammal surveys and the appropriateness of proceeding with the mission. The Safety Officer will have final authority to proceed with, postpone, or cancel the mission. Eglin AFB would postpone the mission if:

    • Any of the high-definition video cameras are not operational for any reason;

    • Any marine mammal is visually detected within the ZOI. Postponement would continue until the animal(s) that caused the postponement is: (1) Confirmed to be outside of the ZOI on a heading away from the targets; or (2) not seen again for 30 minutes and presumed to be outside the ZOI due to the animal swimming out of the range;

    • Any large schools of fish or large flocks of birds feeding at the surface are within the ZOI. Postponement would continue until Eglin AFB personnel confirm that these potential indicators are outside the ZOI:

    • Any technical or mechanical issues related to the aircraft or target boats; or

    • Any non-participating vessel enters the human safety zone prior to weapon release.

    In the event of a postponement, protected species monitoring would continue from the Central Control Facility through the live video feed. Observers would also continue to monitor from the vessels at the safety perimeter, with limited effectiveness due to the distance from the detonation site.

    Post-Mission Monitoring

    Post-mission monitoring determines the effectiveness of pre-mission mitigation by reporting sightings of any marine mammals. Post-detonation monitoring surveys will commence once the mission has ended or, if required, as soon as personnel declare the mission area safe. Vessels will move into the survey area from outside the safety zone and monitor for at least 30 minutes, concentrating on the area down-current of the test site. This area is easily identifiable because of the floating debris in the water from impacted targets. Up to 10 Eglin AFB support vessels will be cleaning debris and collecting damaged targets from this area thus spending several hours in the area once Eglin AFB completes the mission. Observers will document and report any marine mammal species, number, location, and behavior of any animals observed to Eglin Natural Resources.

    Mission Delays Due to Weather

    Eglin AFB would delay or reschedule Maritime WSEP missions if the Beaufort sea state is greater than number 4 at the time of the testing activities. The Lead Biologist aboard one of the survey vessels will make the final determination of whether conditions are conducive for sighting protected species or not.

    We have carefully evaluated Eglin AFB's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts;

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal);

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only);

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to stimuli that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only);

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to training exercises that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only);

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time; and

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of Eglin AFB's proposed measures, as well as other measures that may be relevant to the specified activity, we have preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance (while also considering personnel safety, practicality of implementation, and the impact of effectiveness of the military readiness activity).

    Proposed Monitoring and Reporting

    In order to issue an Authorization for an activity, section 101(a)(5)(D) of the MMPA states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for an authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the proposed action area.

    Eglin AFB submitted a marine mammal monitoring plan in their Authorization application. We may modify or supplement the plan based on comments or new information received from the public during the public comment period. Any monitoring requirement we prescribe should improve our understanding of one or more of the following:

    • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) Affected species (e.g., life history, dive patterns); (3) Co-occurrence of marine mammal species with the action; or (4) Biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological);

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock;

    • Effects on marine mammal habitat and resultant impacts to marine mammals; and

    • Mitigation and monitoring effectiveness.

    NMFS proposes to include the following measures in the Maritime WSEP Authorization (if issued). They are:

    (1) Eglin AFB will track the use of the EGTTR for test firing missions and protected species observations, through the use of mission reporting forms;

    (2) Eglin AFB will submit a summary report of marine mammal observations and Maritime WSEP activities to the NMFS Southeast Regional Office (SERO) and the Office of Protected Resources 90 days after expiration of the current Authorization. This report must include the following information: (i) Date and time of each Maritime WSEP exercise; (ii) a complete description of the pre-exercise and post-exercise activities related to mitigating and monitoring the effects of Maritime WSEP exercises on marine mammal populations; and (iii) results of the Maritime WSEP exercise monitoring, including number of marine mammals (by species) that may have been harassed due to presence within the activity zone;

    (3) Eglin AFB will monitor for marine mammals in the proposed action area. If Eglin AFB personnel observe or detect any dead or injured marine mammals prior to testing, or detects any injured or dead marine mammal during live fire exercises, Eglin AFB must cease operations and submit a report to NMFS within 24 hours and

    (4) Eglin AFB must immediately report any unauthorized takes of marine mammals (i.e., serious injury or mortality) to NMFS and to the respective Southeast Region stranding network representative. Eglin AFB must cease operations and submit a report to NMFS within 24 hours.

    Monitoring Results From Previously Authorized Activities

    Eglin AFB complied with the mitigation and monitoring required under the previous Authorization for 2016 WSEP activities. Marine mammal monitoring occurred before, during, and after each Maritime WSEP mission. During the course of these activities, Eglin AFB's monitoring did not suggest that they had exceeded the take levels authorized under Authorization. In accordance with the 2015 Authorization, Eglin AFB submitted a monitoring report (available at: www.nmfs.noaa.gov/pr/permits/incidental/military.htm).

    Under the 2016 Authorization, Eglin AFB anticipated conducting Maritime WSEP training missions over approximately two to three weeks, but actually conducted a total of five mission days: February 11 and March 14-17 associated with live ordnance delivery. Due to weather conditions and high sea states, no live missions were conducted February 8-10. Munitions that were actually dropped accounted for only approximately 41 percent of what was authorized in the 2016 IHA.

    During the February 2016 mission, Eglin AFB released one AGM-65 Maverick. The AGM-65 Maverick is a penetrating blast-fragment warhead that detonates at the surface, and has 86 lb NEW. Eglin AFB conducted the required monitoring for marine mammals or indicators of marine mammals (e.g., flocks of birds, baitfish schools, or large fish schools) before, during, and after each mission and observed a mixture of six bottlenose and spotted dolphins approximately seven miles outside of the largest ZOI, so no action was required. No protected species were observed within the ZOI during pre-mission surveys, mission activities, or during post-mission surveys. Therefore, the mission resulted in no acoustic impacts to marine mammals.

    During the March 2016 live fire missions, Eglin AFB expended two AGM-65 Mavericks and twelve AGM-114 Hellfire missiles. The NEW of the munitions that detonated at the water surface or up to 3 m (10 ft) below the surface are 86 lb for the AGM-65 Maverick missiles and 13 lb for the AGM-114 Hellfire missiles. Eglin AFB conducted the required monitoring for marine mammals or indicators of marine mammals (e.g., flocks of birds, baitfish schools, or large fish schools) before, during, and after each mission and observed two species of marine mammals: the common bottlenose dolphin and Atlantic spotted dolphin; one sea turtle; and two flocks of approximately 10-20 birds on two separate occasions (upon investigation, there was no evidence of protected species associated with either flock of birds). Eglin AFB confirmed that all protected species observed were outside of the ZOI at the conclusion of each pre-mission survey.

    After each mission, Eglin AFB re-entered the ZOI to begin post-mission surveys for marine mammals and debris-clean-up operations. Eglin AFB personnel did not observe reactions indicative of disturbance during the pre-mission surveys and did not observe any marine mammals during the post-mission surveys. In summary, Eglin AFB reports that no observable instances of take of marine mammals occurred incidental to the Maritime WSEP training activities under the 2016 Authorization.

    Estimated Numbers of Marine Mammals Taken by Harassment

    The definition of harassment as it applies to a “military readiness activity” is: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).

    NMFS' analysis identified the physiological responses, and behavioral responses that could potentially result from exposure to underwater explosive detonations. In this section, we will relate the potential effects to marine mammals from underwater detonation of explosives to the MMPA regulatory definitions of Level A and Level B harassment. This section will also quantify the effects that might occur from the proposed military readiness activities in W-151.

    At NMFS' recommendation, Eglin AFB updated the thresholds used for onset of temporary threshold shift (TTS; Level B Harassment) and onset of permanent threshold shift (PTS; Level A Harassment) to be consistent with the thresholds outlined in NMFS's new “Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing” (NMFS, 2016). NMFS believes that the thresholds outlined in the new Technical Guidance represent the best available science. The report is available on the internet at: http://www.nmfs.noaa.gov/pr/acoustics/Acoustic%20Guidance%20Files/opr-55_acoustic_guidance_tech_memo.pdf.

