Federal Register Vol. 81, No.225,

Federal Register Volume 81, Issue 225 (November 22, 2016)

Page Range83623-84387
FR Document

81_FR_225
Current View
Page and SubjectPDF
81 FR 83623 - CorrectionPDF
81 FR 83870 - Final Programmatic Environmental Impact Statement for the 2017-2022 Outer Continental Shelf (OCS) Oil and Gas Leasing ProgramPDF
81 FR 83883 - Notice of Closed Meeting; Sunshine ActPDF
81 FR 83841 - Sunshine Act MeetingPDF
81 FR 83855 - Submission for OMB Review; 30-Day Comment Request; Materials To Support NIH Serving as an IRB of Record or a Single IRB for Outside Institutions (Office of the Director)PDF
81 FR 83862 - 60-Day Notice of Proposed Information Collection: Home Equity Conversion Mortgage (HECM) Insurance Application for the Origination of Reverse Mortgages and Related DocumentsPDF
81 FR 83799 - President's Export Council Subcommittee on Export Administration; Notice of Open MeetingPDF
81 FR 83672 - Indirect Food Additives: Paper and Paperboard ComponentsPDF
81 FR 83706 - Connect America FundPDF
81 FR 83824 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Student Assistance General Provisions-Subpart E-Verification Student Aid Application InformationPDF
81 FR 83798 - Foreign-Trade Zone 163-Ponce, Puerto Rico, Application for Subzone, Best Petroleum Corporation, Toa Baja, Puerto RicoPDF
81 FR 83798 - Foreign-Trade Zone (FTZ) 38-Spartanburg County, South Carolina; Notification of Proposed Production Activity; ZF Transmissions Gray Court, LLC; (Automatic Transmission and Powertrain Subassemblies and Parts, Transmission Shafts and Cranks); Gray Court, South CarolinaPDF
81 FR 83799 - Foreign-Trade Zone 21-Charleston, South Carolina; Application for Subzone; Volvo Car US Operations, Inc.; Ridgeville, South CarolinaPDF
81 FR 83800 - Certain Steel Threaded Rod From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 83799 - Foreign-Trade Zone 115-Beaumont, Texas; Expansion of Subzone 115B; ExxonMobil Oil Corporation; Jefferson and Liberty Counties, TexasPDF
81 FR 83845 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 83830 - Combined Notice of Filings #2PDF
81 FR 83831 - Combined Notice of Filings #1PDF
81 FR 83928 - Notice of Availability of Programmatic Assessment of Greenhouse Gas Emissions From Transit ProjectsPDF
81 FR 83804 - Calcium Hypochlorite From the People's Republic of China: Final Decision To Rescind the New Shipper Review of Haixing Jingmei Chemical Products Sales Co., Ltd.PDF
81 FR 83704 - Spodoptera frugiperdaPDF
81 FR 83701 - Clarification of Requirements for Method 303 Certification TrainingPDF
81 FR 83833 - Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain UsesPDF
81 FR 83625 - Freedom of Information Act RegulationsPDF
81 FR 83811 - Supervisory Highlights: Fall 2016PDF
81 FR 83930 - Submission for OMB Review; Comment RequestPDF
81 FR 83929 - Submission for OMB Review; Comment RequestPDF
81 FR 83825 - Record of Decision for Issuing a Presidential Permit to Minnesota PowerPDF
81 FR 83853 - Solicitation of Written Comments on the Mid-Course Review Working Group Draft Report and Draft Recommendations for Consideration by the National Vaccine Advisory CommitteePDF
81 FR 83715 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota TransferPDF
81 FR 83883 - OMB No. 3206-0233, Civil Service Retirement System Survivor Annuitant Express Pay Application for Death Benefits, OPM Form RI 25-051PDF
81 FR 83801 - Uncovered Innerspring Units From the People's Republic of China: Initiation of Anticircumvention Inquiry on Antidumping Duty OrderPDF
81 FR 83806 - Request for Information Regarding Consumer Access to Financial RecordsPDF
81 FR 83871 - Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
81 FR 83844 - Privacy Act of 1974: Revised Privacy Act System of Records; WithdrawalPDF
81 FR 83836 - Proposal To Adopt the 2010 Small Business Jobs Act Interim Rule as an Alternative Size Standard for Defining a Small Business for Export-Import Bank ProgramsPDF
81 FR 83842 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 83841 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 83831 - Combined Notice of FilingsPDF
81 FR 83832 - Combined Notice of Filings #1PDF
81 FR 83888 - Investor Advisory Committee MeetingPDF
81 FR 83921 - South Carolina Disaster Number SC-00041PDF
81 FR 83921 - North Carolina Disaster Number NC-00081PDF
81 FR 83920 - South Carolina Disaster Number SC-00040PDF
81 FR 83845 - Proposed Data Collection Submitted for Public Comment and Recommendations-Zika Virus Associated Neurologic Illness Case Control Study; CorrectionPDF
81 FR 83822 - TRICARE; Calendar Year 2017 TRICARE Young Adult Program Premium UpdatePDF
81 FR 83921 - North Carolina Disaster Number NC-00086PDF
81 FR 83923 - Discretionary Funding Opportunity: Zero Emission Research OpportunityPDF
81 FR 83822 - Notice of Availability of Government-Owned Inventions; Available for LicensingPDF
81 FR 83822 - Notice of Intent To Grant Partially Exclusive Patent License; Cultural Quotient CorporationPDF
81 FR 83825 - Agency Information Collection Activities; Comment Request; Annual Performance Reports for Title III, Title V, and Title VII GranteesPDF
81 FR 83795 - Pipeline Safety: Meeting of the Gas Pipeline Safety Advisory CommitteePDF
81 FR 83864 - Proposed Habitat Conservation Plan and Draft Environmental Assessment for Streaked Horned Lark; Port of Portland Properties, Portland, OregonPDF
81 FR 83844 - Information Collection; Acquisition of HeliumPDF
81 FR 83715 - Pacific Island Pelagic Fisheries; 2016 Commonwealth of the Northern Mariana Islands Bigeye Tuna Fishery; ClosurePDF
81 FR 83862 - Receipt of an Incidental Take Permit Application To Participate in the Amended American Burying Beetle Oil and Gas Industry Conservation Plan in OklahomaPDF
81 FR 83716 - Fisheries of the Exclusive Economic Zone Off Alaska; Inseason Adjustment to the 2016 Gulf of Alaska Pollock Seasonal ApportionmentsPDF
81 FR 83863 - Endangered Species; Recovery Permit ApplicationsPDF
81 FR 83870 - Notice of Availability of a Draft Environmental Assessment for Alamito and Terneros Sediment and Vegetation Removal Below Presidio Flood Control Project, Presidio, TexasPDF
81 FR 83867 - Notice of Application for Withdrawal and Notification of Public Meeting; MontanaPDF
81 FR 83845 - Determination of Regulatory Review Period for Purposes of Patent Extension; ANAVIPPDF
81 FR 83847 - E11(R1) Addendum: Clinical Investigation of Medicinal Products in the Pediatric Population; International Council for Harmonisation; Draft Guidance for Industry; AvailabilityPDF
81 FR 83849 - Determination of Regulatory Review Period for Purposes of Patent Extension; CORE VALVE SYSTEMPDF
81 FR 83850 - Determination of Regulatory Review Period for Purposes of Patent Extension; RUCONESTPDF
81 FR 83852 - Determination of Regulatory Review Period for Purposes of Patent Extension; CERDELGAPDF
81 FR 83922 - 30-Day Notice of Proposed Information Collection: Self Certification and Ability To Perform in Emergencies (ESCAPE) ProgramPDF
81 FR 83859 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 83858 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 83854 - National Cancer Institute; Notice of Charter RenewalPDF
81 FR 83892 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Limit Order Protection for Members Accessing the Nasdaq Market CenterPDF
81 FR 83902 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Limit Order ProtectionPDF
81 FR 83888 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Introducing NYSE OptXPDF
81 FR 83890 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Introducing NYSE OptXPDF
81 FR 83917 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Limit Order ProtectionPDF
81 FR 83906 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Filing of Proposed Rule Change to Amend the ICE Clear Credit Clearing RulesPDF
81 FR 83884 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Make Non-Controversial and Technical Changes to Exchange RulesPDF
81 FR 83886 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Order Granting Approval of Proposed Rule Change To Delete Outdated or Unnecessary Rule Language in Phlx Rule 1020PDF
81 FR 83899 - Legg Mason ETF Equity Trust, et al.; Notice of ApplicationPDF
81 FR 83915 - Submission for OMB Review; Comment RequestPDF
81 FR 83916 - Proposed Collection; Comment RequestPDF
81 FR 83901 - Submission for OMB Review; Comment RequestPDF
81 FR 83896 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 605 Market Maker OrdersPDF
81 FR 83777 - Medicaid Program; The Use of New or Increased Pass-Through Payments in Medicaid Managed Care Delivery SystemsPDF
81 FR 83823 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; ED School Climate Surveys (EDSCLS) National Benchmark Study 2017 Partial Cancellation Change RequestPDF
81 FR 83805 - Marine Mammals; File No. 18016PDF
81 FR 83929 - Mutual Savings Association Advisory CommitteePDF
81 FR 83883 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service AgreementPDF
81 FR 83714 - Lease and Interchange of Vehicles by Mexico-Domiciled Motor CarriersPDF
81 FR 83868 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Natural Sounds/Quiet Valuation Survey: Focus Group Pre-TestPDF
81 FR 83737 - Special Conditions: Cranfield Aerospace Limited, Cessna Aircraft Company Model 525; Tamarack Load Alleviation System and Cranfield Winglets-Interaction of Systems and StructuresPDF
81 FR 83922 - Post-Accident Reporting (PAR) Advisory Committee Meeting: Public MeetingPDF
81 FR 83923 - Hours of Service of Drivers: American Trucking Associations, Inc. (ATA) Exemption; FAST Act Extension of Compliance DatePDF
81 FR 83842 - Grace Hopper Day HackathonPDF
81 FR 83821 - Submission for OMB Review; Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-RepresentationsPDF
81 FR 83840 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 83839 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 83856 - Proposed Collection; 60-Day Comment Request; Cancer Trials Support Unit (National Cancer Institute)PDF
81 FR 83771 - Approval and Promulgation of Implementation Plans; Louisiana; Revisions to the New Source Review State Implementation Plan; Air Permit Procedure RevisionsPDF
81 FR 83841 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 83838 - Open Commission Meeting, Thursday, November 17, 2016PDF
81 FR 83857 - National Institute on Deafness and Other Communication Disorders; Notice of MeetingPDF
81 FR 83855 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
81 FR 83858 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
81 FR 83858 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 83823 - President's Advisory Commission on Educational Excellence for HispanicsPDF
81 FR 83871 - Chlorinated Isocyanurates From China and SpainPDF
81 FR 83786 - Adding the Polar Ship Certificate to the List of SOLAS Certificates and Certificates Issued by Recognized Classification SocietiesPDF
81 FR 83797 - Dairyland Power Cooperative: Notice of Intent To Prepare an Environmental Impact Statement and Hold Additional Public Scoping MeetingsPDF
81 FR 83744 - Rotorcraft Pilot Compartment View; Extension of Comment PeriodPDF
81 FR 83643 - Revision of the FDIC's Freedom of Information Act RegulationsPDF
81 FR 83655 - Airworthiness Directives; BRP-Powertrain GmbH & Co KG Reciprocating EnginesPDF
81 FR 83882 - Proposed Submission of Information Collections for OMB Review; Comment Request; Payment of Premiums; Termination PremiumPDF
81 FR 83750 - Proposed Establishment of Class E Airspace; Kill Devil Hills, NCPDF
81 FR 83749 - Proposed Establishment of Class E Airspace, Manti, UTPDF
81 FR 83668 - Amendment of Class D and Class E Airspace; Savannah, GAPDF
81 FR 83776 - Notice of Opportunity to Comment on Proposed Denial of Petitions for Rulemaking To Change the RFS Point of ObligationPDF
81 FR 83660 - Airworthiness Directives; Various Restricted Category HelicoptersPDF
81 FR 83669 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 83670 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 83752 - Wine Treating Materials and Related RegulationsPDF
81 FR 83718 - Office of Women's Business Ownership: Women's Business Center ProgramPDF
81 FR 83674 - Native American Housing Assistance and Self-Determination Act; Revisions to the Indian Housing Block Grant Program FormulaPDF
81 FR 83657 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 83653 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
81 FR 83665 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 83745 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 83648 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 83662 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF
81 FR 83687 - Administrative ClaimsPDF
81 FR 83934 - Prepaid Accounts Under the Electronic Fund Transfer Act (Regulation E) and the Truth In Lending Act (Regulation Z)PDF

Issue

81 225 Tuesday, November 22, 2016 Contents Agriculture Agriculture Department See

Rural Utilities Service

AIRFORCE Air Force Department RULES Administrative Claims, 83687-83701 2016-25554 Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau PROPOSED RULES Wine Treating Materials and Related Regulations, 83752-83771 2016-27581 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Prepaid Accounts under the Electronic Fund Transfer Act and the Truth in Lending Act, 83934-84387 2016-24503 NOTICES Requests for Information: Consumer Access to Financial Records, 83806-83811 2016-28086 Supervisory Highlights: Fall 2016, 83811-83821 2016-28094 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Zika Virus Associated Neurologic Illness Case Control Study; Correction, 83845 2016-28072 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicaid Program: Use of New or Increased Pass-Through Payments in Medicaid Managed Care Delivery Systems, 83777-83786 2016-28024 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83845 2016-28107 Coast Guard Coast Guard PROPOSED RULES SOLAS Certificates and Certificates: Addition of Polar Ship Certificate to the List Issued by Recognized Classification Societies, 83786-83795 2016-27989 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Comptroller Comptroller of the Currency NOTICES Meetings: Mutual Savings Association Advisory Committee, 83929 2016-28021 Defense Department Defense Department See

Air Force Department

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Acquisition of Helium, 83844 2016-28062 Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, 83821-83822 2016-28009 TRICARE: Calendar Year 2017 TRICARE Young Adult Program Premium Update, 83822 2016-28071
Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Performance Reports for Title III, Title V, and Title VII Grantees, 83825 2016-28066 ED School National Benchmark Study 2017, 83823-83824 2016-28023 Student Assistance General Provisions, Subpart E—Verification Student Aid Application Information, 83824-83825 2016-28113 Meetings: President's Advisory Commission on Educational Excellence for Hispanics, 83823 2016-27992 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Records of Decisions: Issuing a Presidential Permit to Minnesota Power, 83825-83829 2016-28091
Environmental Protection Environmental Protection Agency RULES Clarification of Requirements for Method 303 Certification Training, 83701-83704 2016-28097 Pesticide Tolerances; Exemptions: Spodoptera frugiperda Multiple Nucleopolyhedrovirus strain 3AP2, 83704-83706 2016-28099 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Louisiana; Revisions to the New Source Review State Implementation Plan; Air Permit Procedure Revisions, 83771-83775 2016-28003 Petitions for Rulemaking to Change the RFS Point of Obligation; Proposed Denials, 83776-83777 2016-27854 NOTICES Requests to Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations to Terminate Certain Uses, 83833-83836 2016-28096 Export Import Export-Import Bank NOTICES Proposal to Adopt the 2010 Small Business Jobs Act Interim Rule as an Alternative Size Standard for Defining a Small Business, 83836-83838 2016-28083 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 83648-83653 2016-25745 Bombardier, Inc. Airplanes, 83653-83655 2016-26618 BRP-Powertrain GmbH and Co KG Reciprocating Engines, 83655-83657 2016-27922 Gulfstream Aerospace Corporation Airplanes, 83662-83665 2016-25743 The Boeing Company Airplanes, 83657-83660, 83665-83667 2016-26614 2016-26621 Various Restricted Category Helicopters, 83660-83662 2016-27767 Class D and E Airspace; Amendments: Savannah, GA, 83668-83669 2016-27856 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures: Miscellaneous Amendments, 83669-83672 2016-27698 2016-27699 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 83745-83749 2016-26164 Class E Airspace; Establishments: Kill Devil Hills, NC, 83750-83752 2016-27859 Manti, UT, 83749-83750 2016-27858 Rotorcraft Pilot Compartment View, 83744-83745 2016-27966 Special Conditions: Cranfield Aerospace Limited, Cessna Aircraft Company Model 525; Tamarack Load Alleviation System and Cranfield Winglets--Interaction of Systems and Structures, 83737-83744 2016-28016 Federal Communications Federal Communications Commission RULES Connect America Fund, 83706-83714 2016-28114 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83839-83841 2016-28001 2016-28005 2016-28007 Meetings: Open Commission, 83838-83839 2016-28000 Federal Deposit Federal Deposit Insurance Corporation RULES Freedom of Information Act Regulations, 83643-83648 2016-27961 Federal Emergency Federal Emergency Management Agency RULES Freedom of Information Act Regulations, 83625-83643 2016-28095 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 83830-83833 2016-28078 2016-28079 2016-28080 2016-28105 2016-28106 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 83841 2016-28170 Federal Motor Federal Motor Carrier Safety Administration RULES Lease and Interchange of Vehicles: Mexico-Domiciled Motor Carriers, 83714 2016-28018 NOTICES Hours of Service of Drivers; Extension of Exemptions: American Trucking Associations, Inc.; FAST Act Extension of Compliance Date, 83923 2016-28014 Meetings: Advisory Committee; Post-Accident Reporting, 83922-83923 2016-28015 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 83842 2016-28082 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 83841-83842 2016-28081 Federal Transit Federal Transit Administration NOTICES Funding Opportunities: Zero Emission Research Opportunity, 83923-83928 2016-28069 Programmatic Assessment of Greenhouse Gas Emissions from Transit Projects, 83928-83929 2016-28104 Fish Fish and Wildlife Service NOTICES Endangered Species Permits; Applications, 83863-83864 2016-28055 Environmental Assessments; Availability, etc.: Streaked Horned Lark; Port of Portland Properties, Portland, OR, 83864-83867 2016-28064 Incidental Take Permits; Applications: Amended Oil and Gas Industry Conservation Plan for the American Burying Beetle; Oklahoma, 83862-83863 2016-28057 Food and Drug Food and Drug Administration RULES Food Additives: Indirect; Paper and Paperboard Components, 83672-83674 2016-28116 NOTICES Determinations of Regulatory Review Periods for Purposes of Patent Extensions: CERDELGA, 83852-83853 2016-28045 CORE VALVE SYSTEM, 83849-83850 2016-28047 RUCONEST, 83850-83852 2016-28046 Guidance: International Council for Harmonisation; E11(R1) Addendum—Clinical Investigation of Medicinal Products in the Pediatric Population, 83847-83848 2016-28048 Patent Extension Regulatory Review Periods: ANAVIP, 83845-83847 2016-28049 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: ZF Transmissions Gray Court, LLC, Foreign-Trade Zone 38, Spartanburg County, SC, 83798 2016-28111 Subzone Expansion; Applications: ExxonMobil Oil Corporation, Subzone 115B, Foreign-Trade Zone 115, Beaumont, TX, 83799 2016-28108 Subzone Status; Applications: Best Petroleum Corp., Foreign-Trade Zone 163, Ponce, PR, 83798-83799 2016-28112 Volvo Car US Operations, Inc., Foreign-Trade Zone 21, Charleston, SC, 83799 2016-28110 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Acquisition of Helium, 83844 2016-28062 Grace Hopper Day Hackathon, 83842-83843 2016-28011 Privacy Act; Systems of Records, 83844-83845 2016-28084 Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, 83821-83822 2016-28009 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Requests for Comments: Mid-Course Review Working Group Draft Report and Draft Recommendations for Consideration by the National Vaccine Advisory Committee, 83853-83854 2016-28090
Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

RULES Freedom of Information Act Regulations, 83625-83643 2016-28095
Housing Housing and Urban Development Department RULES Native American Housing Assistance and Self-Determination Act: Indian Housing Block Grant Program Formula Revisions, 83674-83687 2016-27208 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Home Equity Conversion Mortgage Insurance Application for the Origination of Reverse Mortgages and Related Documents, 83862 2016-28130 Industry Industry and Security Bureau NOTICES Meetings: President's Export Council Subcommittee on Export Administration, 83799-83800 2016-28128 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Ocean Energy Management Bureau

International Boundary International Boundary and Water Commission, United States and Mexico NOTICES Environmental Assessments; Availability, etc.: Alamito and Terneros Sediment and Vegetation Removal below Presidio Flood Control Project, Presidio, TX, 83870-83871 2016-28053 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Calcium Hypochlorite from the People's Republic of China, 83804-83805 2016-28103 Certain Steel Threaded Rod from the People's Republic of China, 83800-83801 2016-28109 Uncovered Innerspring Units from the People's Republic of China, 83801-83804 2016-28087 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Chlorinated Isocyanurates from China and Spain, 83871 2016-27990 Land Land Management Bureau NOTICES Withdrawal of Public Lands; Applications: Montana; Meeting, 83867-83868 2016-28052 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Acquisition of Helium, 83844 2016-28062 Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, 83821-83822 2016-28009 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cancer Trials Support Unit, National Cancer Institute, 83856-83857 2016-28004 Materials to Support NIH Serving as an IRB of Record or a Single IRB for Outside Institutions, 83855-83856 2016-28140 Charter Renewals: National Cancer Institute Council of Research Advocates, 83854 2016-28041 Meetings: Center for Scientific Review, 83858 2016-27994 National Heart, Lung, and Blood Institute, 83855, 83858-83859 2016-27996 2016-27997 National Institute of Allergy and Infectious Diseases, 83858 2016-28042 National Institute on Deafness and Other Communication Disorders, 83857 2016-27998 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Gulf of Alaska Pollock Seasonal Apportionments; Inseason Adjustment, 83716-83717 2016-28056 Fisheries of the Northeastern United States: Atlantic Bluefish Fishery; Quota Transfer, 83715 2016-28089 Pacific Island Pelagic Fisheries: Commonwealth of the Northern Mariana Islands Bigeye Tuna Fishery; Closure, 83715-83716 2016-28061 NOTICES Permits: Marine Mammals; File No. 18016, 83805-83806 2016-28022 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Natural Sounds/Quiet Valuation Survey: Focus Group Pre-Test, 83868-83870 2016-28017 Navy Navy Department NOTICES Exclusive Patent Licenses: Cultural Quotient Corp., 83822-83823 2016-28067 Government-Owned Inventions; Availability for Licensing, 83822 2016-28068 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Facility Operating and Combined Licenses: Applications and Amendments Involving No Significant Hazards Considerations, 83871-83881 2016-28085 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: 2017-2022 Outer Continental Shelf Oil and Gas Leasing Program, 83870 2016-28249 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83882-83883 2016-27866 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Civil Service Retirement System Survivor Annuitant Express Pay Application for Death Benefits, 83883 2016-28088 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Meetings: Pipeline Safety: Gas Pipeline Safety Advisory Committee, 83795-83796 2016-28065 Postal Service Postal Service NOTICES Product Changes: Priority Mail Express, Priority Mail, and First-Class Package Service Negotiated Service Agreement, 83883 2016-28019 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Historically Black Colleges and Universities Week (Proc. 9527), 83623 C1--2016--26070 Railroad Retirement Railroad Retirement Board NOTICES Meetings; Sunshine Act, 83883 2016-28176 Rural Utilities Rural Utilities Service NOTICES Environmental Impact Statements; Availability, etc.: Dairyland Power Cooperative, 83797-83798 2016-27988 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83901, 83915-83917 2016-28026 2016-28027 2016-28028 Applications: Legg Mason Global Asset Management Trust, et al., 83899-83901 2016-28029 Meetings: Dodd-Frank Investor Advisory Committee, 83888 2016-28077 Self-Regulatory Organizations; Proposed Rule Changes: ICE Clear Credit LLC, 83906-83915 2016-28032 ISE Mercury, LLC, 83884-83886 2016-28031 Miami International Securities Exchange LLC, 83896-83899 2016-28025 NASDAQ BX, Inc., 83902-83905 2016-28036 NASDAQ PHLX LLC, 83886-83888, 83917-83920 2016-28030 2016-28033 NYSE Arca, Inc., 83890-83892 2016-28034 NYSE MKT LLC, 83888-83890 2016-28035 The NASDAQ Stock Market LLC, 83892-83896 2016-28037 Small Business Small Business Administration PROPOSED RULES Office of Women's Business Ownership: Women's Business Center Program, 83718-83737 2016-27376 NOTICES Disaster Declarations: North Carolina; Amendment 1, 83921 2016-28070 North Carolina; Amendment 13, 83921 2016-28075 South Carolina; Amendment 2, 83921 2016-28076 South Carolina; Amendment 4, 83920-83921 2016-28073 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Self Certification and Ability to Perform in Emergencies Program, 83922 2016-28044 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83859-83862 2016-28043 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Alcohol and Tobacco Tax and Trade Bureau

See

Comptroller of the Currency

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 83929-83931 2016-28092 2016-28093
Customs U.S. Customs and Border Protection RULES Freedom of Information Act Regulations, 83625-83643 2016-28095 Separate Parts In This Issue Part II Bureau of Consumer Financial Protection, 83934-84387 2016-24503 Reader Aids

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81 225 Tuesday, November 22, 2016 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 5 U.S. Customs and Border Protection 19 CFR Part 103 Federal Emergency Management Agency 44 CFR Part 5 [Docket No. DHS-2009-0036] RIN 1601-AA00 Freedom of Information Act Regulations AGENCY:

Office of the Secretary, U.S. Customs and Border Protection, and Federal Emergency Management Agency, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

This rule amends the Department's regulations under the Freedom of Information Act (FOIA). The regulations have been revised to update and streamline the language of several procedural provisions, and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007. Additionally, the regulations have been updated to reflect developments in the case law.

DATES:

This rule is effective December 22, 2016.

FOR FURTHER INFORMATION CONTACT:

James V.M.L. Holzer, Deputy Chief FOIA Officer, DHS Privacy Office, (202) 343-1743.

SUPPLEMENTARY INFORMATION: I. Background

The Secretary of Homeland Security has authority under 5 U.S.C. 301, 552, and 552a, and 6 U.S.C. 112(e), to issue FOIA and Privacy Act regulations. On January 27, 2003, the Department of Homeland Security (Department or DHS) published an interim rule in the Federal Register (68 FR 4056) that established DHS procedures for obtaining agency records under the FOIA, 5 U.S.C. 552, or Privacy Act, 5 U.S.C. 552a. DHS solicited comments on this interim rule, but received none.

In 2005, Executive Order 13392 called for the designation of a Chief FOIA Officer and FOIA Public Liaisons, along with the establishment of FOIA Requester Service Centers as appropriate. Subsequently, the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), Public Law 110-175, required agencies to designate a Chief FOIA Officer who is then to designate one or more FOIA Public Liaisons (5 U.S.C. 552(j) and 552(k)(6)). Sections 6, 7, 9, and 10 of the OPEN Government Act amended provisions of the FOIA by setting time limits for agencies to act on misdirected requests and limiting the tolling of response times (5 U.S.C. 552(a)(6)(A)); requiring tracking numbers for requests that will take more than 10 days to process (5 U.S.C. 552(a)(7)(A)); providing requesters a telephone line or Internet service to obtain information about the status of their requests, including an estimated date of completion (5 U.S.C. 552(a)(7)(B)); expanding the definition of “record” to include records “maintained for an agency by an entity under Government contract, for the purposes of records management” (5 U.S.C. 552(f)(2)); and introducing alternative dispute resolution to the FOIA process through FOIA Public Liaisons (5 U.S.C. 552(a)(6)(B)(ii) & (l)) and the Office of Government Information Services (5 U.S.C. 552(h)(3)).

On July 29, 2015, the Department of Homeland Security published a proposed rule to amend existing regulations under the FOIA. See 80 FR 45101.1 DHS accepted comments on the proposed rule through September 28, 2015. Finally, on June 30, 2016, the President signed into law the FOIA Improvement Act of 2016, Public Law 114-185, into law. DHS is now issuing a final rule that responds to public comments on the proposed rule and incorporates a number of changes required by the FOIA Improvement Act of 2016.

1 Except as explicitly stated below, DHS incorporates by reference the section-by-section analysis contained in the preamble to the proposed rule.

II. Discussion of Final Rule A. Non-Discretionary Changes Required by the FOIA Improvement Act of 2016

In compliance with the FOIA Improvement Act of 2016, DHS has made the following changes to the proposed rule text: 2

2 Although these changes represent departures from the proposed rule text, DHS for good cause finds that advance notice and an opportunity for public comment are not necessary in connection with these changes. See 5 U.S.C. 553(b)(B). Notice-and-comment is unnecessary because these changes simply reflect the current state of the law, consistent with the 2016 Act, and because these changes constitute a procedural rule exempt from notice-and-comment requirements under 5 U.S.C. 553(b)(A).