    Level B Harassment

    Of the potential effects described earlier in this document, the following are the types of effects that fall into the Level B harassment category:

    Behavioral Harassment

    Behavioral disturbance that rises to the level described in the above definition, when resulting from exposures to non-impulsive or impulsive sound, is Level B harassment. Some of the lower level physiological stress responses discussed earlier would also likely co-occur with the predicted harassments, although these responses are more difficult to detect and fewer data exist relating these responses to specific received levels of sound. When predicting Level B harassment based on estimated behavioral responses, those takes may have a stress-related physiological component.

    Temporary Threshold Shift (TTS)

    As discussed previously, TTS can affect how an animal behaves in response to the environment, including conspecifics, predators, and prey. NMFS classifies TTS (when resulting from exposure to explosives and other impulsive sources) as Level B harassment, not Level A harassment (injury).

    Level A Harassment

    Of the potential effects that were described earlier, the following are the types of effects that fall into the Level A Harassment category:

    Permanent Threshold Shift (PTS)

    PTS (resulting either from exposure to explosive detonations) is irreversible and NMFS considers this to be an injury.

    Table 6 in this document outlines the acoustic thresholds used by NMFS for this Authorization when addressing noise impacts from explosives.

    Table 6—Impulsive Sound Explosive Thresholds Used by Eglin AFB in its Current Acoustics Impacts Modeling Group Level B harassment Behavioral TTS Level A harassment PTS Gastro-intestinal tract Lung Mortality Mid-frequency Cetaceans 165 dB SEL 170 dB SEL 185 dB SEL 237 dB SPL 39.1 M1/3 (1+[DRm/10.081])1/2 Pa-sec
  • Where: M = mass of the animals in kg
  • DRm = depth of the receiver (animal) in meters
  • 91.4 M1/3 (1+DRm/10.081])1/2 Pa-sec
  • Where: M = mass of the animals in kg
  • DRm = depth of the receiver (animal) in meters.
  • TTS = temporary threshold shift; PTS = permanent threshold shift; dB = decibels; SEL = sound exposure level; SPL = sound pressure level.

    Table 7 provides the estimated maximum range or radius, from the detonation point to the various thresholds described in Tables 4-6 (Note: for PTS and TTS dual metrics, the more conservative metric was used).

    Table 7—Distances (m) to Harassment Thresholds From Eglin AFB's Explosive Ordnance Mission-day category Mortality Modified goertner model 1 Level A harassment Slight lung
  • injury
  • GI tract injury PTS Modified goertner model 2 237 dB SPL 185 dB SEL 230 dB Peak SPL Level B
  • Harassment
  • TTS Behavioral 170 dB SEL 224 dB SPL 165 dB SEL
    Bottlenose Dolphin A 193 534 180 945 705 4,666 1,302 7,479 B 110 180 156 248 180 2,225 180 3,959 C 37 73 83 286 169 1,128 180 1,863 Atlantic Spotted Dolphin A 216 595 180 945 705 4,666 1,302 7,479 B 136 180 156 248 180 2,225 180 3,959 C 47 84 83 286 169 1,128 180 1,863 dB = decibels; GI = gastrointestinal; SEP = sound exposure level; SPL = sound pressure level; PTS = permanent threshold shift; TTS = temporary threshold shift.

    The ranges presented above were used to calculate the ZOI for each criterion/threshold. To eliminate double counting of `takes', impact areas from higher impact categories (e.g., PTS) were subtracted from areas associated with lower impact categories (e.g., TTS). The estimated number of marine mammals potentially exposed to the various impact thresholds was calculated with a two-dimensional approach using the product of the adjusted impact area, animal density, and annual number of events for each mission-day category. A `take' is considered to occur for SEL metrics if the received level is equal to or above the associated threshold within the appropriate frequency band of the sound received, adjusted for the appropriate weighting function value of that frequency band. Similarly, a `take' would occur for impulse and peak SPL metrics if the received level is equal to or above the associated threshold.

    Density Estimation

    Density estimates for bottlenose dolphin and spotted dolphin were obtained from Duke University Marine Geospatial Ecology Lab Reports (Roberts et al., 2016). Raster data from Duke University were imported into ArcGIS and overlaid onto the Maritime WSEP mission area. Density values were provided in 100 km2 boxes. A 30-km by 30-km (900 km2) area centered on the Maritime WSEP mission location was selected, which consisted of nine 100-km2 blocks. Density values from those blocks were averaged and converted to number of animals per square kilometer to obtain average annual density estimates for the common bottlenose and Atlantic spotted dolphins used in this analysis (see Table 8 for the resultant densities for these species).

    Table 8—Marine Mammal Density Estimates Within Eglin AFB's EGTTR Species Density
  • (animals/km2)
  • Bottlenose dolphin 0.433 Atlantic spotted dolphin 0.148
    Take Estimation

    Table 9 indicates the modeled potential for lethality, injury, and non-injurious harassment (including behavioral harassment) to marine mammals in the absence of mitigation measures. Eglin AFB and NMFS estimate that approximately three marine mammals could be exposed to injurious Level A harassment noise levels (187 dB SEL) and approximately 326 animals could be exposed to Level B harassment (TTS and Behavioral) noise levels in the absence of mitigation measures.

    Table 9—Modeled Number of Marine Mammals Potentially Affected by Maritime WSEP Operations Species Mortality Level A
  • harassment
  • (PTS only)
  • Level B
  • harassment
  • (TTS)
  • Level B
  • harassment
  • (behavioral)
  • Bottlenose dolphin 0 2 87 157 Atlantic spotted dolphin 0 1 29 53 Total 0 3 116 210

    Based on the mortality exposure estimates calculated by the acoustic model and the anticipated effectiveness of mitigation measures, zero marine mammals are expected to be affected by pressure levels associated with mortality or serious injury. Zero marine mammals are expected to be exposed to pressure levels associated with slight lung injury or gastrointestinal tract injury.

    NMFS generally considers PTS to fall under the injury category (Level A Harassment). An animal would need to stay very close to the sound source for an extended amount of time to incur a serious degree of PTS, which could increase the probability of mortality. In this case, it would be highly unlikely for this scenario to unfold given the nature of any anticipated acoustic exposures that could potentially result from a mobile marine mammal that NMFS generally expects to exhibit avoidance behavior to loud sounds within the EGTTR. NMFS concludes that possibility of minor PTS in the form of slight upward shift of hearing threshold at certain frequency bands by a few individuals of marine mammals is extremely low, but not unlikely. The majority of `takes' resulting from Eglin AFB's WSEP activities would constitute Level B harassment, such as TTS and behavioral harassment.

    Negligible Impact Analysis and Preliminary Determinations

    NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (i.e., population-level effects). An estimate of the number of Level B harassment takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, we consider other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.

    To avoid repetition, the discussion below applies to each of the species for which we propose to authorize incidental take for Eglin AFB's activities, given that expected impacts are expected to be the same for both species.

    In making a negligible impact determination, we consider:

    • The number of anticipated injuries, serious injuries, or mortalities;

    • The number, nature, and intensity, and duration of Level B harassment;

    • The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);

    • The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);

    • Impacts on habitat affecting rates of recruitment/survival; and

    • The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.

    For reasons stated previously in this document and based on the following factors, Eglin AFB's specified activities are not likely to cause long-term behavioral disturbance, serious injury, or death.

    The takes from Level B harassment would be due to potential behavioral disturbance and TTS. The takes from Level A harassment would be due to some, likely lesser, degree of PTS. Activities would only occur over a timeframe of two to three weeks in beginning in February 2017, with one or two missions occurring per day. It is possible that some individuals may be taken more than once if those individuals are located in the exercise area on two different days when exercises are occurring.

    Noise-induced threshold shifts (TS, which includes PTS) are defined as increases in the threshold of audibility (i.e., the sound has to be louder to be detected) of the ear at a certain frequency or range of frequencies (ANSI 1995; Yost 2000). Several important factors relate to the magnitude of TS, such as level, duration, spectral content (frequency range), and temporal pattern (continuous, intermittent) of exposure (Yost 2000; Henderson et al., 2008). TS occurs in terms of frequency range (Hz or kHz), hearing threshold level (dB), or both frequency and hearing threshold level (CDC 2004).

    In addition, there are different degrees of PTS: ranging from slight/mild to moderate and from severe to profound (Clark 1981). Profound PTS or the complete loss of the ability to hear in one or both ears is commonly referred to as deafness (CDC 2004; WHO 2006). High-frequency PTS, presumably as a normal process of aging that occurs in humans and other terrestrial mammals, has also been demonstrated in captive cetaceans (Ridgway and Carder 1997; Yuen et al., 2005; Finneran et al., 2005; Houser and Finneran 2006; Finneran et al., 2007; Schlundt et al., 2011) and in stranded individuals (Mann et al., 2010).

    In terms of what is analyzed for the potential PTS (Level A harassment) in marine mammals as a result of Eglin AFB's Maritime WSEP operations, if it occurs, NMFS has determined that the levels would be slight/mild because most cetaceans would be expected to show relatively high levels of avoidance. Further, it is uncommon to sight marine mammals within the target area, especially for prolonged durations. Results from monitoring programs associated other Eglin AFB activities and for Eglin AFB's 2016 Maritime WSEP activities have shown the absence of marine mammals within the EGTTR during and after maritime operations. Avoidance varies among individuals and depends on their activities or reasons for being in the area.

    NMFS' predicted estimates for Level A harassment take are likely overestimates of the likely injury that will occur. NMFS expects that successful implementation of the required vessel-based and video-based mitigation measures would avoid Level A take in some instances. Also, NMFS expects that some individuals would avoid the source at levels expected to result in injury. Nonetheless, although NMFS expects that Level A harassment is unlikely to occur at the numbers proposed to be authorized, because it is difficult to quantify the degree to which the mitigation and avoidance will reduce the number of animals that might incur PTS, we are proposing to authorize (and analyze) the modeled number of Level A takes (three), which does not take the mitigation or avoidance into consideration. However, we anticipate that any PTS incurred because of mitigation and the likely short duration of exposures, would be in the form of only a small degree of permanent threshold shift and not total deafness.

    While animals may be impacted in the immediate vicinity of the activity, because of the short duration of the actual individual explosions themselves (versus continual sound source operation) combined with the short duration of the Maritime WSEP operations, NMFS has preliminarily determined that there will not be a substantial impact on marine mammals or on the normal functioning of the nearshore or offshore Gulf of Mexico ecosystems. We do not expect that the proposed activity would impact rates of recruitment or survival of marine mammals since we do not expect mortality (which would remove individuals from the population) or serious injury to occur. In addition, the proposed activity would not occur in areas (and/or times) of significance for the marine mammal populations potentially affected by the exercises (e.g., feeding or resting areas, reproductive areas), and the activities would only occur in a small part of their overall range, so the impact of any potential temporary displacement would be negligible and animals would be expected to return to the area after the cessations of activities. Although the proposed activity could result in Level A (PTS only, not slight lung injury or gastrointestinal tract injury) and Level B (behavioral disturbance and TTS of lesser degree and shorter duration) harassment of marine mammals, the level of harassment is not anticipated to impact rates of recruitment or survival of marine mammals because the number of exposed animals is expected to be low due to the short-term (i.e., four hours a day or less) and site-specific nature of the activity. We do not anticipate that the effects would be detrimental to rates of recruitment and survival because we do not expect serious of extended behavioral responses that would result in energetic effects at the level to impact fitness.

    Moreover, the mitigation and monitoring measures proposed for the Authorization (described earlier in this document) are expected to further minimize the potential for harassment. The protected species surveys would require Eglin AFB to search the area for marine mammals, and if any are found in the live fire area, then the exercise would be suspended until the animal(s) has left the area or relocated. Moreover, marine species observers located in the Eglin control tower would monitor the high-definition video feed from cameras located on the instrument barge anchored on-site for the presence of protected species. Furthermore, Maritime WSEP missions would be delayed or rescheduled if the sea state is greater than a 4 on the Beaufort Scale at the time of the test. In addition, Maritime WSEP missions would occur no earlier than two hours after sunrise and no later than two hours prior to sunset to ensure adequate daylight for pre- and post-mission monitoring.

    Based on the preliminary analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that Eglin AFB's Maritime WSEP operations will result in the incidental take of marine mammals, by Level A and Level B harassment only, and that the taking from the Maritime WSEP exercises will not have an adverse effect on annual rates of recruitment or survival, and therefore will have a negligible impact on the affected species or stocks.

    Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Due to the location of the activity and past experience with similar authorizations for these activities, no ESA-listed marine mammal species are likely to be affected. Therefore, NMFS has preliminarily determined that this proposed Authorization would have no effect on ESA-listed species. However, prior to the agency's decision on the issuance or denial of this Authorization, NMFS will make a final determination on whether additional consultation is necessary.

    National Environmental Policy Act (NEPA)

    In 2015, Eglin AFB provided NMFS with an EA titled, Maritime Weapon Systems Evaluation Program (WSEP) Operational Testing in the Eglin Gulf Testing and Training Range (EGTTR), Florida. The EA analyzed the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals. NMFS, after review and evaluation of the Eglin AFB EA for consistency with the regulations published by the Council of Environmental Quality (CEQ) and NOAA Administrative Order 216-6, Environmental Review Procedures for Implementing the National Environmental Policy Act, adopted the EA. After considering the EA, the information in the 2014 IHA application, and the Federal Register notice, as well as public comments, NMFS' issuance of the 2015 Authorization and determination that the activity was not likely to result in significant impacts on the human environment, NMFS adopted Eglin AFB's EA under 40 CFR 1506.3; and issued a FONSI statement on issuance of an Authorization under section 101(a)(5) of the MMPA.

    In accordance with NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999), NMFS will again review the information contained in Eglin AFB's EA and determine whether the EA accurately and completely describes the preferred action alternative and the potential impacts on marine mammals. Based on this review and analysis, NMFS may reaffirm the 2015 FONSI statement on issuance of an annual authorization under section 101(a)(5) of the MMPA or supplement the EA if necessary.

    Proposed Authorization

    As a result of these preliminary determinations, we propose to issue an Authorization to Eglin AFB for conducting Maritime WSEP activities, for a period of one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed Authorization language is provided in the next section. The wording contained in this section is proposed for inclusion in the Authorization (if issued).

    1. This Authorization is valid for a period of one year from February 4, 2017 through February 3, 2018.

    2. This Authorization is valid only for activities associated with the Maritime WSEP operations utilizing munitions identified in the Attachment.

    3. The incidental taking, by Level A and Level B harassment, is limited to: Atlantic bottlenose dolphin (Tursiops truncatus); and Atlantic spotted dolphin (Stenella frontalis) as specified in Table 1, below.

    Table 1—Modeled Number of Marine Mammals Potentially Affected by Maritime WSEP Operations. Species Mortality Level A harassment
  • (PTS only)
  • Level B harassment (TTS) Level B harassment (behavioral)
    Bottlenose dolphin 0 2 87 157 Atlantic spotted dolphin 0 1 29 53 Total 0 3 116 210

    The taking by serious injury or death of these species, the taking of these species in violation of the conditions of this Incidental Harassment Authorization, or the taking by harassment, serious injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension or revocation of this Authorization.

    4. Mitigation.

    When conducting this activity, the following mitigation measures must be undertaken:

    • If daytime weather and/or sea conditions preclude adequate monitoring for detecting marine mammals and other marine life, maritime strike operations must be delayed until adequate sea conditions exist for monitoring to be undertaken. Daytime maritime strike exercises will be conducted only when sea surface conditions do not exceed Beaufort sea state 4 (i.e., wind speed 13-18 mph (11-16 knots); wave height 1 m (3.3 ft)), the visibility is 5.6 km (3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater;

    • On the morning of the maritime strike mission, the test director and safety officer will confirm that there are no issues that would preclude mission execution and that the weather is adequate to support monitoring and mitigation measures.