DHS has revised proposed CFR 5.8(a)(1), “Requirements for filing an appeal,” to change the current appeals period from 60 days to 90 days as required by section 2(1)(C) of the Act. DHS has also provided further clarification regarding the timely receipt of electronic submissions.

DHS has added 6 CFR 5.11(d)(3) to incorporate the portion of the Act that restricts an agency's ability to charge certain fees. Specifically, section 2(1)(B) of the Act provides that an agency may continue to charge fees as usual for an untimely response only if: A court has determined that exceptional circumstances exist, or (1) the requester has been timely advised of unusual circumstances, (2) more than 5000 pages are necessary to respond to the request, and (3) the component has contacted the requester (or made at least three good-faith attempts) about ways to narrow or revise the scope of the request. DHS has incorporated this requirement into this final rule without change.

DHS has removed a reference in proposed 6 CFR 5.1(a)(2) that referenced the agency's nonbinding policy to disclose exempt information when the agency reasonably foresees that disclosure would not harm an interest protected by an exemption. Because section 2(1)(D) of the Act codifies a substantially similar standard in law, DHS is eliminating the proposed statement of policy to avoid confusion.

DHS has revised proposed 6 CFR 5.2 to conform to section 2(1)(A)(i) of the Act, which strikes a reference to public records that must be made available “for public inspection and copying,” and inserts in its place a reference to public records that must be made available “for public inspection in an electronic format” (emphasis added).

Finally, DHS has also revised proposed 6 CFR 5.5(c), 5.6(c), and 5.6(e) to conform to requirements in section 2(1)(C) of the Act, which require the agency to notify requesters of the availability of the Office of Government Information Services (OGIS) and the agency's FOIA Public Liaison to provide dispute resolution services.

B. Response to Comments and Other Changes From the Proposed Rule

In total, DHS received fifteen public submissions to its proposed rule, including one submission from another agency. DHS has given due consideration to each of the comments received and has made several modifications to the rule, as discussed in greater detail below. Below, DHS summarizes and responds to the significant comments received.3 DHS has grouped the comments by section.

3 DHS also received a broad range of supportive comments with respect to a number of the rule's provisions. In the interest of brevity, DHS has not summarized all of the supportive comments below.

1. Comments on Proposed 6 CFR 5.1 (General Provisions) and 5.2 (Proactive Disclosures of DHS Records)

DHS proposed to revise 6 CFR 5.1 and 5.2 to, among other things, eliminate redundant text and incorporate reference to additional DHS policies and procedures relevant to the FOIA process. Two commenters suggested that the Department retain text in original 6 CFR 5.1(a)(1), which provides that information routinely provided to the public as part of a regular Department activity (for example, press releases) may be provided to the public without following the DHS FOIA regulations. The commenters stated that they opposed DHS's proposed removal of that language because not all DHS FOIA officers and FOIA personnel understand that such information is to be provided routinely. The commenters also stated that retaining the language would promote greater consistency in FOIA review. The Department has considered this suggestion and has determined that the revised language at 6 CFR 5.2 on proactive disclosure of department records adequately replaces the language in original 6 CFR 5.1(a)(1). The revised language provides for posting of records required to be made available to the public, as well as additional records of interest to the public that are appropriate for public disclosure (such as press releases). The Department has made considerable efforts across the components to ensure that records appropriate for public disclosure are proactively posted in agency reading rooms.

One commenter suggested that proposed 6 CFR 5.1(a)(1) be amended to reflect that the 1987 OMB guidelines referenced in the paragraph would only apply to the extent they are consistent with subsequent statutory changes. As is the case with any statutory change, if the law changes and the regulation or guidance is no longer consistent with the law, then DHS will comply with the law: In this case, changes in the statute would override the OMB guidelines. DHS declines to make this change, because it is self-evident that DHS only complies with OMB guidelines to the extent they are consistent with the governing statute.

Finally, upon further consideration of the proposed rule text, DHS has made a number of clarifying edits to proposed 6 CFR 5.1(a)(1). Because this content is adequately covered in 6 CFR 5.10, DHS has removed much of the discussion of this topic in 6 CFR 5.1(a)(1).

2. Comments on Proposed 6 CFR 5.3 (Requirements for Making Requests)

One commenter suggested that DHS retain the current 6 CFR 5.3(a), which requires requests for information about third-party individuals be accompanied by signed authorizations from the subject of the information. The commenter argued that removing the requirement for signed authorizations could harm individual privacy. However, the subject language in proposed 6 CFR 5.3(a)(4) brings the DHS regulation more into line with the language used by many other government agencies, including the Department of Justice, which provides interagency leadership on FOIA matters. See 28 CFR 16.3. In addition, final section 5.3(a)(4) makes plain the importance of third-party authorization. And as a matter of established case law, in conducting the balancing test between privacy interest and the public interest in disclosure of personal information, DHS will weigh the existence or non-existence of a signed authorization on a case-by-case basis; in many, but not all cases, the lack of a signed authorization may prove to be a barrier to access of third-party records unless a significant public interest is raised. As such, DHS declines to alter the proposed language.

The same commenter suggested that a caveat be included allowing access to the records of public officials without signed authorization because this would facilitate access to information about government officials. As noted above, DHS considers every request seeking access to third party information under a balancing test that evaluates the privacy of the individual subject of the records against the public interest in disclosing such information. Depending on the information sought, some of the records of government officials may be available without the need for a signed authorization. However, all records of all government officials will not meet the requirements of the balancing test. Therefore, DHS declines to create a blanket policy to waive the personal privacy interests of government officials in their records.

As proposed, 6 CFR 5.3(c) would allow DHS to administratively close a request that does not adequately describe the records, if the requester does not respond within 30 days to DHS's request for additional information. One commenter requested that DHS clarify how DHS may make such a request (e.g., by telephone or in writing or both), how a requester may respond, and whether a written response would be considered timely if it were postmarked or transmitted electronically within 30 days. DHS has revised the regulatory text to make clear that each communication must be in writing (physical or electronic) and that a written response would be considered timely if it were postmarked within 30 working days or transmitted electronically and received by 11:59:59 p.m. ET on the 30th working day.

Proposed 6 CFR 5.3(c) provided for administrative closure if the requester fails to provide an adequate description of the records sought within 30 days of DHS's request for such a description. A commenter suggested amending this section to provide that an inadequately described request may lose priority in the processing queue until the requester provides an adequate description, but will not be administratively closed. For purposes of placement in the processing queue, an unperfected request (i.e. a request that requires additional clarification or other information in order for the agency or component to process the request) is not considered to be in the queue. As a result, the unperfected request has no “priority” in the processing queue. Under this rule, DHS will continue to place a request into the queue for processing only after the request is perfected. DHS believes that this outcome is the fairest to all requesters, because unperfected requests place a heavy administrative burden on DHS to track and process. A policy to process all such requests would result in a reduction in service for other requesters.

One commenter suggested amending proposed 6 CFR 5.3 to provide that if a requester fails to respond to a request for clarification within 30 days, the agency or component should make an effort to contact the requester using more than one means of communication, before administratively closing the request. The commenter stated that if the requester ultimately responds after the 30-day deadline, DHS should not place the clarified requested at the end of the processing line, but should reopen the request and place it back in the processing queue as though the request had been was perfected on the date when the original request was filed. The commenter stated that this outcome would be consistent with DOJ guidance on “still interested” letters. DHS declines to commit to always seeking further clarification following the 30-day deadline. This would be inconsistent with the purpose of the 30-day deadline. And for the reasons described earlier in this preamble, DHS also declines to deem responses perfected retrospectively. DHS notes that DOJ's guidance on “still interested” letters is unrelated to agency requests for clarification.4 DHS also notes that proposed 6 CFR 5.3 does not contain an exhaustive list of reasons for administratively closing a request; for example, a request may be administratively closed at the request of the entity or individual that made the request. Pending requests may also be closed if DHS learns that a requester is deceased.

4 A “still interested” letter is a letter that the agency sends to a requester if a substantial period of time has elapsed since the time when the request was submitted and is used as a method to make sure that the requester continues to seek the original information. A requester may respond to a “still interested” letter by indicating that she or he continues to be interested in the original information sought, seek to modify his or her request, or indicate that he or she is no longer interested in the request.

A commenter suggested that DHS commit to always seek additional information from a requester before administratively closing the request. The commenter stated that this would ensure that FOIA officials do not simply close a request without explanation. DHS recognizes that requesters may have difficulty formulating proper FOIA requests and as such, has provided information and resources to aid requesters in drafting proper FOIA requests. Resources permitting, DHS will attempt to seek additional clarification rather than administratively close requests, but out of fairness to other requesters, in the interest of efficiency, and consistent with its historical practice and the practice of other agencies, DHS will not impose an affirmative requirement to seek additional information or clarification in every instance. DHS has clarified 6 CFR 5.3(c) to this end. DHS notes that it does not administratively close requests without any explanation.

Another commenter proposed to extend the deadline for clarification to 30 business days rather than 30 calendar days. The commenter stated that a 30-business-day deadline would “conform to the Department of Justice's recommended deadline with respect to `still-interested' letters.” DHS agrees with the commenter that 30 working days is more appropriate. DHS has therefore extended the clarification period from 30 calendar days to 30 working days. This has the additional benefit of being consistent with the separate 30-working-day deadline in DOJ's recommended guidelines on still-interested letters.

One commenter suggested amending proposed 6 CFR 5.3(c) to allow for 60 days, rather than 30 days, after a request for clarification and before administrative closure. The commenter stated that the change was necessary because of “inevitable delays in processing outgoing communications from federal agencies.” The commenter stated that many journalists are often on assignment without access to physical mail or email for days and weeks at a time, and that “a 30-day window could unfairly jeopardize the processing of their FOIA requests in the event that a DHS component requests a clarification, requiring them to unnecessarily re-submit requests, and delaying their access to requested records. Extending the response time to 60 days does not impose any additional burden on DHS components, but would assist requesters.” While DHS recognizes that certain requesters may have some difficulty responding to a request for clarification within a specified time period, in the interest of not creating additional administrative burdens, DHS has determined that the 30-working-day time period established by this rule strikes the appropriate balance. DHS notes that an administrative closure of an unperfected request does not prevent the requester from resubmitting the request at a future date, and that since an unperfected request is by definition not placed in the processing queue, there is no negative impact on a requester with respect to losing their place in the queue if a requester needs to submit a revised request.

A commenter suggested that DHS limit the use of administrative closure to those circumstances described in proposed section 5.3(c), and not administratively close requests based on any other grounds. The commenter specifically stated that DHS sometimes administratively closes cases based on a requester's failure to respond to a “still interested” letter, and that the use of still-interested letters “place[s] a significant an unwarranted burden on FOIA requesters that runs counter to FOIA.” The commenter also stated that the proposed rule did not include provision for administratively closing a FOIA request based on the requester's failure to respond to a “still interested” letter, and suggested that DHS should not introduce new regulatory text on “still-interested” letters in the final rule, because the proposal did not afford commenters a sufficient opportunity to comment on this topic. DHS disagrees that it lacks authority to administratively close requests on grounds that are not referenced in its FOIA regulations. For example, although DHS regulations do not provide for the administrative closure of a request at the requester's election, DHS may administratively close such a request. This example is very similar to the use of “still interested” letters, described earlier in this preamble.

One commenter suggested that the text of proposed 6 CFR 5.3 be amended to state that when a request is clear on its face that it is being made by an attorney on behalf of a client, no further proof of the attorney-client relationship would be required. The commenter stated that DHS inconsistently requires attorneys for requesters provide documentation of the attorney-client relationship in the form of (1) a signed DHS Form G-28, (2) a signed statement on the letterhead of the entity for which the FOIA request is being made, or (3) a signed statement from the actual requester. The commenter stated that such documentation should not be required where the FOIA request clearly states that it is being made by an attorney on behalf of a client. DHS is unable to make this modification. DHS analyzes third-party requests for records under both the Privacy Act and the FOIA. As part of this process, DHS determines if the records are being sought with the consent of the subject of the records. Without proper documentation, DHS is unable to assess whether a third party, be it an attorney or other representative of the subject of the records, is properly authorized to make a Privacy Act request for the records. Without authorization, DHS applies a balancing test to determine whether the personal privacy interests of the individual outweigh the public interest in disclosure of such records, which may result in a denial of access to third party requests that are not accompanied with proper signed authorization.

3. Comments on Proposed 6 CFR 5.4 (Responsibility for Responding to Requests)

One commenter suggested amending proposed 6 CFR 5.4(d), which pertains to interagency consultations, to clarify the extent to which consultations may also be required with the White House. The commenter stated that “[t]o promote transparency,” the final rule should “address [DHS's] FOIA-related consultations with the Office of White House Counsel.” Consultations occur on a case-by-case basis and depend on the specific information that may be revealed in a request. Depending on the specific request at issue, DHS and its components consult with entities throughout state, local, and federal government, including the White House. An attempt to catalogue every possible consultation would be impracticable, and would be inconsistent with the overall goal of streamlining the regulations. DHS therefore declines to make this suggested change.

One commenter stated that DHS should always notify the requester of referrals because DHS had not substantiated its claim that merely naming the agency to which a FOIA request had been referred could “harm an interest protected by an applicable exemption.” The commenter also stated that proposed 6 CFR 5.4(f) mistakenly referenced referral of records, rather than requests. The commenter stated that “referrals do not entail referrals of records, but instead implicate requests.” DHS and its components make every effort to notify requesters when records are referred to other components. A referral differs from a consultation in several ways, but most significantly to the requester, when records are referred to another agency, the receiving agency is the entity that will ordinarily respond directly to the requester unless such a response might compromise a law enforcement or intelligence interest. DHS and its components have a very broad mission space that includes law enforcement and intelligence functions. As such, there may be times when DHS is unable to disclose the referral of records from one component to another or from a DHS component to another agency due to law enforcement and/or intelligence concerns. As such, DHS declines to make this a mandatory requirement.5 Finally, the reference to “records” at the end of proposed 6 CFR 5.4(f) was intentional. In general, when DHS makes a referral to another agency, it is referring responsive records to that agency, rather than referring the request itself without records.

5 For more information on consultations and referrals, please see the Memorandum from DHS Chief FOIA Office Mary Ellen Callahan to DHS FOIA Officers, DHS Freedom of Information Act Policy Guidance: (1) Processing “Misdirected” FOIA Requests; and (2) Implementation of the Department of Justice Office of Information Policy (OIP) December 2011 OIP Guidance: Referrals, Consultations, and Coordination: Procedures for Processing Records When Another Agency or Entity Has an Interest in Them (Mar. 9, 2012), available at https://www.dhs.gov/sites/default/files/publications/dhs-foia-handling-guidance_1.pdf.