    Two Hours Prior to Mission

    • Mission-related surface vessels will be stationed on site.

    • Vessel-based observers on board at least one vessel will assess the overall suitability of the test site based on environmental conditions (e.g., sea state) and presence/absence of marine mammal or marine mammal indicators (e.g., large schools of fish, jellyfish, Sargassum rafts, and large flocks of birds feeding at the surface). Observers will relay this information to the safety officer.

    One and One-half Hours Prior to Mission

    • Vessel-based surveys and video camera surveillance will commence. Vessel-based observers will survey the zone of impact (ZOI) calculated for that day's mission category and relay all marine mammal and indicator sightings, including the time of sighting and direction of travel (if known) to the safety officer. Surveys will continue for approximately one hour.

    • If marine mammals or marine mammal indicators are observed within the ZOI, the test range will be declared “fouled,” which will signify to mission personnel that conditions are such that a live ordnance drop cannot occur.

    • If no marine mammals or marine mammal indicators are observed, the range will be declared “green,” which will signify to mission personnel that conditions are such that a live ordnance drop may occur.

    One-half Hour Prior to Mission

    • Approximately 30 minutes prior to live weapon deployment, vessel-based observers will be instructed to leave the test site and remain outside the safety zone, which will be approximately 9.5 miles from the detonation point (actual size will be determined by weapon net explosive weight (NEW) and method of delivery) during the conduct of the mission.

    • Monitoring for marine mammals will continue from the periphery of the safety zone while the mission is in progress. Other safety boat crews will be instructed to observe for marine mammals during this time.

    • After survey vessels have left the test site, marine species monitoring will continue for the Eglin control tower through the video feed received from the high definition cameras on the instrument barge.

    Execution of Mission

    • Immediately prior to live weapons drop, the Test Director and Safety Officer will communicate to confirm the results of the marine mammal survey and the appropriateness of proceeding with the mission. The Safety Ffficer will have final authority to proceed with, postpone, move, or cancel the mission.

    • The mission will be postponed or moved if: Any marine mammal is visually detected within the ZOI, or large schools of fish, jellyfish, Sargassum rafts, or large flocks of birds feeding at the surface are observed within the ZOI. Postponement will continue until the animal(s) that caused the postponement is (1) confirmed to be outside of the ZOI due to swimming out of the range on a heading away from the targets; or (2) not seen again for 30 minutes and presumed to be outside the ZOI due to the animal swimming outside of the range. Postponement will continue until these potential indicators are confirmed to be outside the ZOI.

    • In the event of a postponement, pre-mission monitoring will continue as long as weather and daylight hours allow (no later than two hours prior to sunset).

    Post Mission

    • Post-mission surveys will commence as soon as Explosive Ordnance Disposal (EOD) personnel declare the test area safe. These surveys will be conducted by the same vessel-based observers that conducted the pre-mission surveys.

    • Survey vessels will move into the ZOI from outside the safety zone and monitor for at least 30 minutes, concentrating on the area down-current of the test site. Any marine mammals killed or injured as a result of the test will be documented and immediately reported to the National Marine Fisheries Service (NMFS) Southeast Region Marine Mammal Stranding Network at 877-433-8299 and the Florida Marine Mammal Stranding Hotline at 888-404-3922. The species, number, location, and behavior of any animals observed will be documented and reported.

    • If post-mission surveys determine that an injury or lethal take of a marine mammal has occurred, the next maritime strike mission will be suspended until the test procedure and the monitoring methods have been reviewed with NMFS and appropriate changes made.

    5. Monitoring.

    The holder of this Authorization is required to cooperate with the National Marine Fisheries Service and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals.

    The holder of this Authorization will track their use of the EGTTR for the Maritime WSEP missions and marine mammal observations, through the use of mission reporting forms.

    Maritime strike missions will coordinate with other activities conducted in the EGTTR (e.g., Precision Strike Weapon and Air-to-Surface Gunnery missions) to provide supplemental post-mission observations of marine mammals in the operations area of the exercise.

    Any dead or injured marine mammals observed or detected prior to testing or injured or killed during live drops, must be immediately reported to the NMFS Southeast Region Marine Mammal Stranding Network at 877-433-8299 and the Florida Marine Mammal Stranding Hotline at 888-404-3922.

    Any unauthorized impacts on marine mammals must be immediately reported to the National Marine Fisheries Service's Southeast Regional Administrator, at 727-842-5312, and the Chief of the Permits and Conservation Division, Office of Protected Resources, at 301-427-8401.

    The monitoring team will document any marine mammals that were killed or injured as a result of the test and, if practicable, coordinate with the local stranding network and NMFS to assist with recovery and examination of any dead animals, as needed.

    Activities related to the monitoring described in this Authorization, including the retention of marine mammals, do not require a separate scientific research permit issued under Section 104 of the Marine Mammal Protection Act.

    6. Reporting.

    A draft report of marine mammal observations and Maritime WSEP mission activities must be submitted to the National Marine Fisheries Service's Southeast Regional Office, Protected Resources Division, 263 13th Ave. South, St. Petersburg, FL 33701 and NMFS's Office of Protected Resources, 1315 East West Highway, Silver Spring, MD 20910. This draft report must include the following information:

    • Date and time of each maritime strike mission;

    • A complete description of the pre-exercise and post-exercise activities related to mitigating and monitoring the effects of maritime strike missions on marine mammal populations;

    • Results of the monitoring program, including numbers by species/stock of any marine mammals noted injured or killed as a result of the maritime strike mission and number of marine mammals (by species if possible) that may have been harassed due to presence within the ZOI; and

    • A detailed assessment of the effectiveness of sensor based monitoring in detecting marine mammals in the area of Maritime WSEP operations.

    The draft report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under this Authorization if NMFS has not provided comments and recommendations within 90 days of receipt of the draft report.

    7. Additional Conditions.

    • The maritime strike mission monitoring team will participate in the marine mammal species observation training. Designated crew members will be selected to receive training as protected species observers (PSO). PSOs will receive training in protected species survey and identification techniques through a NMFS-approved training program.

    • The holder of this Authorization must inform the Director, Office of Protected Resources, National Marine Fisheries Service, (301-427-8400) or designee (301-427-8401) prior to the initiation of any changes to the monitoring plan for a specified mission activity.

    • A copy of this Authorization must be in the possession of the Safety Officer on duty each day that maritime strike missions are conducted.

    • Failure to abide by the Terms and Conditions contained in this Incidental Harassment Authorization may result in a modification, suspension or revocation of the Authorization.

    Request for Public Comments

    We request comment on our analysis, the draft authorization, and any other aspect of this Federal Register notice of proposed Authorization. Please include with your comments any supporting data or literature citations to help inform our final decision on Eglin AFB's renewal request for an MMPA authorization.

    Dated: November 15, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-27881 Filed 11-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE Patent and Trademark Office [Docket No.: PTO-C-2016-0047] National Telecommunications and Information Administration; Notice of Public Meeting on Developing the Digital Marketplace for Copyrighted Works AGENCY:

    United States Patent and Trademark Office, U.S. Department of Commerce; National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The Department of Commerce's Internet Policy Task Force (Task Force) will hold a conference at the United States Patent and Trademark Office (USPTO) facility in Alexandria, Virginia, on December 9, 2016, to discuss current initiatives and technologies used to develop a more robust and collaborative digital marketplace for copyrighted works and to consider ways forward to help achieve that result. This follows up on an earlier public meeting held by the Task Force on April 1, 2015, which focused on how the Government can assist in facilitating the development and use of standard identifiers for all types of works of authorship.

    DATES:

    The public meeting will be held on December 9, 2016, from 8:30 a.m. to 4:00 p.m., Eastern Standard Time. Registration will begin at 8:00 a.m.

    ADDRESSES:

    The public meeting will be held at the United States Patent and Trademark Office in the Madison Auditorium, which is located at 600 Dulany Street, Alexandria, Virginia 22314. All major entrances to the building are accessible to people with disabilities. In addition, the meeting will be webcast for public viewing at the following USPTO Regional Offices: the Rocky Mountain Regional Office, 1961 Stout Street, Denver, Colorado 80294; the West Coast Regional Office, 26 S. Fourth Street, San Jose, California 95113; and the Texas Regional Office, 207 South Houston Street, Suite 159, Dallas, Texas 75202.

    FOR FURTHER INFORMATION CONTACT:

    For further information regarding the meeting, contact Nadine Herbert or Susan Allen, Office of Policy and International Affairs, USPTO, Madison Building, 600 Dulany Street, Alexandria, Virginia 22314; telephone (571) 272-9300; email [email protected]or [email protected] Please direct all media inquiries to the Office of the Chief Communications Officer, USPTO, at (571) 272-8400.

    SUPPLEMENTARY INFORMATION:

    Background A. Ongoing Government Engagement Relating to Copyright in the Digital Economy

    The Department of Commerce established the Internet Policy Task Force (Task Force) in 2010 to identify leading public policy and operational issues impacting the U.S. private sector's ability to realize the potential for economic growth and job creation through the Internet. The Task Force's July 2013 report, Copyright Policy, Creativity, and Innovation in the Digital Economy (Green Paper),1 was the product of extensive public consultations led by the United States Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA).

    1 The Green Paper is available at http://www.uspto.gov/sites/default/files/news/publications/copyrightgreenpaper.pdf.

    In October 2013, the USPTO and NTIA published a request for public comments 2 relating to three areas of work flowing out of the Green Paper, including whether and how the Government can facilitate the further development of a robust online licensing environment. The request for comments noted that building the online marketplace is fundamentally a function of the private sector and described how that process has been progressing. It noted the Green Paper's conclusion that, while much progress had been made in the licensing of creative content for online uses, there remained a need for more comprehensive and reliable ownership data, interoperable standards enabling communication among databases, and more streamlined licensing mechanisms. It posed a number of questions regarding access to and standardization of rights ownership information, facilitating the effectiveness of the online marketplace, and the role of the Government in such matters.

    2 Request for Comments on Department of Commerce Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy, 78 FR 61337-61341, available at https://www.ntia.doc.gov/files/ntia/publications/ntia_pto_rfc_10032013.pdf.

    At a subsequent public meeting in December 2013, two panels addressed issues related to this topic: access to rights information and online licensing transactions. An archive of the webcast of the public meeting is available at http://new.livestream.com/uspto/copyright. A transcript of the public meeting is available at https://www.uspto.gov/ip/global/copyrights/121213-USPTO-Green_Paper_Hearing-Transcript.pdf. Copies of the comments received are available at http://www.uspto.gov/ip/global/copyrights/green_paper_public_comments.jsp.

    In April 2015, the Task Force held another public meeting to discuss: The potential for the enhanced use and interoperability of standard identifiers across different sectors and geographical borders; whether the United States should develop or participate in an online licensing platform such as the U.K.'s Copyright Hub; and what the role of the Government should be in furthering any of these efforts. A transcript and videos of the public meeting are available at http://www.uspto.gov/learning-and-resources/ip-policy/copyright/facilitating-development-online-licensing-environment.

    The Copyright Office also has solicited public comments and held public meetings on related issues, notably on strategies for the electronic recordation of documents relating to transfers of copyright ownership, including the use of standard identifiers and other metadata standards, and sought comments on how visual works, particularly photographs, graphic artworks, and illustrations, are monetized, enforced, and registered under the Copyright Act.3 In a December 2014 report, Professor Robert Brauneis, then serving as the Kaminstein Scholar in Residence at the Copyright Office, made a number of recommendations, including accommodating standard identifiers in registration and recordation documents to enable interoperability with other databases and developing an application programming interface (API) allowing third parties to develop software to retrieve data from Copyright Office records. In February 2015, the Copyright Office issued a Report on Copyright and the Music Marketplace, which recommended a restructured music licensing marketplace that included a publicly accessible database of musical works and incentivized the use of standard identifiers. The Copyright Office also raised the possibility that its copyright registration database could be modified to incorporate standard identifiers and stated the belief that the best strategy to address data issues would be to incentivize strongly the universal adoption and dissemination of several data standards.

    3See Copyright Office Policy Studies, available at http://www.copyright.gov/policy.

    B. The Focus of This Meeting

    In the previous public comments and meetings, the Task Force heard from stakeholders that the government can play a useful role by facilitating dialogues between and among industry sectors and by convening stakeholder groups to make recommendations on specific issues. Building upon this feedback, and in light of significant marketplace and technological developments that have taken place since the April 2015 public meeting, the Task Force is organizing this meeting to facilitate constructive, cross-industry dialogue among stakeholders about ways to promote a more robust and collaborative online marketplace for copyrighted works. We will discuss the potential for interoperability across digital registries and standards work in this field, and consider the relevant emerging technologies (e.g., blockchain technology, open source platforms). We will also explore potential approaches to guide their future adoption and integration into the online marketplace.

    Topics to be covered will include: (1) Initiatives to take forward the digital content marketplace, with a focus on standards, interoperability, and digital registries and database initiatives to track ownership and usage rights; (2) innovative technologies designed to improve the ways consumers access and use different types of digital content (e.g., photos, film, music); (3) ways that different sectors can collaborate to build a more robust and interconnected digital content marketplace; and (4) the role of government in facilitating such initiatives and technological development. Members of the public will have opportunities to participate at the meeting. One outcome could be to establish working groups to tackle specific issues through a multistakeholder process.

    Public Meeting

    On December 9, 2016, the Task Force will hold a public meeting to hear stakeholder input and to consider future work in this area. The event will seek participation and comments from interested stakeholders, including creators, right holders, and online services that produce and distribute copyright protected digital content, as well as technology providers, cultural heritage institutions, public interest groups, and academics.

    The meeting will be webcast. The agenda and webcast information will be available no later than the week prior to the meeting on the Internet Policy Task Force Web site, at http://www.ntia.doc.gov/internetpolicytaskforce, and the USPTO's Web site, http://www.uspto.gov.

    The meeting will be open to members of the public to attend, space permitting, on a first-come, first-served basis. Online registration for the meeting, which is not mandatory, is available at https://www.uspto.gov/learning-and-resources/ip-policy/department-commerce-internet-policy-task-force-public-meeting. The meeting will be physically accessible to people with disabilities. Individuals requiring accommodation, such as sign language interpretation, real-time captioning of the webcast or other ancillary aids, should communicate their needs to Nadine Herbert, Office of Policy and International Affairs, United States Patent and Trademark Office, Madison Building, 600 Dulany Street, Alexandria, Virginia 22314; telephone (571) 272-9300; email [email protected], at least seven business days prior to the meeting. Attendees should arrive at least one-half hour prior to the start of the meeting and must present a valid government-issued photo identification upon arrival. Persons who have pre-registered (and received confirmation) will have seating held until 15 minutes before the program begins.

    Dated: November 15, 2016. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Angela M. Simpson, Deputy Assistant Secretary of Commerce for Communications and Information, National Telecommunications and Information Administration.
    [FR Doc. 2016-27934 Filed 11-18-16; 8:45 am] BILLING CODE 3510-16-P
    DEPARTMENT OF DEFENSE Office of the Secretary Charter Renewal of Department of Defense Federal Advisory Committees AGENCY:

    Department of Defense.

    ACTION:

    Renewal of Federal Advisory Committee.

    SUMMARY:

    The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Defense Health Board (“the Board”).

    FOR FURTHER INFORMATION CONTACT:

    Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.

    SUPPLEMENTARY INFORMATION:

    The Board's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The Board's charter and contact information for the Board's Designated Federal Officer (DFO) can be found at http://www.facadatabase.gov/.

    The Board provides the Secretary of Defense and the Deputy Secretary of Defense, through the Under Secretary of Defense for Personnel and Readiness, independent advice and recommendations to maximize the safety and quality of, as well as the access to, health care for DoD health care beneficiaries.