4. Comments on Proposed 6 CFR 5.5(e)(3) and 5.11(b)(6) (Timing of Responses to Requests and Fees, With Respect to News Media)

Five commenters suggested amendments to the proposed language of 6 CFR 5.5(e)(3) and 5.11(b)(6) to make the definition of news media less restrictive. Commenters felt that it would be difficult or cumbersome for certain requesters to establish that news dissemination was their “primary professional activity.” In response, DHS has eliminated the requirement in proposed 5.5(e)(3) that a requester seeking expedited processing establish that he or she engages in information dissemination as his or her primary professional activity. DHS has also removed the “organized and operated” restriction. These changes are consistent with existing case law.6

6See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015)

One commenter also proposed that DHS eliminate the requirement in proposed 6 CFR 5.11(b)(6) that news be broadcast to the “public at large” and that periodicals qualify for news media status only if their products are available to the general public. The commenter suggested that the proposed rule should make clear that no particular audience size was required. The reference to the “public at large” and the “general public” are merely exemplary and do not act as hard-and-fast restrictions. The standard identified in the final rule, as revised in response to public comments, allows DHS to classify a requester as a member of the news media on a case-by-case basis without a rigid requirement of audience size.

One commenter proposed that DHS eliminate the availability of expedited processing for the news media. As the FOIA statute clearly contemplates expedited processing for news media, DHS is unable to eliminate this provision.

5. Comments on Proposed 6 CFR 5.6 (Responses to Requests)

Two commenters requested that the language of proposed 6 CFR 5.6 be amended to include a statement that there is a “presumption in favor of disclosure.” The first commenter sought inclusion of the language based upon memoranda issued by the President Obama and Attorney General, respectively.7 The second commenter also cited the model civil society FOIA rules as the basis for requesting the additional language. DHS operates in accordance with guidance promulgated by the Department of Justice, including Attorney General Holder's 2009 memorandum which urged agencies to “adopt a presumption in favor of disclosure.” DHS FOIA regulations are intended to inform and advise the public about DHS operations and procedures for processing FOIA requests. Because proposed 6 CFR 5.6 deals strictly with the administrative steps of processing a FOIA request, and because the Department already adheres to the direction in the memoranda without relying on additional regulatory text, the Department declines to make this suggested change.

7See 74 FR 4683 (Jan. 26, 2009); Memorandum from the Attorney General to the Heads of Executive Departments and Agencies, The Freedom of Information Act (FOIA) (Mar. 19, 2009), available at https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf.

One commenter suggested that the regulations specify greater use of electronic means of communication by DHS components to allow the electronic filing of FOIA requests to avoid the delay and uncertainty occasioned by first-class mail. The Department already encourages the electronic filing of FOIA requests and the service is available for all components through the DHS FOIA portal at www.dhs.gov/steps-file-foia or through the DHS mobile application (available for both iOS and Android platforms). The Department has incorporated language into 6 CFR 5.6(a) which specifies that DHS components should use electronic means of communicating with requesters whenever practicable.

One commenter proposed changing the language of 6 CFR 5.6(b) to state that DHS will assign a request a tracking number if processing the request would take longer than ten calendar days, rather than ten working days as the proposed rule provided. The commenter stated that the FOIA statute specified “calendar” days rather than working days. The FOIA statute provides only that a tracking number be assigned if the request will take longer than “ten days”, 5 U.S.C. 552(a)(7)(A), and is silent on the issue of working or calendar days. However, in light of the use of working days to determine the twenty-day time limitations for original responses and responses to appeals (which specify twenty days “excepting Saturdays, Sundays, and legal public holidays” 5 U.S.C. 552(a)(6)(A)(i) and (ii)), DHS has also implemented 5 U.S.C. 552(a)(7)(A) using a working days standard. For clarification, working days refers to weekdays (Monday through Friday), and not legal holidays and weekends (Saturday and Sunday).

One commenter suggested that the initial acknowledgment letter contain information on how to file an administrative appeal because if DHS fails to provide a timely response to the FOIA request, a requester is entitled to file an administrative appeal or seek judicial review. The commenter stated that in cases of constructive denial, the requester would not be informed how to administratively appeal the constructive denial. DHS declines to add the appeals language to the initial acknowledgment letter. While DHS acknowledges that in situations of constructive denial, a requester may seek to file an administrative appeal, at the time the initial letter is sent, there is no adverse determination from which to appeal, which may serve to confuse members of the public. In addition. DHS provides information on how to file an appeal on its Web site (https://www.dhs.gov/foia-appeals-mediation), and information is always available by contacting the DHS Privacy Office or any of the component FOIA officers via U.S. mail, electronic mail, or by telephone. Contact information for DHS FOIA officers can be found at the following link: https://www.dhs.gov/foia-contact-information.

One commenter suggested that proposed 6 CFR 5.6(d) be amended to exclude language that characterizes as an “adverse determination” the agency's determination that a “request does not reasonably describe the records sought.” The commenter stated that the language would allow DHS components to deny FOIA requests based on inadequate descriptions of records sought, rather than seeking more information from requesters. As provided in proposed 6 CFR 5.3, DHS components try to obtain clarification from requesters by use of “needs more information” letters and contacting requesters via telephone or electronic mail to seek additional information. In many, but not all, circumstances the additional information is sufficient to allow DHS to process the request. However, if DHS ultimately administratively closes a request, DHS treats such a closure as an adverse determination from which the requester can seek administrative appeal.

One commenter suggested that proposed 6 CFR 5.6(g) be amended to specifically prohibit DHS from making a “false” response to a request when DHS determines that the request falls within 5 U.S.C. 552(c). Section 5.6(g) was intended to provide notice that records determined to be properly subject to an exclusion are not considered to be responsive to the FOIA request because excluded records, by law, “are not subject to the requirements of [the FOIA].” 5 U.S.C. 552(c). By definition, when DHS determines that an exclusion under 552(c) applies, any documents would no longer be subject to FOIA and DHS's statement to a requester of such fact could not be considered “false”. While the commenter would prefer that the agency make a “Glomar” response, that is, refuse to confirm or deny the existence of responsive records, the FOIA statutory scheme clearly allows agencies to utilize an exclusion when the situation is appropriate. And as proposed 6 CFR 5.6(g) and 5 U.S.C. 552(c) make clear, once an agency lawfully applies an exclusion, the excluded records are not responsive to the request. Accordingly, DHS is maintaining the language as proposed.

6. Comments on Proposed 6 CFR 5.7 (Confidential Commercial Information)

One commenter suggested that proposed 6 CFR 5.7 be amended to require “a more detailed notification” to the requester when the agency denies a FOIA request on the basis of FOIA exemption 4. FOIA exemption 4 protects trade secrets and commercial or financial information obtained from a person that is privileged or confidential. The commenter stated that requiring more detail would “ensure that the requester can properly obtain judicial review.” DHS already strives to provide as much information as possible to a requester when a request for information is denied. DHS must weigh the requester's need for information against the interests of the submitter of the information; particularly where the information is being withheld as confidential commercial information, it may be impossible for DHS to provide additional information without revealing information that DHS would be required to protect under FOIA Exemption 4. As such, DHS declines to make this suggested change.

Another commenter suggested that DHS revise proposed 6 CFR 5.7(e) and (g) to specify the minimum number of days that will be afforded to submitters to provide comments and file reverse-FOIA lawsuits. The commenter stated that establishing such a standard would prevent the agency from inconsistently interpreting the requirement to provide a “reasonable” period of time. DHS agrees that it is appropriate to set a minimum number of days. Accordingly, this final rule specifies that submitters will have a minimum of 10 working days to provide comments. DHS may provide a longer time period, at its discretion. Further, submitters will be given a minimum of 10 working days' notice if information is to be disclosed over their objection. The same commenter also sought clarification of whether “submitter” as used in proposed 6 CFR 5.7 was the same as “business submitter” as used in proposed 6 CFR 5.12(a). Section 5.12 applies only to CBP operations and should be read independently from 6 CFR 5.7.

7. Comments on Proposed 6 CFR 5.8 (Administrative Appeals)

As noted above, based upon requirements in the FOIA Improvement Act of 2016, DHS has changed the appeals period from 60 working days to 90 working days.

One commenter suggested that proposed 6 CFR 5.8(a)(1) be amended to state that appeals will be considered timely if delivered within 60 working days of an adverse determination. An adverse determination can refer to any outcome which the requester seeks to appeal. The commenter stated that the proposed regulations do not specify with enough certainty when the 60 workdays begin to run for purposes of filing an administrative appeal. The proposed rule already considered appeals to be timely if the appeal is postmarked, or transmitted in the case of electronic submissions, within 90 workdays of the date of the component's response. DHS considers the postmark rule to be clear and more favorable to appealing requesters. DHS therefore will not require delivery within 90 days of the notice of an adverse determination. However, in the interests of clarifying the exact time period, DHS has added language to reflect that an electronically transmitted appeal will be considered timely if transmitted to the appeals officer by 11:59:59 p.m. ET or EDT of the 90th working day following the date of an adverse determination on a FOIA request.

An agency commenter suggested that proposed 6 CFR 5.8(c) be amended to clarify that DHS and its components will participate in mediation with the Office of Government Information Services, National Archives and Records Administration, should a requester elect to mediate any dispute related to a FOIA request. DHS reaffirms its commitment to actively participate in mediation should any FOIA requester seek to resolve a dispute and has added language to this section to reflect such.

One commenter suggested that proposed 6 CFR 5.8(d) be amended to clarify that the time period for response to an appeal may not be extended for greater than 10 days. DHS considers this amendment to be unnecessary as the statute clearly does not provide for extensions beyond a single 10-day period.

One commenter suggested amending proposed 6 CFR 5.8(e) to clarify that judicial review is available without pursuing administrative appeal where a request has been constructively denied through agency inaction. DHS has determined that this proposed change is unnecessary as the FOIA statute itself provides judicial review of constructive denial without the necessity of administrative exhaustion.

8. Comments on Proposed 6 CFR 5.9 (Preservation of Records) or 5.10 (FOIA Requests for Information Contained in a Privacy Act System of Records)

No comments requiring agency response were received regarding proposed 6 CFR 5.9 or 5.10.

9. Comments on Proposed 6 CFR 5.11 (Fees)

Several public submissions contained comments regarding the Department's assessment of fees. As a general matter, the Department notes that the fee provisions are written to conform to the OMB Guidelines, which establish uniform standards for fee matters. Conformity with the OMB Guidelines is required by the FOIA. See 5 U.S.C. 552(a)(4)(A)(i).

DHS has revised the “Definitions” section of proposed 6 CFR 5.11(b) by inserting the word “primarily” before “commercial interest” to more accurately conform to the statutory language of the FOIA. Consistent with other provisions of the proposed rule, the change clarifies that fee waivers are available to requesters even if they have a commercial interest as long as the requester can show a public interest in the information and that the primary interest in the information is not commercial.

One commenter suggested that DHS retain the definition of “commercial use request” in current 6 CFR 5.11(b)(1) instead of the proposed revisions because the commenter felt that the proposed regulation significantly broadened DHS's discretion in determining whether a request is commercial in nature. The DHS definition of “commercial use request” conforms to the definition promulgated by DOJ in its FOIA regulations. DHS has not changed the definition of a commercial request and continues to rely on the same definition in the current interim regulations at 6 CFR 5.11 that “a commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which include furthering those interests through litigation.”

The same commenter opposed the removal of the requirement that “the component shall provide a reasonable opportunity to submit further clarification.” The proposed changes do not require DHS to seek further clarification from a requester, but rather allow each component to make a case-by-case determination, which may, in the agency's discretion, include seeking further information from the requester regarding the purpose for the request. This change comports with the DHS proposed regulation at 6 CFR 5.3(c), which gives the agency discretion to determine which requests will be the subject of requests for clarification in the event the request is insufficient. Requiring DHS to seek further information would increase the administrative burden on the agency and prejudice other requesters. The final rule text reflects the need to allow components to assess the intended purpose of each request on a case-by-case basis. As such, DHS declines to make any changes to this language.

One commenter suggested that DHS retain the broader definition of “educational institution” in current 6 CFR 5.11(b)(4) because the proposed definition of educational institution would exclude students enrolled in educational institutions that make FOIA requests in furtherance of their own research. DHS agrees and has changed the proposed definition of educational institutions to include students seeking FOIA requests to further their own scholarly research by eliminating the example which had excluded such requesters from categorization as educational institutions. The revisions are also consistent with Sack v. Dep't of Defense, 823 F.3d 687 (D.C. Cir. 2016).

Several commenters sought revision of the definition in proposed 6 CFR 5.11(b)(6) of “news media.” This issue is discussed earlier in this preamble, under the section for comments on proposed 6 CFR 5.5.

One commenter suggested amending proposed 6 CFR 5.11(e) to clarify that a non-commercial requester that does not pay fees or declines to pay an estimated fee would still be eligible for two hours of search time without charge. The commenter sought the change because they stated that there was disagreement between agencies about whether or not such requesters would be entitled to the two free hours of search times under such circumstances. DHS has added language to section 5.11(e)(1) to make this more clear; the fee table at proposed 6 CFR 5.11(k)(6) also contains this information.

One commenter suggested that DHS eliminate proposed 6 CFR 5.11(k)(5), concerning the closure of requests where the required advance fee payment has not been received within 30 days. The commenter stated that the requirement of advance payment posed an additional financial barrier to accessing information, particularly in light of DHS's proposed redefinition of educational institutions to exclude students making FOIA requests in furtherance of their own educational coursework. As noted above, DHS has already addressed the concern about students being excluded from the definition of educational request. Regarding the remainder of the commenter's suggestion that DHS eliminate the closure of requests for which the required advance fee payment has not been timely received, DHS declines to make this change. While DHS recognizes that this requirement may impose a burden on some requesters, DHS has a strong interest in maintaining the integrity of the administrative process. As numerous court decisions have noted, government agencies are not required to process requests for free for those requesters that do not qualify for a fee waiver regardless of the requester's ability to pay the estimated fee. Further, the FOIA statute itself allows agencies to collect advance payment of fees when the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250. 5 U.S.C. 552(a)(4)(A)(v).

10. Comments on Proposed 6 CFR 5.12 (Confidential Commercial Information; CBP Procedures)

One commenter stated that the second sentence of proposed 6 CFR 5.12(a) was redundant in that it provided that “commercial information that CBP [U.S. Customs and Border Protection] determines is privileged or confidential . . . will be treated as privileged or confidential.” DHS has determined that this language is not redundant because there may be information that a submitter deems privileged and confidential that does not meet the criteria established by CBP. The text identified by the commenter serves to clarify to submitters that only information that CBP has deemed “privileged or confidential” will be treated as such by the agency. The same commenter also sought clarification of whether the term “business submitter” used in proposed 6 CFR 5.12 was the same as the definition of “submitter” used in proposed 6 CFR 5.7. As DHS noted above in the section covering comments on proposed 6 CFR 5.7, these sections are to be read independently and definitions may not be interchangeable.

11. Other Comments

One commenter stated that he had previously submitted FOIA requests to DHS on behalf of his small business, and that DHS had extended the estimated delivery date of its responses without providing notice or a reason, and that his requests had been sent to the wrong offices and subsequently terminated because found to be duplicative. The commenter asserted, without further elaboration, that delays in FOIA processing imposed direct costs on a small business he represented. The commenter also stated that DHS has a large backlog of FOIA requests. The commenter requested that DHS provide additional economic and small entity analysis related to the costs of FOIA processing delays and the proposed rule, and that “once these have been completed . . . DHS reopen the comment period for at least 60 days for public comment.” The commenter stated that “[i]t is inconceivable that the current backlog has not imposed costs on small and large businesses under this proposal.” The commenter requested DHS develop an estimate of the quantifiable costs and benefits of the rule and also complete a Regulatory Flexibility Act analysis of the impacts of the rule on small entities. The commenter also submitted two related comments regarding specific interactions he had in submitting FOIA requests to two DHS components, the Transportation Security Administration (TSA), and CBP. Those two comments included a list of eight questions related to the TSA request and 11 questions related to the CBP request, which the commenter requested be addressed in an economic analysis.

Much of the commenter's submission is well outside the scope of the proposed rule, which was intended primarily to update and streamline regulatory text to reflect intervening statutory and other changes. For example, the commenter raised specific issues with previous FOIA requests to DHS components (whether a specific FOIA request was closed properly and changes in a delivery date with another FOIA request). The delay costs associated with past DHS processing of a past FOIA request or the impacts of the current backlog are by definition not due to any changes made in this rule and therefore are not direct costs of this rule. Issues regarding specific pending or historical FOIA requests are more properly addressed to the component's FOIA office and not as comments to the FOIA proposed rule. Regarding the commenter's request for an assessment of the quantified costs and benefits of the rule and a Regulatory Flexibility Act analysis, DHS did consider the costs, benefits and impacts of the proposed rule on small entities. The proposed rule's Executive Orders 12866 and 13563 analysis and Regulatory Flexibility Act both reflect DHS's consideration of the economic impacts of the proposed rule, as well as DHS's conclusion that the proposed rule would not impose additional costs on the public or the government. DHS affirmatively stated that (1) the proposed rule would not collect additional fees compared to current practice or otherwise introduce new regulatory mandates, (2) the benefits of the rule included additional clarity for the public, and (3) regarding the impacts on small entities, the proposed rule did not impose additional direct costs on small entities. See 80 FR 45104 for this discussion of costs, benefits, and small entity impacts. DHS notes the commenter did not identify any specific provisions of the proposed rule that he believed would lead to delays in FOIA processing or otherwise increase costs as compared to FOIA current procedures, or suggest any alternatives to the proposed rule that would result in increased efficiencies. The proposed rule did not invite an open-ended search for any and all potential changes to DHS FOIA regulations that might potentially result in processing improvements; the rule's economic analysis reflects full consideration of the limited changes included in the proposed rule.8

8 Alternatively, to the extent the commenter implies that DHS FOIA regulations are primarily responsible for processing delays, misdirected FOIA requests, or other challenges associated with FOIA processing, DHS finds the commenter's views completely unsupported, and likely incorrect. DHS is unaware of any study of its FOIA processing challenges that cites flaws in existing regulations as a major causal factor. See http://www.gao.gov/products/GAO-15-82 and http://www.gao.gov/products/GAO-12-828.

One commenter suggested that the regulation be amended to allow individuals protected by the confidentiality provisions in the Violence Against Women Act (VAWA) as amended, 42 U.S.C. 13701 and 8 U.S.C. 1367, to submit FOIA requests for their own information without that information subsequently being made public. DHS agrees with the commenter that this sensitive information should not be made public. But DHS believes the commenter's concerns are misplaced, because DHS does not apply the “release to one, release to all” policies of FOIA to first-party requests for personal information. DHS will not release to the public information covered by the aforementioned authorities subsequent to a first-party request for that his or her own information.

One commenter suggested that proactive disclosure include automatic disclosure of alien files to individuals in removal proceedings. The Department has determined that automatic disclosure of alien files to all individuals in removal proceedings falls well outside of the scope of the proposed rule and FOIA generally, and therefore will not be addressed here.

Finally, one commenter sought inclusion of a proposed section 5.14, which would require DHS to review records to determine if the release of information contained in records would be in the public interest “because it is likely to contribute significantly to public understanding of the operations or activities of the DHS.” As provided in proposed 6 CFR 5.2, DHS already proactively posts certain Department records it determines are of interest to the public. In addition, DHS generally follows the rule that records are publicly posted after the Department has received three requests for such records. DHS also recently participated in a DOJ pilot program which sought to examine the feasibility of posting all requested records as long as no privacy interests were implicated. Proactive review and posting of records, whether they are the subject of FOIA requests or not, is a time and resource intensive undertaking. DHS will continue to examine the feasibility of expanding the public posting of records, but due to practical and operational concerns, cannot divert resources away from the processing of FOIA requests to devote the additional resources that would be required to comply with the scope of proactive posting suggested by this comment. As such, DHS declines to incorporate this proposed new section.

III. Regulatory Analyses Executive Orders 12866 and 13563—Regulatory Review

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

DHS has considered the costs and benefits of this rule. This rule will not introduce new regulatory mandates. In the proposed rule we stated that this rule would not result in additional costs on the public or the government. As explained above, some commenters raised concerns about the potential burden associated with a streamlined process for administratively closing unclear requests, though none offered a quantified estimate of that burden. We continue to believe that DHS's general assessment of the economic impacts of this rule, as stated in the proposed rule, is accurate. DHS does acknowledge that there will be a limited number of cases, however, in which this rule will result in some requesters clarifying and resubmitting a request, rather than simply clarifying a request. DHS believes that the burden associated with resubmitting a request would be minimal, because requesters that are required to resubmit requests that lack sufficient information or detail to allow DHS to respond are required to submit the same information as requesters that are required to provide clarification (i.e., information that will supplement the information provided with the original request such that DHS can reasonably identify the records the requester is seeking and process the request). Since both sets of requesters must provide additional information in writing to allow the agency to process their requests, it is difficult to quantify any additional cost associated with resubmission as compared to clarification. The rule's benefits include additional clarity for the public and DHS personnel with respect to DHS's implementation of the FOIA and subsequent statutory amendments.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). 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. DHS has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. DHS does not believe this rule imposes any additional direct costs on small entities. However, as explained in the previous Executive Orders 12866 and 13563 section, it is possible that an entity that resubmits a request might incur a slightly different impact than one that clarifies a request. Such a cost difference would be so minimal it would be difficult to quantify. DHS further notes that although one commenter stated that he found the proposed rule's regulatory flexibility certification “challenging,” no commenter stated the proposed rule would cause a significant economic impact on a substantial number of small entities, or provided any comments suggesting such an impact on a substantial number of small entities. Based on the previous analysis and the comments on the proposed rule, DHS certifies this rule will not have a significant economic impact on a substantial number of small entities.

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 $100,000,000 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.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

List of Subjects 6 CFR Part 5

Classified information, Courts, Freedom of information, Government employees, Privacy.

19 CFR Part 103

Administrative practice and procedure, Confidential business information, Courts, Freedom of information, Law enforcement, Privacy, Reporting and recordkeeping requirements.

44 CFR Part 5

Courts, Freedom of information, Government employees.

For the reasons stated in the preamble, the Department of Homeland Security amends 6 CFR chapter I, part 5, 19 CFR chapter I, part 103, and 44 CFR chapter I, part 5, as follows:

Title 6—Domestic Security PART 5—DISCLOSURE OF MATERIAL OR INFORMATION 1. The authority citation for part 5 is revised to read as follows: Authority:

5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 101 et seq.; E.O. 13392.

2. Revise subpart A of part 5 to read as follows: Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act Sec. 5.1 General provisions. 5.2 Proactive disclosures of DHS records. 5.3 Requirements for making requests. 5.4 Responsibility for responding to requests. 5.5 Timing of responses to requests. 5.6 Responses to requests. 5.7 Confidential commercial information. 5.8 Administrative appeals. 5.9 Preservation of records. 5.10 FOIA requests for information contained in a Privacy Act system of records. 5.11 Fees. 5.12 Confidential commercial information; CBP procedures. 5.13 Other rights and services. Appendix I to Subpart A—FOIA Contact Information Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act
§ 5.1 General provisions.

(a)(1) This subpart contains the rules that the Department of Homeland Security follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended.

(2) The rules in this subpart should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget at 52 FR 10012 (March 27, 1987) (hereinafter “OMB Guidelines”). Additionally, DHS has additional policies and procedures relevant to the FOIA process. These resources are available at http://www.dhs.gov/freedom-information-act-foia. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subpart B of part 5 as well as under this subpart.

(b) As referenced in this subpart, component means the FOIA office of each separate organizational entity within DHS that reports directly to the Office of the Secretary.

(c) DHS has a decentralized system for processing requests, with each component handling requests for its records.

(d) Unofficial release of DHS information. The disclosure of exempt records, without authorization by the appropriate DHS official, is not an official release of information; accordingly, it is not a FOIA release. Such a release does not waive the authority of the Department of Homeland Security to assert FOIA exemptions to withhold the same records in response to a FOIA request. In addition, while the authority may exist to disclose records to individuals in their official capacity, the provisions of this part apply if the same individual seeks the records in a private or personal capacity.

§ 5.2 Proactive disclosure of DHS records.

Records that are required by the FOIA to be made available for public inspection in an electronic format are accessible on DHS's Web site, http://www.dhs.gov/freedom-information-act-foia-and-privacy-act. Each component is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each component shall ensure that posted records and indices are updated on an ongoing basis. Each component has a FOIA Public Liaison who can assist individuals in locating records particular to a component. A list of DHS's FOIA Public Liaisons is available at http://www.dhs.gov/foia-contact-information and in appendix I to this subpart. Requesters who do not have access to the internet may contact the Public Liaison for the component from which they seek records for assistance with publicly available records.

§ 5.3 Requirements for making requests.

(a) General information. (1) DHS has a decentralized system for responding to FOIA requests, with each component designating a FOIA office to process records from that component. All components have the capability to receive requests electronically, either through email or a web portal. To make a request for DHS records, a requester should write directly to the FOIA office of the component that maintains the records being sought. A request will receive the quickest possible response if it is addressed to the FOIA office of the component that maintains the records sought. DHS's FOIA Reference Guide contains or refers the reader to descriptions of the functions of each component and provides other information that is helpful in determining where to make a request. Each component's FOIA office and any additional requirements for submitting a request to a given component are listed in Appendix I of this subpart. These references can all be used by requesters to determine where to send their requests within DHS.

(2) A requester may also send his or her request to the Privacy Office,

U.S. Department of Homeland Security, 245 Murray Lane SW STOP-0655, or via the internet at http://www.dhs.gov/dhs-foia-request-submission-form, or via fax to (202) 343-4011. The Privacy Office will forward the request to the component(s) that it determines to be most likely to maintain the records that are sought.

(3) A requester who is making a request for records about him or herself must comply with the verification of identity provision set forth in subpart B of this part.

(4) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual, in compliance with the verification of identity provision set forth in subpart B of this part, or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual, authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of its administrative discretion, each component can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.

(b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable DHS personnel to locate them with a reasonable amount of effort. A reasonable description contains sufficient information to permit an organized, non-random search for the record based on the component's filing arrangements and existing retrieval systems. To the extent possible, requesters should include specific information that may assist a component in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Requesters should refer to Appendix I of this subpart for additional component-specific requirements. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before submitting their requests, requesters may contact the component's FOIA Officer or FOIA public liaison to discuss the records they are seeking and to receive assistance in describing the records. If after receiving a request, a component determines that it does not reasonably describe the records sought, the component should inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the component's designated FOIA Officer, its FOIA Public Liaison, or a representative of the DHS Privacy Office, each of whom is available to assist the requester in reasonably describing the records sought.

(c) If a request does not adequately describe the records sought, DHS may at its discretion either administratively close the request or seek additional information from the requester. Requests for clarification or more information will be made in writing (either via U.S. mail or electronic mail whenever possible). Requesters may respond by U.S. Mail or by electronic mail regardless of the method used by DHS to transmit the request for additional information. In order to be considered timely, responses to requests for additional information must be postmarked or received by electronic mail within 30 working days of the postmark date or date of the electronic mail request for additional information or received by electronic mail by 11:59:59 p.m. ET on the 30th working day. If the requester does not respond to a request for additional information within thirty (30) working days, the request may be administratively closed at DHS's discretion. This administrative closure does not prejudice the requester's ability to submit a new request for further consideration with additional information.

§ 5.4 Responsibility for responding to requests.

(a) In general. Except in the instances described in paragraphs (c) and (d) of this section, the component that first receives a request for a record and maintains that record is the component responsible for responding to the request. In determining which records are responsive to a request, a component ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the component shall inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), shall not be considered responsive to a request.

(b) Authority to grant or deny requests. The head of a component, or designee, is authorized to grant or to deny any requests for records that are maintained by that component.

(c) Re-routing of misdirected requests. Where a component's FOIA office determines that a request was misdirected within DHS, the receiving component's FOIA office shall route the request to the FOIA office of the proper component(s).

(d) Consultations, coordination and referrals. When a component determines that it maintains responsive records that either originated with another component or agency, or which contains information provided by, or of substantial interest to, another component or agency, then it shall proceed in accordance with either paragraph (d)(1), (2), or (3) of this section, as appropriate:

(1) The component may respond to the request, after consulting with the component or the agency that originated or has a substantial interest in the records involved.

(2) The component may respond to the request after coordinating with the other components or agencies that originated the record. This may include situations where the standard referral procedure is not appropriate where disclosure of the identity of the component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement component responding to a request for records on a living third party locates records within its files originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a component locates material within its files originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component that received the request should coordinate with the originating component or agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the component that originally received the request.