    The Board is composed of no more than 19 members who are eminent authorities in one or more of the following disciplines: Health care research/academia, infectious disease, occupational/environmental health, public health, health care policy, trauma medicine/systems, clinical health care, strategic decision making, bioethics or ethics, beneficiary representative, neuroscience, and behavioral health. Except for reimbursement of official Board-related travel and per diem, Board members serve without compensation.

    The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Board. All written statements shall be submitted to the DFO for the Board, and this individual will ensure that the written statements are provided to the membership for their consideration.

    Dated: November 16, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-27968 Filed 11-18-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Charter Renewal of Department of Defense Federal Advisory Committee AGENCY:

    Department of Defense.

    ACTION:

    Renewal of Federal Advisory Committee.

    SUMMARY:

    The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Department of Defense Military Family Readiness Council (“the Council”).

    FOR FURTHER INFORMATION CONTACT:

    Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.

    SUPPLEMENTARY INFORMATION:

    The Council's charter is being renewed under the provisions of 10 U.S.C. 1781a, as amended and in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(a). The Council's charter and contact information for the Council's Designated Federal Officer (DFO) can be found at http://www.facadatabase.gov/.

    The Council shall review and provide independent advice and recommendations to the Secretary of Defense and the Deputy Secretary of Defense, through the Under Secretary of Defense for Personnel and Readiness, regarding the plans required under 10 U.S.C. 1781b, monitor requirements for the support of military family readiness by the DoD, and evaluate and assess the effectiveness of the military family readiness programs and activities of the DoD.

    The Council is composed of 18 members as specified in 10 U.S.C. 1781a(b), as amended. All members of the Council are appointed to provide advice on behalf of the Government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Council-related travel and per diem, Council members serve without compensation.

    The public or interested organizations may submit written statements to the Council membership about the Council's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Council. All written statements shall be submitted to the DFO for the Council, and this individual will ensure that the written statements are provided to the membership for their consideration.

    Dated: November 16, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-27970 Filed 11-18-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION President's Advisory Commission on Asian Americans and Pacific Islanders AGENCY:

    President's Advisory Commission on Asian Americans and Pacific Islanders, Department of Education.

    ACTION:

    Announcement of open meetings.

    SUMMARY:

    This notice sets forth the schedule and agenda of the meeting of the President's Advisory Commission on Asian Americans and Pacific Islanders (Commission). The notice also describes the functions of the Commission. Notice of the meeting is required by § 10 (a) (2) of the Federal Advisory Committee Act and is intended to notify the public of its opportunity to attend.

    DATES:

    The Commission meetings will be held on Tuesday, December 6, 2016 from 1:00 p.m.—5:30 p.m. EST and Wednesday, December 7, 2016 from 8:30 a.m.—12:30 p.m. EST at the U.S. Department of Education, 550 12th SW., 10th Floor, Washington, DC 20202. On Thursday, December 8, the Commission will be convening with the White House Initiative on AAPIs Regional Network (RN) from 9:00am—5:00pm at the U.S. Department of Education, 550 12th SW., 10th Floor, Washington, DC 20202.

    Please Note: To enter the Department of Education, visitors must present a valid, unexpired photo ID issued by a Federal or state government.

    FOR FURTHER INFORMATION CONTACT:

    Justin Trinidad, White House Initiative on Asian Americans and Pacific Islanders, Potomac Center Plaza, 550 12th Street SW., Washington, DC 20202; email: [email protected]; telephone: 202-245-6321, fax: 202-245-7166.

    SUPPLEMENTARY INFORMATION:

    The AAPI Commission's Statutory Authority and Function: The President's Advisory Commission on Asian Americans and Pacific Islanders is established under Executive Order 13515, dated October 14, 2009 and subsequently continued and amended by Executive Order 13708. The Commission is also governed by the provisions of the Federal Advisory Committee Act (FACA), (P.L 92-463; as amended, 5 U.S.C.A. App.2) which sets forth standards for the formation and use of advisory committees. According to Executive Order 13515, the Commission shall provide advice to the President, through the Secretary of Education and a senior official designated by the President, on: (i) The development, monitoring, and coordination of executive branch efforts to improve the quality of life of Asian Americans and Pacific Islanders (AAPIs) through increased participation in Federal programs in which such persons may be underserved; (ii) the compilation of research and data related to AAPI populations and subpopulations; (iii) the development, monitoring, and coordination of Federal efforts to improve the economic and community development of AAPI businesses; and (iv) strategies to increase public and private-sector collaboration, and community involvement in improving the health, education, environment, and well-being of AAPIs.

    Meeting Agenda: The purpose of this meeting is to discuss current and future endeavors of the White House Initiative on Asian Americans and Pacific Islanders and key issues and concerns impacting the AAPI community; review the work of the White House Initiative on Asian Americans and Pacific Islanders; and determine key strategies to help meet the Commission's charge as outlined in Executive Order 13515. On Thursday, December 8th, the Commission will meet with the Regional Network to determine regional engagement strategies and deliverables.

    Members of the public who wish to attend the meetings must RSVP to Justin Trinidad via email at [email protected] no later than November 28, 2016 at 3:00 p.m. ET. The RSVP must include name, title, organization/affiliation, email address, and telephone number of the person attending the meeting.

    Submission of Written Comments: Due to time constraints, there will not be a public comment period at these meetings. However, individuals wishing to provide written comments regarding the meeting agenda or the Commission's work may send comments to Justin Trinidad via email at [email protected] Please include in the subject line the wording, “Public Comment—Commission Meeting.”

    Access to Records of the Meeting: The Department will post the official report of the meeting on its Department of Education Web site no later than 90 days after the meeting. Pursuant to the FACA, the public may also inspect the materials at 550 12th Street SW., Washington, DC 20202 by emailing [email protected] or by calling (202) 245-6321 to schedule an appointment.

    Reasonable Accommodations: The meeting sites are accessible to individuals with disabilities. Individuals who will need accommodations for a disability in order to attend the meetings (e.g., interpreting services, assistive listening devices, or material in alternative format) should notify Justin Trinidad by emailing [email protected] or by calling (202) 245-6321, no later than November 28, 2016. We will make every attempt to meet requests for accommodations after this date, but cannot guarantee their availability.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Authority:

    Executive Order No. 13515, as amended by Executive Orders 13585 and extended by 13708.

    Ted Mitchell, Under Secretary, U.S. Department of Education.
    [FR Doc. 2016-27882 Filed 11-18-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Bonneville Power Administration Availability of the Bonneville Purchasing Instructions (BPI) and Bonneville Financial Assistance Instructions (BFAI) AGENCY:

    Bonneville Power Administration (BPA), DOE

    ACTION:

    Notice of document availability.

    SUMMARY:

    Copies of the Bonneville Purchasing Instructions (BPI), which contain the policy and establish the procedures that BPA uses in the solicitation, award, and administration of its purchases of goods and services, including construction, are available in printed form or at the following Internet address: http://www.bpa.gov/corporate/business/bpi.

    Copies of the Bonneville Financial Assistance Instructions (BFAI), which contain the policy and establish the procedures that BPA uses in the solicitation, award, and administration of financial assistance instruments (principally grants and cooperative agreements), are available in printed form or available at the following Internet address: http://www.bpa.gov/corporate/business/bfai.

    ADDRESSES:

    Unbound copies of the BPI or BFAI may be obtained by sending a request to the Head of the Contracting Activity, Routing CGP-7, Bonneville Power Administration, P.O. Box 3621, Portland, Oregon 97208-3621.

    FOR FURTHER INFORMATION CONTACT:

    Head of Contracting Activity (503) 230-5498.

    SUPPLEMENTARY INFORMATION:

    BPA was established in 1937 as a Federal Power Marketing Agency in the Pacific Northwest. BPA operations are financed from power revenues rather than annual appropriations. BPA's purchasing operations are conducted under 16 U.S.C. 832 et seq. and related statutes. Pursuant to these special authorities, the BPI is promulgated as a statement of purchasing policy and as a body of interpretative regulations governing the conduct of BPA purchasing activities, and reflects BPA's private sector approach to purchasing the goods and services that it requires. BPA's financial assistance operations are conducted under 16 U.S.C. 832 et seq. and 16 U.S.C. 839 et seq. The BFAI express BPA's financial assistance policy. The BFAI also comprise BPA's rules governing implementation of the principles provided in 2 CFR 200.