(3) The component may refer the responsibility for responding to the request or portion of the request to the component or agency best able to determine whether to disclose the relevant records, or to the agency that created or initially acquired the record as long as that agency is subject to the FOIA. Ordinarily, the component or agency that created or initially acquired the record will be presumed to be best able to make the disclosure determination. The referring component shall document the referral and maintain a copy of the records that it refers.

(e) Classified information. On receipt of any request involving classified information, the component shall determine whether information is currently and properly classified and take appropriate action to ensure compliance with 6 CFR part 7. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another component or agency under any applicable executive order concerning the classification of records, the receiving component shall refer the responsibility for responding to the request regarding that information to the component or agency that classified the information, or should consider the information for classification. Whenever a component's record contains information classified by another component or agency, the component shall coordinate with or refer the responsibility for responding to that portion of the request to the component or agency that classified the underlying information.

(f) Notice of referral. Whenever a component refers any part of the responsibility for responding to a request to another component or agency, it will notify the requester of the referral and inform the requester of the name of each component or agency to which the records were referred, unless disclosure of the identity of the component or agency would harm an interest protected by an applicable exemption, in which case the component should coordinate with the other component or agency, rather than refer the records.

(g) Timing of responses to consultations and referrals. All consultations and referrals received by DHS will be handled according to the date that the FOIA request initially was received by the first component or agency, not any later date.

(h) Agreements regarding consultations and referrals. Components may establish agreements with other components or agencies to eliminate the need for consultations or referrals with respect to particular types of records.

(i) Electronic records and searches-(1) Significant interference. The FOIA allows components to not conduct a search for responsive documents if the search would cause significant interference with the operation of the component's automated information system.

(2) Business as usual approach. A “business as usual” approach exists when the component has the capability to process a FOIA request for electronic records without a significant expenditure of monetary or personnel resources. Components are not required to conduct a search that does not meet this business as usual criterion.

(i) Creating computer programs or purchasing additional hardware to extract email that has been archived for emergency retrieval usually are not considered business as usual if extensive monetary or personnel resources are needed to complete the project.

(ii) Creating a computer program that produces specific requested fields or records contained within a well-defined database structure usually is considered business as usual. The time to create this program is considered as programmer or operator search time for fee assessment purposes and the FOIA requester may be assessed fees in accordance with § 5.11(c)(1)(iii). However, creating a computer program to merge files with disparate data formats and extract specific elements from the resultant file is not considered business as usual, but a special service, for which additional fees may be imposed as specified in § 5.11. Components are not required to perform special services and creation of a computer program for a fee is up to the discretion of the component and is dependent on component resources and expertise.

(3) Data links. Components are not required to expend DHS funds to establish data links that provide real time or near-real-time data to a FOIA requester.

§ 5.5 Timing of responses to requests.

(a) In general. Components ordinarily will respond to requests according to their order of receipt. Appendix I to this subpart contains the list of components that are designated to accept requests. In instances involving misdirected requests that are re-routed pursuant to § 5.4(c), the response time will commence on the date that the request is received by the proper component, but in any event not later than ten working days after the request is first received by any DHS component designated in appendix I of this subpart.

(b) Multitrack processing. All components must designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (e) of this section. A component may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors a component may consider are the number of pages involved in processing the request or the need for consultations or referrals. Components shall advise requesters of the track into which their request falls, and when appropriate, shall offer requesters an opportunity to narrow their request so that the request can be placed in a different processing track.

(c) Unusual circumstances. Whenever the statutory time limits for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component extends the time limits on that basis, the component shall, before expiration of the twenty-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds ten working days, the component shall, as described by the FOIA, provide the requester with an opportunity to modify the request or agree to an alternative time period for processing. The component shall make available its designated FOIA Officer and its FOIA Public Liaison for this purpose. The component shall also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.

(d) Aggregating requests. For the purposes of satisfying unusual circumstances under the FOIA, components may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. Components will not aggregate multiple requests that involve unrelated matters.

(e) Expedited processing. (1) Requests and appeals will be processed on an expedited basis whenever the component determines that they involve:

(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person who is primarily engaged in disseminating information;

(iii) The loss of substantial due process rights; or

(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.

(2) A request for expedited processing may be made at any time. Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section must be submitted to the component that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the DHS Office of General Counsel or the component Appeals Officer. Address information is available at the DHS Web site, http://www.dhs.gov/freedom-information-act-foia, or by contacting the component FOIA officers via the information listed in Appendix I. Requests for expedited processing that are based on paragraph (e)(1)(iv) of this section must be submitted to the Senior Director of FOIA Operations, the Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW STOP-0655, Washington, DC 20598-0655. A component that receives a misdirected request for expedited processing under the standard set forth in paragraph (e)(1)(iv) of this section shall forward it immediately to the DHS Senior Director of FOIA Operations, the Privacy Office, for determination. The time period for making the determination on the request for expedited processing under paragraph (e)(1)(iv) of this section shall commence on the date that the Privacy Office receives the request, provided that it is routed within ten working days, but in no event shall the time period for making a determination on the request commence any later than the eleventh working day after the request is received by any component designated in appendix I of this subpart.

(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that he or she is a person who primarily engages in information dissemination, though it need not be his or her sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful to establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement.

(4) A component shall notify the requester within ten calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.

§ 5.6 Responses to requests.

(a) In general. Components should, to the extent practicable, communicate with requesters having access to the Internet using electronic means, such as email or web portal.

(b) Acknowledgments of requests. A component shall acknowledge the request and assign it an individualized tracking number if it will take longer than ten working days to process. Components shall include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.

(c) Grants of requests. Ordinarily, a component shall have twenty (20) working days from when a request is received to determine whether to grant or deny the request unless there are unusual or exceptional circumstances. Once a component makes a determination to grant a request in full or in part, it shall notify the requester in writing. The component also shall inform the requester of any fees charged under § 5.11 and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The component shall inform the requester of the availability of its FOIA Public Liaison to offer assistance.

(d) Adverse determinations of requests. A component making an adverse determination denying a request in any respect shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees, including requester categories or fee waiver matters, or denials of requests for expedited processing.

(e) Content of denial. The denial shall be signed by the head of the component, or designee, and shall include:

(1) The name and title or position of the person responsible for the denial;

(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request;

(3) An estimate of the volume of any records or information withheld, for example, by providing the number of pages or some other reasonable form of estimation. This estimation is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and

(4) A statement that the denial may be appealed under § 5.8(a), and a description of the requirements set forth therein.

(5) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS.

(f) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part shall be marked to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted also shall be indicated on the record, if technically feasible.

(g) Use of record exclusions. (1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the FOIA office of that component must confer with Department of Justice's Office of Information Policy (OIP) to obtain approval to apply the exclusion.

(2) Any component invoking an exclusion shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP.

§ 5.7 Confidential commercial information.

(a) Definitions—(1) Confidential commercial information means commercial or financial information obtained by DHS from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.

(2) Submitter means any person or entity from whom DHS obtains confidential commercial information, directly or indirectly.

(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

(c) When notice to submitters is required. (1) A component shall promptly provide written notice to a submitter whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the component determines that it may be required to disclose the records, provided:

(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

(ii) The component has a reason to believe that the requested information may be protected from disclosure under Exemption 4.

(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.

(d) Exceptions to submitter notice requirements. The notice requirements of paragraphs (c) and (g) of this section shall not apply if:

(1) The component determines that the information is exempt under the FOIA;

(2) The information lawfully has been published or has been officially made available to the public;

(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or

(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.

(e) Opportunity to object to disclosure. (1) A component will specify a reasonable time period, but no fewer than 10 working days, within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide the component a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret, or commercial or financial information that is privileged or confidential.

(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component after the date of any disclosure decision will not be considered by the component. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

(f) Analysis of objections. A component shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

(g) Notice of intent to disclose. Whenever a component decides to disclose information over the objection of a submitter, the component shall provide the submitter written notice, which shall include:

(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;

(2) A description of the information to be disclosed; and

(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice, but no fewer than 10 working days.

(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component shall promptly notify the submitter.

(i) Requester notification. The component shall notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.

(j) Scope. This section shall not apply to any confidential commercial information provided to CBP by a business submitter. Section 5.12 applies to such information. Section 5.12 also defines “confidential commercial information” as used in this paragraph.

§ 5.8 Administrative appeals.

(a) Requirements for filing an appeal. (1) A requester may appeal adverse determinations denying his or her request or any part of the request to the appropriate Appeals Officer. A requester may also appeal if he or she questions the adequacy of the component's search for responsive records, or believes the component either misinterpreted the request or did not address all aspects of the request (i.e., it issued an incomplete response), or if the requester believes there is a procedural deficiency (e.g., fees were improperly calculated). For the address of the appropriate component Appeals Officer, contact the applicable component FOIA liaison using the information in appendix I to this subpart, visit www.dhs.gov/foia, or call 1-866-431-0486. An appeal must be in writing, and to be considered timely it must be postmarked or, in the case of electronic submissions, transmitted to the Appeals Officer within 90 working days after the date of the component's response. An electronically filed appeal will be considered timely if transmitted to the Appeals Officer by 11:59:59 p.m. ET or EDT on the 90th working day. The appeal should clearly identify the component determination (including the assigned request number if the requester knows it) that is being appealed and should contain the reasons the requester believes the determination was erroneous. To facilitate handling, the requester should mark both the letter and the envelope, or the transmittal line in the case of electronic transmissions “Freedom of Information Act Appeal.”

(2) An adverse determination by the component appeals officer will be the final action of DHS.

(b) Adjudication of appeals. (1) The DHS Office of the General Counsel or its designee (e.g., component Appeals Officers) is the authorized appeals authority for DHS;

(2) On receipt of any appeal involving classified information, the Appeals Officer shall consult with the Chief Security Officer, and take appropriate action to ensure compliance with 6 CFR part 7;

(3) If the appeal becomes the subject of a lawsuit, the Appeals Officer is not required to act further on the appeal.

(c) Appeal decisions. The decision on the appeal will be made in writing. A decision that upholds a component's determination will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services, of the National Archives and Records Administration, as a non-exclusive alternative to litigation. Should the requester elect to mediate any dispute related to the FOIA request with the Office of Government Information Services, DHS and its components will participate in the mediation process in good faith. If the adverse decision is reversed or modified on appeal, in whole or in part, the requester will be notified in a written decision and the request will be thereafter be further processed in accordance with that appeal decision.

(d) Time limit for issuing appeal decision. The statutory time limit for responding to appeals is generally 20 working days after receipt. However, the Appeals Officer may extend the time limit for responding to an appeal provided the circumstances set forth in 5 U.S.C. 552(a)(6)(B)(i) are met.

(e) Appeal necessary before seeking court review. If a requester wishes to seek court review of a component's adverse determination on a matter appealable under paragraph (a)(1) of this section, the requester must generally first appeal it under this subpart. However, a requester is not required to first file an appeal of an adverse determination of a request for expedited processing prior to seeking court review.

§ 5.9 Preservation of records.

Each component shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 and/or 14 of the National Archives and Records Administration. Records will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

§ 5.10 FOIA requests for information contained in a Privacy Act system of records.

(a) Information subject to Privacy Act. (1) If a requester submits a FOIA request for information about him or herself that is contained in a Privacy Act system of records applicable to the requester (i.e., the information contained in the system of records is retrieved by the component using the requester's name or other personal identifier, and the information pertains to an individual covered by the Privacy Act) the request will be processed under both the FOIA and the Privacy Act.

(2) If the information the requester is seeking is not subject to the Privacy Act (e.g., the information is filed under another subject, such as an organization, activity, event, or an investigation not retrievable by the requester's name or personal identifier), the request, if otherwise properly made, will be treated only as a FOIA request. In addition, if the information is covered by the Privacy Act and the requester does not provide proper verification of the requester's identity, the request, if otherwise properly made, will be processed only under the FOIA.

(b) When both Privacy Act and FOIA exemptions apply. Only if both a Privacy Act exemption and a FOIA exemption apply can DHS withhold information from a requester if the information sought by the requester is about him or herself and is contained in a Privacy Act system of records applicable to the requester.

(c) Conditions for release of Privacy Act information to third parties in response to a FOIA request. If a requester submits a FOIA request for Privacy Act information about another individual, the information will not be disclosed without that person's prior written consent that provides the same verification information that the person would have been required to submit for information about him or herself, unless—

(1) The information is required to be released under the FOIA, as provided by 5 U.S.C. 552a (b)(2); or

(2) In most circumstances, if the individual is deceased.

(d) Privacy Act requirements. See DHS's Privacy Act regulations in 5 CFR part 5, subpart B for additional information regarding the requirements of the Privacy Act.

§ 5.11 Fees.

(a) In general. Components shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. Components will ordinarily use the most efficient and least expensive method for processing requested records. In order to resolve any fee issues that arise under this section, a component may contact a requester for additional information. A component ordinarily will collect all applicable fees before sending copies of records to a requester. If you make a FOIA request, it shall be considered a firm commitment to pay all applicable fees charged under § 5.11, up to $25.00, unless you seek a waiver of fees. Requesters must pay fees by check or money order made payable to the Treasury of the United States.

(b) Definitions. Generally, “requester category” means one of the three categories in which agencies place requesters for the purpose of determining whether a requester will be charged fees for search, review and duplication; categories include commercial requesters, noncommercial scientific or educational institutions or news media requesters, and all other requesters. The term “fee waiver” means that processing fees will be waived, or reduced, if a requester can demonstrate that certain statutory standards are satisfied including that the information is in the public interest and is not requested for a primarily commercial interest. For purposes of this section:

(1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. A component's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information.

(2) Direct costs are those expenses that an agency expends in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.

(3) Duplication is reproducing a copy of a record or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.

(4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. Components may seek verification from the requester that the request is in furtherance of scholarly research.

Example 1.

A request from a professor of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution if the request adequately describes how the requested information would further a specific research goal of the educational institution.

Example 2.

A request from the same professor of geology seeking immigration information from the U.S. Immigration and Customs Enforcement in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.

Example 3.

A student who makes a request in furtherance of their coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.

Note:

These examples are provided for guidance purposes only. Each individual request will be evaluated under the particular facts, circumstances, and information provided by the requester.

(5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and not for a commercial use.