    BPA's solicitations and contracts include notice of applicability and availability of the BPI and the BFAI, as appropriate, for the information for offerors on particular purchases or financial assistance transactions.

    Issued in Portland, Oregon, on November 10, 2016. Nicholas M. Jenkins, Manager, Purchasing/Property Governance.
    [FR Doc. 2016-27933 Filed 11-18-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [FE Docket No. 16-141-LNG] Chevron U.S.A. Inc.; Application for Blanket Authorization To Export Previously Imported Liquefied Natural Gas on a Short-Term Basis AGENCY:

    Office of Fossil Energy, DOE.

    ACTION:

    Notice of application.

    SUMMARY:

    The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on September 22, 2016, by Chevron U.S.A. Inc. (Chevron), requesting blanket authorization to export liquefied natural gas (LNG) previously imported into the United States from foreign sources in an amount up to the equivalent of 72 billion cubic feet (Bcf) of natural gas on a short-term or spot market basis for a two-year period commencing on December 8, 2016 or as soon thereafter as the authorization is granted. The LNG would be exported from the Sabine Pass LNG Terminal owned by Sabine Pass LNG, L.P., in Cameron Parish, Louisiana, to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy. Chevron states that it has contracted for 1.0 Bcf/day of terminal capacity from Sabine Pass LNG, L.P., for an initial term of 20 years that will expire June 30, 2029, with the option to extend the term for another 20 years. Chevron states that it does not seek authorization to export domestically-produced natural gas supplies, and notes that it currently holds a blanket authorization to import LNG from various international sources by vessel in an amount up to the equivalent of 800 Bcf of natural gas. The Application was filed under section 3 of the Natural Gas Act (NGA). Additional details can be found in Chevron's Application, posted on the DOE/FE Web site at: http://www.energy.gov/fe/chevron-usa-inc-16-141-lng-re-export. Protests, motions to intervene, notices of intervention, and written comments are invited.

    DATES:

    Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, December 21, 2016.

    ADDRESSES:

    Electronic Filing by email: [email protected]

    Regular Mail: U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, P.O. Box 44375, Washington, DC 20026-4375.

    Hand Delivery or Private Delivery Services (e.g., FedEx, UPS, etc.): U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Larine Moore or Kyle W. Moorman, U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478; (202) 586-9387. Edward Myers, U.S. Department of Energy (GC-76), Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-3397. SUPPLEMENTARY INFORMATION: DOE/FE Evaluation

    The Application will be reviewed pursuant to section 3 of the NGA, as amended, and the authority contained in DOE Delegation Order No. 00-002.00N (July 11, 2013) and DOE Redelegation Order No. 00-002.04F (July 11, 2013). In reviewing this LNG export application, DOE will consider domestic need for the gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Parties that may oppose this application should comment in their responses on these issues.

    The National Environmental Policy Act (NEPA), 42 U.S.C. 4231, et seq., requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. No final decision will be issued in this proceeding until DOE has met its NEPA responsibilities.

    Public Comment Procedures

    In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.

    Filings may be submitted using one of the following methods: (1) Emailing the filing to [email protected], with FE Docket No. 16-141-LNG in the title line; (2) mailing an original and three paper copies of the filing to the Office of Regulation and International Engagement at the address listed in ADDRESSES; or (3) hand delivering an original and three paper copies of the filing to the Office of Regulation and International Engagement at the address listed in ADDRESSES. All filings must include a reference to FE Docket No. 16-141-LNG.

    Please Note: If submitting a filing via email, please include all related documents and attachments (e.g., exhibits) in the original email correspondence. Please do not include any active hyperlinks or password protection in any of the documents or attachments related to the filing. All electronic filings submitted to DOE must follow these guidelines to ensure that all documents are filed in a timely manner. Any hardcopy filing submitted greater in length than 50 pages must also include, at the time of the filing, a digital copy on disk of the entire submission.

    A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.

    The Application is available for inspection and copying in the Division of Natural Gas Regulatory Activities docket room, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address: http://www.fe.doe.gov/programs/gasregulation/index.html.

    Issued in Washington, DC, on November 15, 2016. John A. Anderson, Director, Office of Regulation and International Engagement, Office of Oil and Natural Gas. [FR Doc. 2016-27935 Filed 11-18-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Nuclear Energy Advisory Committee AGENCY:

    Office of Nuclear Energy, Department of Energy.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces a meeting of the Nuclear Energy Advisory Committee (NEAC). Federal Advisory Committee Act (Pub. L. 94-463, 86 Stat. 770) requires that public notice of these meetings be announced in the Federal Register.

    DATES:

    Friday, December 9, 2016, 9:00 a.m.-4:30 p.m.

    ADDRESSES:

    Westin Crystal City, 1800 Jefferson Davis Highway, Arlington, VA 22202.

    FOR FURTHER INFORMATION CONTACT:

    Bob Rova, Designated Federal Officer, U.S. Department of Energy, 19901 Germantown Rd., Germantown, MD 20874; telephone (301) 903-9096; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Nuclear Energy Advisory Committee (NEAC), formerly the Nuclear Energy Research Advisory Committee (NERAC), was established in 1998 by the U.S. Department of Energy (DOE) to provide advice on complex scientific, technical, and policy issues that arise in the planning, managing, and implementation of DOE's civilian nuclear energy research programs. The committee is composed of individuals of diverse backgrounds selected for their technical expertise and experience, established records of distinguished professional service, and their knowledge of issues that pertain to nuclear energy.

    Purpose of the Meeting: To inform the committee of recent developments and current status of research programs and projects pursued by the Department of Energy's Office of Nuclear Energy and receive advice and comments in return from the committee.

    Tentative Agenda: The meeting is expected to include presentations that provide the committee updates on activities for the Office of Nuclear Energy. In addition, there will be presentations by Nuclear Energy Advisory Committee subcommittees. The agenda may change to accommodate committee business. For updates, one is directed the NEAC Web site: http://energy.gov/ne/services/nuclear-energy-advisory-committee.

    Public Participation: Individuals and representatives of organizations who would like to offer comments and suggestions may do so on the day of the meeting December 9, 2016. Approximately thirty minutes will be reserved for public comments. Time allotted per speaker will depend on the number who wish to speak but is not expected to exceed 5 minutes. Anyone who is not able to make the meeting or has had insufficient time to address the committee is invited to send a written statement to Bob Rova, U.S. Department of Energy 1000 Independence Avenue SW., Washington DC 20585, or email [email protected]

    Minutes: The minutes of the meeting will be available by contacting Mr. Rova at the address above or on the Department of Energy, Office of Nuclear Energy Web site at http://energy.gov/ne/services/nuclear-energy-advisory-committee.

    Issued in Washington, DC on November 15, 2016. LaTayna R. Butler, Deputy Committee Management Officer.
    [FR Doc. 2016-27936 Filed 11-18-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Secretary of Energy Advisory Board AGENCY:

    Department of Energy.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces an open meeting of the Secretary of Energy Advisory Board (SEAB). SEAB was reestablished pursuant to the Federal Advisory Committee Act. This notice is provided in accordance with the Act.

    DATES:

    December 12, 2016, 4:00 p.m.-5:00 p.m.

    ADDRESSES:

    Department of Energy, 1000 Independence Avenue SW., Room 1E-245, Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Karen Gibson, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Board was established to provide advice and recommendations to the Secretary on the Department's basic and applied research, economic and national security policy, educational issues, operational issues, and other activities as directed by the Secretary.

    Purpose of the Meeting: This meeting is the quarterly meeting of the Board.

    Tentative Agenda: The meeting will start at 4:00 p.m. on December 12th. The tentative meeting agenda will be a SEAB discussion of its advice to the Department and an opportunity for comments from the public. The meeting will conclude at 5:00 p.m. Agenda updates will be posted on the SEAB Web site prior to the meeting: www.energy.gov/seab.

    Public Participation: The meeting is open to the public. Individuals who would like to attend must RSVP to Karen Gibson no later than 5:00 p.m. on Thursday, December 8, 2016, by email at: [email protected] Please provide your name, organization, citizenship, and contact information. Anyone attending the meeting will be required to present government issued identification. Please note that the Department of Homeland Security (DHS) has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable: American Samoa, Missouri, Washington and Wisconsin. Acceptable alternate forms of Photo-ID include:

    • U.S. Passport or Passport Card • An Enhanced Driver's License or Enhanced ID-Card issued by the state of Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License) • A military ID or other government issued Photo-ID card

    Individuals and representatives of organizations who would like to offer comments and suggestions may do so during the meeting. Approximately 15 minutes will be reserved for public comments. Time allotted per speaker will depend on the number who wish to speak but will not exceed 5 minutes. The Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Those wishing to speak should register to do so beginning at 3:45 p.m. on December 12th.

    Those not able to attend the meeting or who have insufficient time to address the committee are invited to send a written statement to Karen Gibson, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, email to [email protected]

    Minutes: The minutes of the meeting will be available on the SEAB Web site or by contacting Ms. Gibson. She may be reached at the postal address or email address above, or by visiting SEAB's Web site at www.energy.gov/seab.

    Issued in Washington, DC, on November 15, 2016. LaTanya R. Butler, Deputy Committee Management Officer.
    [FR Doc. 2016-27937 Filed 11-18-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy Proposed Agency Information Collection Extension AGENCY:

    Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).

    ACTION:

    Submission for Office of Management and Budget (OMB) review; comment request.

    SUMMARY:

    The Department of Energy has submitted to the OMB for clearance, a proposal to amend an information collection request by adding an additional collection to an ICR that already includes two previously approved collections. The two previously approved collections address DOE's Plug-in Electric Vehicle (PEV) Scorecard, and the National Clean Fleets Partnership. DOE is not proposing to expand the scope of these information collection efforts. The proposed new collection is entitled “Ride and Drive Surveys for PEV Showcases”. DOE's Clean Cities initiative has developed a three-part voluntary ride-and-drive survey to assist its coalitions and stakeholders in assessing the level of interest, understanding, and acceptance of PEVs and alternative fuel vehicles (AFV) by the purchasing public. The principal objective of the Survey is to provide DOE and stakeholders with an objective assessment and estimate of how ready the purchasing public is for PEVs, and to help DOE's Clean Cities coalitions prepare for the successful deployment of these vehicles. DOE intends the surveys to be completed by individuals who are participating in one of many ride-and-drive events.

    DATES:

    Comments regarding this proposed information collection must be received on or before December 21, 2016. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.

    ADDRESSES:

    Written comments should be sent to:

    Desk Officer for the Department of Energy, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503.

    And to

    Mr. Dennis Smith, Office of Energy Efficiency and Renewable Energy (EE-3V), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0121, or by fax at 202-586-1600, or by email at [email protected]
    FOR FURTHER INFORMATION CONTACT:

    Mr. Dennis Smith at the address listed above in ADDRESSES.

    SUPPLEMENTARY INFORMATION:

    The amended information collection request contains (1) OMB No. 1910-5171; (2) Information Collection Request Title: Clean Cities Vehicle Programs; (3) Type of Review: Amended collection; (4) Purpose: As part of DOE's Office of Vehicle Technologies 2016 Funding Opportunity Announcement (FOA) awards, DOE is awarding entities funding to run PEV showcases where drivers can experience driving a variety of PEVs and learn about charging electric vehicles. These awards are 50 percent cost share awards, meaning that recipients of an award under this FOA must supply 50 percent of the funds to complete each awarded project. Projects undertaken pursuant to this FOA are expected to include a survey component related to potential vehicle driver behavior. Thus, the DOE Clean Cities program has developed an initiative, the Ride and Drive Surveys for PEV Showcases, that includes a three-part voluntary ride-and-drive survey to assist its coalitions and stakeholders in assessing the level of interest, understanding, and acceptance of AFVs by the purchasing public. The principal objective of the Surveys is to provide DOE and stakeholders with an objective assessment and estimate of how ready the purchasing public is for PEVs, and to help DOE's Clean Cities coalitions prepare for the successful deployment of these vehicles.

    For the Ride and Drive Surveys for PEV Showcases collection, the effort will target public citizens who are participating in one of many Ride-and-Drive events. There are three phases to the Survey: (1) Pre Ride-and-Drive; (2) post Ride-and-Drive; and (3) a few months/some time later to discern if the respondent followed through with acquisition of a PEV or another AFV. Respondents would provide answers in the first two phases through a user-friendly paper survey and on-line survey, and in the third phase they would answer questions via an electronic interface, although a paper survey may be used for those lacking access to an electronic device or computer.

    The Surveys' effort will rely on responses to questions the respondent chooses to answer. The multiple-choice questions will address the following topic areas: (1) Demographics; (2) Current vehicle background; (3) How they learned about ride and drive event; (3) Perceptions of PEVs before and after driving; (4) Post-drive vehicle experience; (5) Purchase expectations; (6) Follow-up survey on purchases; (7) Purchase information; (8) Barriers; and (9) Future intentions.

    DOE expects a total respondent population for the amended collection (which would include the three collections) of approximately 16,250 respondents (an increase of 15,000 over the number of respondents for the two currently approved collections). Selecting the multiple choice answers in completing the three components of the Survey is expected to take 30 minutes, leading to a total burden of approximately 28,250 hours (an increase 2,500 hours above the total burden in hours for the two currently approved collections).

    (5) Type of Respondents: Public; (6) Annual Estimated Number of Respondents for all three information collections: 16,250; (7) Annual Estimated Number of Total Responses: 16,300; (7) Annual Estimated Number of Burden Hours: 28,250 (25,625 for PEV Scorecard, 125 for Clean Fleets Partnership, and 2,500 for the Ride and Drive Surveys for PEV Showcases); and (8) Annual Estimated Reporting and Recordkeeping Cost Burden: There is no cost associated with reporting and recordkeeping.

    Statutory Authority:

    42 U.S.C. 13233; 42 U.S.C. 13252 (a)-(b); 42 U.S.C. 13255.

    Issued in Washington, DC, on November 15, 2016. Michael Berube, Director, Vehicle Technologies Office, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-27939 Filed 11-18-16; 8:45 am] BILLING CODE 6450-01-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9955-42-Region 9] Section 9 Lease Site, Coconino County, AZ; Notice of Proposed CERCLA Settlement Agreement for Recovery of Past Response Costs AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; request for comment.

    SUMMARY:

    In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement with two parties for recovery of response costs concerning the Section 9 Lease Site in Coconino County, Arizona. The settlement is entered into pursuant to Section 122(h)(1) of CERCLA, 42 U.S.C. 9622(h)(1), and it requires the settling parties to pay $230,000 to the United States Environmental Protection Agency (EPA). The settlement includes a covenant not to sue the settling parties for certain costs pursuant to Sections 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a). For thirty (30) days following the date of publication of this Notice in the Federal Register, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 75 Hawthorne Street, San Francisco, CA 94105.

    DATES:

    Pursuant to Section 122(i) of CERCLA, EPA will receive written comments relating to this proposed settlement for thirty (30) days following the date of publication of this Notice in the Federal Register.

    ADDRESSES:

    The proposed settlement is available for public inspection at EPA Region IX, 75 Hawthorne Street, San Francisco, California. A copy of the proposed settlement may be obtained from Joshua Wirtschafter, EPA Region IX, 75 Hawthorne Street, ORC-3, San Francisco, CA 94105, telephone number 415-972-3912. Comments should reference the Section 9 Lease Site, Coconino County, Arizona, and should be addressed to Joshua Wirtschafter at the above address.

    FOR FURTHER INFORMATION CONTACT:

    Joshua Wirtschafter, Assistant Regional Counsel (ORC-3), Office of Regional Counsel, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, C