(6) Representative of the news media is any person or entity that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including but not limited to, news organizations that disseminate solely on the Internet. A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use. In contrast, data brokers or others who merely compile and market government information for direct economic return shall not be presumed to be news media entities. “Freelance” journalists must demonstrate a solid basis for expecting publication through a news media entity in order to be considered as working for a news media entity. A publication contract would provide the clearest evidence that publication is expected; however, components shall also consider a requester's past publication record in making this determination.

(7) Review is the page-by-page, line-by-line examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 5.7 or § 5.12, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(8) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve information from electronic records. Components shall ensure that searches are done in the most efficient and least expensive manner reasonably possible by readily available means.

(c) Charging fees. In responding to FOIA requests, components shall charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, unless otherwise stated in § 5.11, components should not add any additional costs to those charges.

(1) Search. (i) Search fees shall be charged for all requests subject to the restrictions of paragraph (d) of this section. Components may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.

(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be as follows: Managerial—$10.25; professional—$7.00; and clerical/administrative—$4.00.

(iii) Requesters will be charged the direct costs associated with conducting any search that requires the creation of a new computer program, as referenced in section 5.4, to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.

(iv) For requests that require the retrieval of records stored by an agency at a federal records center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.

(2) Duplication. Duplication fees will be charged to all requesters, subject to the restrictions of paragraph (d) of this section. A component shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the component in the form or format requested. Where photocopies are supplied, the component will provide one copy per request at a cost of ten cents per page. For copies of records produced on tapes, disks, or other media, components will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, components will charge the direct costs.

(3) Review. Review fees will be charged to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by a component to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, when the appellate authority determines that a particular exemption no longer applies, any costs associated with a component's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.

(d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media, unless the records are sought for a commercial use.

(2) If a component fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in (d)(2)(i) through (iii).

(i) If a component has determined that unusual circumstances as defined by the FOIA apply and the component provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.

(ii) If a component has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, a component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The component must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the component must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.

(iii) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.

(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.

(4) Except for requesters seeking records for a commercial use, components will provide without charge:

(i) The first 100 pages of duplication (or the cost equivalent for other media); and

(ii) The first two hours of search.

(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $14.00 or less for any request, no fee will be charged.

(e) Notice of anticipated fees in excess of $25.00. (1) When a component determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the component shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review and/or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the component shall advise the requester accordingly. If the requester is a noncommercial use requester, the notice will specify that the requester is entitled to his or her statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided. Two hours of search time will be provided free of charge to non-commercial requesters regardless of whether they agree to pay estimated fees.

(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees he or she is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with his or her statutory entitlements, designates that he or she seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. Components are not required to accept payments in installments.

(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component will toll the processing of the request while it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees he or she is willing to pay and/or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.

(4) Components will make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

(f) Charges for other services. Although not required to provide special services, if a component chooses to do so as a matter of administrative discretion, the direct costs of providing the service will be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.

(g) Charging interest. Components may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the component. Components will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

(h) Aggregating requests. When a component reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the component may aggregate those requests and charge accordingly. Components may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, components will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

(i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) and (3) of this section, a component shall not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.

(2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.

(3) Where a requester has previously failed to pay a properly charged FOIA fee to any component or agency within 30 calendar days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request and the component may require that the requester make an advance payment of the full amount of any anticipated fee, before the component begins to process a new request or continues to process a pending request or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.

(4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination, the request will be closed.

(j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the component will inform the requester of the contact information for that source.

(k) Requirements for waiver or reduction of fees. (1) Records responsive to a request shall be furnished without charge or at a reduced rate below that established under paragraph (c) of this section, where a component determines, on a case-by-case basis, based on all available information, that the requester has demonstrated that:

(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and

(ii) Disclosure of the information is not primarily in the commercial interest of the requester.

(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, components will consider the following factors:

(i) The subject of the request must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.

(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public's understanding.

(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.

(iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent. However, components shall not make value judgments about whether the information at issue is “important” enough to be made public.

(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following factors:

(i) Components shall identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.

(ii) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. Components ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.

(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.

(5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester will be required to pay any costs incurred up to the date the fee waiver request was received.

(6) Summary of fees. The following table summarizes the chargeable fees (excluding direct fees identified in § 5.11) for each requester category.

Category Search fees Review fees Duplication fees Commercial-use Yes Yes Yes. Educational or Non-Commercial Scientific Institution No No Yes (100 pages free). News Media No No Yes (100 pages free). Other requesters Yes (2 hours free) No Yes (100 pages free).
§ 5.12 Confidential commercial information; CBP procedures.

(a) In general. For purposes of this section, “commercial information” is defined as trade secret, commercial, or financial information obtained from a person. Commercial information provided to CBP by a business submitter and that CBP determines is privileged or confidential commercial or financial information will be treated as privileged or confidential and will not be disclosed pursuant to a Freedom of Information Act request or otherwise made known in any manner except as provided in this section.

(b) Notice to business submitters of FOIA requests for disclosure. Except as provided in paragraph (b)(2) of this section, CBP will provide business submitters with prompt written notice of receipt of FOIA requests or appeals that encompass their commercial information. The written notice will describe either the exact nature of the commercial information requested, or enclose copies of the records or those portions of the records that contain the commercial information. The written notice also will advise the business submitter of its right to file a disclosure objection statement as provided under paragraph (c)(1) of this section. CBP will provide notice to business submitters of FOIA requests for the business submitter's commercial information for a period of not more than 10 years after the date the business submitter provides CBP with the information, unless the business submitter requests, and provides acceptable justification for, a specific notice period of greater duration.

(1) When notice is required. CBP will provide business submitters with notice of receipt of a FOIA request or appeal whenever:

(i) The business submitter has in good faith designated the information as commercially- or financially-sensitive information. The business submitter's claim of confidentiality should be supported by a statement by an authorized representative of the business entity providing specific justification that the information in question is considered confidential commercial or financial information and that the information has not been disclosed to the public; or

(ii) CBP has reason to believe that disclosure of the commercial information could reasonably be expected to cause substantial competitive harm.

(2) When notice is not required. The notice requirements of this section will not apply if:

(i) CBP determines that the commercial information will not be disclosed;

(ii) The commercial information has been lawfully published or otherwise made available to the public; or

(iii) Disclosure of the information is required by law (other than 5 U.S.C. 552).

(c) Procedure when notice given. (1) Opportunity for business submitter to object to disclosure. A business submitter receiving written notice from CBP of receipt of a FOIA request or appeal encompassing its commercial information may object to any disclosure of the commercial information by providing CBP with a detailed statement of reasons within 10 days of the date of the notice (exclusive of Saturdays, Sundays, and legal public holidays). The statement should specify all the grounds for withholding any of the commercial information under any exemption of the FOIA and, in the case of Exemption 4, should demonstrate why the information is considered to be a trade secret or commercial or financial information that is privileged or confidential. The disclosure objection information provided by a person pursuant to this paragraph may be subject to disclosure under the FOIA.

(2) Notice to FOIA requester. When notice is given to a business submitter under paragraph (b)(1) of this section, notice will also be given to the FOIA requester that the business submitter has been given an opportunity to object to any disclosure of the requested commercial information.

(d) Notice of intent to disclose. CBP will consider carefully a business submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose commercial information. Whenever CBP decides to disclose the requested commercial information over the objection of the business submitter, CBP will provide written notice to the business submitter of CBP's intent to disclose, which will include:

(1) A statement of the reasons for which the business submitter's disclosure objections were not sustained;

(2) A description of the commercial information to be disclosed; and

(3) A specified disclosure date which will not be less than 10 days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of intent to disclose the requested information has been issued to the business submitter. Except as otherwise prohibited by law, CBP will also provide a copy of the notice of intent to disclose to the FOIA requester at the same time.

(e) Notice of FOIA lawsuit. Whenever a FOIA requester brings suit seeking to compel the disclosure of commercial information covered by paragraph (b)(1) of this section, CBP will promptly notify the business submitter in writing.

§ 5.13 Other rights and services.

Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.

Appendix I to Subpart A—FOIA Contact Information Department of Homeland Security Chief FOIA Officer Chief Privacy Officer/Chief FOIA Officer, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC. 20528-0655 Department of Homeland Security Deputy Chief FOIA Officer Deputy Chief FOIA Officer, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655 Senior Director, FOIA Operations Sr. Director, FOIA Operations, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 202-343-4011, Email: [email protected] Director, FOIA Production and Quality Assurance Public Liaison, FOIA Production and Quality Assurance, The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 202-343-4011, Email: [email protected] U.S. Customs & Border Protection (CBP) FOIA Officer/Public Liaison, 90 K Street NE., 9th Floor, Washington, DC 20229-1181, Phone: 202-325-0150, Fax: 202-325-0230 Office of Civil Rights and Civil Liberties (CRCL) FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-357-1218, Email: [email protected] Federal Emergency Management Agency (FEMA) FOIA Officer/Public Liaison, 500 C Street SW., Room 7NE, Washington, DC 20472, Phone: 202-646-3323, Email: [email protected] Federal Law Enforcement Training Center (FLETC) FOIA Officer/Public Liaison, Building #681, Suite 187B, Glynco, GA 31524, Phone: 912-267-3103, Fax: 912-267-3113, Email: [email protected] National Protection and Programs Directorate (NPPD) FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 703-235-2211, Fax: 703-235-2052, Email: [email protected] Office of Biometric Identity Management (OBIM) FOIA Officer, Department of Homeland Security, Washington, DC 20598-0628, Phone: 202-298-5454, Fax: 202-298-5445, E-Mail: [email protected] Office of Intelligence & Analysis (I&A) FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-447-4883, Fax: 202-612-1936, Email: I&[email protected] Office of Inspector General (OIG) FOIA Public Liaison, DHS-OIG Counsel, STOP 0305, 245 Murray Lane SW., Washington, DC 20528-0305, Phone: 202-254-4001, Fax: 202-254-4398, Email: [email protected] Office of Operations Coordination and Planning (OPS) FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-447-4156, Fax: 202-282-9811, Email: [email protected] Science & Technology Directorate (S&T) FOIA Officer/Public Liaison, U.S. Department of Homeland Security, Washington, DC 20528, Phone: 202-254-6342, Fax: 202-254-6739, Email: [email protected] Transportation Security Administration (TSA) FOIA Officer/Public Liaison, Freedom of Information Act Branch, 601 S. 12th Street, 11th Floor, East Tower, TSA-20, Arlington, VA 20598-6020, Phone: 1-866-FOIA-TSA or 571-227-2300, Fax: 571-227-1406, Email: [email protected] U.S. Citizenship & Immigration Services (USCIS) FOIA Officer/Public Liaison, National Records Center, FOIA/PA Office, P.O. Box 648010, Lee's Summit, Mo. 64064-8010, Phone: 1-800-375-5283 (USCIS National Customer Service Unit), Fax: 816-350-5785, Email: [email protected] United States Coast Guard (USCG) Commandant (CG-611), 2100 2nd St., SW., Attn: FOIA Officer/Public Liaison, Washington, DC 20593-0001, FOIA Requester Service Center Contact: Amanda Ackerson, Phone: 202-475-3522, Fax: 202-475-3927, Email: [email protected] United States Immigration & Customs Enforcement (ICE) Freedom of Information Act Office, FOIA Officer/Public Liaison 500 12th Street, SW., Stop 5009, Washington, DC 20536-5009, FOIA Requester Service Center Contact, Phone: 866-633-1182, Fax: 202-732-4265, Email: [email protected] United States Secret Service (USSS) Freedom of Information and Privacy Acts Branch, FOIA Officer/Public Liaison, 245 Murray Drive, Building 410, Washington, DC 20223, Phone: 202-406-6370, Fax: 202-406-5586, Email: [email protected]

Please direct all requests for information from the Office of the Secretary, Citizenship and Immigration Services Ombudsman, Domestic Nuclear Detection Office, Office of the Executive Secretary, Office of Intergovernmental Affairs, Management Directorate, Office of Policy, Office of the General Counsel, Office of Health Affairs, Office of Legislative Affairs, Office of Public Affairs and the Privacy Office, to the DHS Privacy Office at:

The Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 202-343-4011, Email: [email protected]
Appendix B to Part 5—[Removed and Reserved] 3. Remove and reserve appendix B to part 5. Title 19—Customs Duties PART 103—AVAILABILITY OF INFORMATION 4. The authority citation for part 103 is revised to read as follows: Authority:

5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C. 9701.

Section 103.31 also issued under 19 U.S.C. 1431;

Section 103.31a also issued under 19 U.S.C. 2071 note and 6 U.S.C. 943;

Section 103.33 also issued under 19 U.S.C. 1628;

Section 103.34 also issued under 18 U.S.C. 1905.

§ 103.35 [Removed]
5. Remove § 103.35. Title 44—Emergency Management and Assistance PART 5—PRODUCTION OR DISCLOSURE OF INFORMATION 6. The authority citation for part 5 is revised to read as follows: Authority:

Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301.

Subparts A through E—[Removed and Reserved] 7. Remove and reserve subparts A through E of part 5. 8. Revise § 5.86 to read as follows:
§ 5.86 Records involved in litigation or other judicial process.

Subpoenas duces tecum issued pursuant to litigation or any other adjudicatory proceeding in which the United States is a party shall be referred to the Chief Counsel.

Jeh Charles Johnson, Secretary.
[FR Doc. 2016-28095 Filed 11-21-16; 8:45 am] BILLING CODE 9110-9L-P
FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 309 RIN 3064-AE53 Revision of the FDIC's Freedom of Information Act Regulations AGENCY:

Federal Deposit Insurance Corporation.

ACTION:

Interim final rule and request for comment.

SUMMARY:

This rule amends the Federal Deposit Insurance Corporation's (FDIC) regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016 (FOIA Improvement Act). In addition, this rule amends certain provisions to reflect changes brought about by prior amendments to the FOIA that had been incorporated into agency practice and corrects inaccurate contact information and adjusts numbering and lettering of current provisions because of additions to the regulations.

DATES:

This rule is effective November 22, 2016. Comments must be submitted by January 23, 2017.

ADDRESSES:

You may submit written comments, which must include the agency name and RIN 3064-AE53, by one of the following methods:

Agency Web site: www.fdic.gov/regulations/laws/federal/. Follow instructions for submitting comments on the Agency Web site.

Email: [email protected] Include “Disclosure of Information” in the subject line of the message.

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

Hand Delivery: 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 7:00 a.m. and 5:00 p.m.

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

Public Inspection: All comments received will be posted without change to http://www.fdic.gov/regulations/laws/federal/, including any personal information provided. Paper copies of public comments may be ordered from the FDIC Public Information Center, 3501 North Fairfax Drive, Room E-1002, Arlington, VA 22226, or by telephone at (877) 275-3342 or (703) 562-2200.

FOR FURTHER INFORMATION CONTACT:

Hugo Zia, Supervisory Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562-2671; or John Elmore, Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562-2047; or Sarah Jirousek, Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562-2125.

SUPPLEMENTARY INFORMATION: I. Policy Objectives

The policy objective of this interim final rule is to bring the FDIC's FOIA regulations 1 into accord with the changes to the FOIA made by the FOIA Improvement Act,2 the OPEN Government Act,3 and the OPEN FOIA Act.4

1 12 CFR 309.2, 309.4, 309.5.

2 Public Law 114-185, 130 Stat. 538 (2016).

3 Public Law 110-175, 121 Stat. 2524 (2007).

4 Public Law 111-83, 123 Stat. 2142, 2184 (2009).

II. Background

This rule amends the FDIC's regulations under the FOIA to incorporate certain changes made to the FOIA, 5 U.S.C. 552, by the FOIA Improvement Act. Among other things, the FOIA Improvement Act requires agencies to provide a minimum of 90 days for requesters to file an administrative appeal. The FOIA Improvement Act also requires agency regulations to address dispute resolution procedures and to provide notification to requesters about the availability of dispute resolution services. The FOIA Improvement Act requires the FDIC to issue regulations which incorporate the changes made by the FOIA Improvement Act not later than 180 days after the date of its enactment (i.e., by December 27, 2016). This rule updates the FDIC's regulations in 12 CFR part 309 to reflect those statutory changes.

In addition, as explained below, this rule amends certain provisions to reflect changes brought about by the amendments to the FOIA in the OPEN Government Act and the OPEN FOIA Act. These amendments to the FOIA from 2007 and 2009 have been followed by the FDIC even though the agency's regulations had not been amended.

Finally, the rule corrects one instance of inaccurate contact information and adjusts the numbering and lettering of current provisions because of additions made to the regulations.

III. Description of the Rule

The following changes have been made to the FDIC's FOIA regulations:

Section 309.2 Definitions

Paragraph (e) of § 309.2 (Definitions) is revised to include the current definition for a record under the FOIA. Section 9 of the OPEN Government Act amended the definitions section of the FOIA, 5 U.S.C. 552(f), by including within the definition of “record” any information “maintained for an agency by an entity under Government contract, for the purposes of records management.” This amendment made clear that records, in the possession of Government contractors for purposes of records management, are considered agency records for purposes of the FOIA. Through this change to the regulations, the FDIC adopts the statutory definition of “record.”

Section 309.4 Publicly Available Records

Paragraph (a)(2) of § 309.4 (Records available on the FDIC's World Wide Web page) is revised to replace outdated wording concerning the inspection of records that are required to be made available to the public. In the current version of the FDIC's regulations, the phrase “via computer telecommunications” is used. The FOIA Improvement Act changed this wording to “for inspection in an electronic format.” Through this change to the regulations, the FDIC adopts the language concerning public inspection of records in the FOIA Improvement Act.

Paragraph (a)(2)(i)(D) of § 309.4 (Records available on the FDIC's World Wide Web page) is revised to include the requirement that the FDIC make available for public inspection in an electronic format any record that has been released and (i) that the FDIC determines has become or is likely to become the subject of subsequent requests for substantially the same records, or (ii) that has been requested three or more times. This requirement has been the practice of the FDIC for a number of years, is in accord with the current practice of the FDIC and is required by the FOIA Improvement Act.

Paragraph (b) of § 309.4 (Public Information Center) is revised to correct inaccurate contact information for the FDIC's Public Information Center. This revision to the regulations is required so that requesters have the correct contact information when inquiring about publicly available records.

Section 309.5 Procedures for Requesting Records

Paragraph (a)(6) of § 309.5 (Representative of the news media) is revised to include the current definition of “representative of the news media” under the FOIA. Section 3 of the OPEN Government Act amended 5 U.S.C. 552(a)(4)(A)(ii) of the FOIA by expressly providing a definition of “representative of the news media.” Through this change to the regulations, the FDIC adopts the definition of “representative of the news media” that is in the OPEN Government Act.

Paragraph (d)(1) of § 309.5 (Receipt of requests) is revised to specify that the FDIC will provide a requester with an individualized tracking number for any FOIA request that satisfies 12 CFR 309.5(b), no matter how long it will take to process the request. Section 7 of the OPEN Government Act amended 5 U.S.C. 552(a) by requiring agencies to assign an individualized tracking number for each request that will require more than ten days to process. This section codified existing requirements set forth in Executive Order 13,392. Providing tracking numbers for every FOIA request that satisfies § 309.5(b), including those that will take less than ten days to process, has been the practice of the FDIC for a number of years, is in accord with the current practice of the FDIC and adopts the language of the OPEN Government Act.

Paragraph (d)(4) of § 309.5 is revised to account for a change in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously, the paragraph covering procedures concerning appeals that is cross-referenced in this paragraph was § 309.5(h); it is now § 309.5(i). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

Paragraph (d)(6) of § 309.5 (Checking status of request) is added to notify requesters of the contact information for FDIC's FOIA Service Center (telephone number and Web site address), thereby enabling requesters to obtain certain information about the status of their request. Section 7 of the OPEN Government Act amended 5 U.S.C. 552(a) by requiring agencies to establish a telephone number or a Web site to allow requesters to inquire about the status of their request, obtain the date an agency originally received their request, and obtain an estimated date for the completion of the agency's processing of their request. This section of the OPEN Government Act codified existing requirements set forth in Executive Order 13,392. The FDIC has a FOIA Service Center that is accessible via the internet and telephone and, through either method, requesters are provided with the date of the FDIC's receipt of their request and the estimated date on which the FDIC will complete its processing of their request. The FDIC has made these services and information available to requesters for a number of years. The addition of this notification provision to the regulations is in accord with the FDIC's current practice and adopts the language in the OPEN Government Act.

Paragraph (d)(7) of § 309.5 (Notification) is revised in numbering because of the addition of § 309.5(d)(6) (Checking status of request). Previously this paragraph was § 309.5(d)(6) (Notification); it is now § 309.5(d)(7) (Notification). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

Paragraph (d)(8) of § 309.5 (Response to request) is revised in numbering because of the addition of § 309.5(d)(6) (Checking status of request). Previously this paragraph was § 309.5(d)(7); it is now § 309.5(d)(8). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

Paragraph (d)(8)(iii) of § 309.5 (Response to request) is added to require the FDIC to notify requesters, in its response to their request, of their right to seek assistance from the FDIC's FOIA Public Liaison, if the FDIC determines such request satisfies 12 CFR 309.5(b). Section 2 of the FOIA Improvement Act added 5 U.S.C. 552(a)(6)(A)(i)(II), which requires agencies to offer the services of their FOIA Public Liaison when issuing their determinations of requests. The addition of this notification provision to the regulations is in accord with the FDIC's current practice and is required by the FOIA Improvement Act.

Paragraph (d)(8)(iv) of § 309.5 (Response to request) is revised in numbering because of the addition of § 309.5(d)(8)(iii) (Checking status of request). Previously this paragraph was § 309.5(d)(8)(iii); it is now § 309.5(d)(8)(iv). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

Paragraph (d)(8)(iv)(C) of § 309.5 (Response to request) is revised to remove an “and” because of the addition of § 309.5(d)(8)(iv)(E). This removal is necessary to maintain the organizational integrity of the regulations.

Paragraph (d)(8)(iv)(D) of § 309.5 (Response to request) is revised to provide for notification to the requester that the deadline to file an administrative appeal is extended to 90 days, in conformity with the 90-day time period established by the FOIA Improvement Act. Section 2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i) by changing the time period for an appeal of adverse determinations, from 30 days to 90 days. This paragraph is also revised to add an “and” because of the addition of § 309.5(d)(8)(iv)(E). These changes are required by the FOIA Improvement Act and for the regulation to remain organized.

Paragraph (d)(8)(iv)(E) of § 309.5 (Response to request) is added to include a requirement that the FDIC notify requesters, in response to an adverse determination of a request that satisfies § 309.5(b), of their right to seek assistance from the FDIC's FOIA Public Liaison and/or the Office of Government Information Services (OGIS) at the National Archives and Records Administration. Section 2 of the FOIA Improvement Act added 5 U.S.C. 552(a)(6)(A)(i)(III), which requires that when agencies make adverse determinations on requests, they must offer the services of their FOIA Public Liaison and/or OGIS. The addition of this provision concerning notification to the regulations is required by the FOIA Improvement Act.

Paragraph (f)(1)(x) of § 309.5 is revised to account for a change in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously, the paragraph referring to procedures concerning appeals that is cross-referenced in this paragraph was § 309.5(h); it is now § 309.5(i). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

Paragraph (g)(3)(i) of § 309.5 (Exempt information) is revised in numbering and by adding an “and” because of the addition of § 309.5(g)(3)(ii). Previously this paragraph was § 309.5(d)(8)(iii); it is now § 309.5(d)(8)(iv). This adjustment to numbering and the addition of an “and” is necessary to maintain the organizational integrity of the regulations.

Paragraph (g)(3)(ii) of § 309.5 (Exempt information) is added to include a requirement codified in the OPEN FOIA Act that statutes enacted after the date of the enactment of the OPEN FOIA Act must specifically cite to Exemption 3 of the FOIA in order to qualify under Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, and so this amendment impacts statutes enacted after that date. In order for any statute enacted after that date to qualify as an Exemption 3 statute, it must satisfy one of the traditional requirements, i.e., it must “require that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or it must “establish particular criteria for withholding or refer to particular types of matters to be withheld;” and, the statute enacted after October 28, 2009, must also specifically cite to Exemption 3. Through this change to the regulations, the FDIC is bringing the language concerning withholdings made pursuant to Exemption 3 into accord with the OPEN FOIA Act.

Paragraph (h) of § 309.5 (Dispute resolution) is added to include procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS. Section 3 of the FOIA Improvement Act requires agencies to amend their regulations to include procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS. The FDIC has pointed requesters to its FOIA Service Center at http://www.fdic.gov, which contains details about the procedures for contacting these entities in order to engage in dispute resolution. The addition of these procedures to the FDIC's regulations is required by the FOIA Improvement Act.

Paragraph (i) of § 309.5 (Appeals) is revised in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously this paragraph was § 309.5(h); it is now § 309.5(i). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

Paragraph (i)(2) of § 309.5 (Appeals) is revised to extend the time to file an administrative appeal to 90 days, in conformity with the 90-day time period established by the FOIA Improvement Act. Section 2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i), changing the time period for appeal of adverse determinations from 30 days to 90 days. This change to the regulations is required by the FOIA Improvement Act.

Paragraph (j) of § 309.5 (Records of another agency) is revised in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously this paragraph was § 309.5(i); it is now § 309.5(j). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.

IV. Expected Effects of the Rule

The FDIC has analyzed the expected effects of the interim final rule and estimates them to be relatively small. The rule makes two primary changes to the existing regulations: Extending the deadline for requesters to file an appeal, and establishing procedures for dispute resolution and requiring notice to requesters about the availability of dispute resolution services. These changes help support the policy objective of the FOIA, which is to provide public access to government information.

The provision in the interim final rule that extends the time period for which an appeal will be considered will likely result in a small increase in administrative costs associated with FOIA requests, but that may be offset by a decrease in lawsuits brought since requesters will now have a larger window for seeking administrative review of an adverse request determination. In the past ten fiscal years, the FDIC has received 238 appeals from FOIA requesters, an average of 24 appeals per fiscal year. The extension of the appeal time period from 30 business days to 90 calendar days will likely result in a general increase in number of appeals, given the larger window for filing an appeal. A general increase in the number of appeals will likely increase administrative costs for the FDIC. Any potential increase in administrative costs as a result of the extension of the appeal period rule is difficult to estimate given that costs will depend upon both the volume of requests received and the extent to which the requests may be subject, in whole or in part, to denial. However, the extension of the appeal period will benefit the public by expanding the deadline for requesters to file an administrative appeal of adverse determinations made by the FDIC.

The establishment of a dispute resolution process also supports public access to government information while likely posing a small increase in administrative costs for the FDIC and/or the OGIS. The establishment of a dispute resolutions process, in addition to the FDIC appeal process, will support public access to government records by providing requesters with an additional mechanism for the review of adverse determinations, in the event of a dispute. Any potential increase in administrative costs as a result of the establishment of a dispute resolution process by the interim final rule is difficult to estimate, given the unpredictable elements noted above.

The interim final rule also makes changes to the FDIC's FOIA regulations to reflect FDIC FOIA practices initially prompted by the OPEN Government Act and the OPEN FOIA Act. Most of the changes to the FDIC FOIA regulations are procedural and either codify current practice or make benign changes to the FOIA regulations that are unlikely to pose any costs or benefits for the Public.

In conclusion, there is potential for a small increase in administrative costs for the FDIC posed by the revisions, but the policy objective of public access to government information continues to be supported and would in fact be enhanced—as required by the FOIA Improvement Act.

V. Alternatives Considered

The changes in the interim final rule are mandated by the FOIA Improvement Act and are in accord with the OPEN Government Act and the OPEN FOIA Act. Under the FOIA Improvement Act, the FDIC has no discretion to make or consider alternative specifications to the provisions in the interim final rule. The other technical changes to 12 CFR part 309 are minor and designed to improve the transparency and readability of the CFR, and therefore FDIC staff did not actively consider alternative approaches to these changes.

VI. Request for Comment

Pursuant to the Administrative Procedure Act (the “APA”), at 5 U.S.C. 553(b), notice and comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” As discussed above, the FOIA Improvement Act requires the FDIC to issue regulations which incorporate the changes made by the FOIA Improvement Act not later than 180 days after the date of its enactment (i.e., by December 27, 2016). Because the statutory changes under the FOIA Improvement Act were effective immediately and due to the statutory deadline imposed for rulemaking, the FDIC has concluded that publishing notice and taking comment before issuing a final rule would be impracticable. In addition, since these changes merely bring the regulations into alignment with the provisions contained in the FOIA Improvement Act, the OPEN Government Act, and the OPEN FOIA Act, and improve the rule's accuracy and organization, publishing prior notice would be unnecessary. Therefore, the FDIC finds good cause exists to publish this rule as final without prior notice and comment and with an effective date as of the date of its publication in the Federal Register to allow the public to benefit immediately. Nevertheless, the FDIC welcomes public comments from any interested person on any aspect of the changes made by this interim final rule. Please refer to the ADDRESSES section above. The FDIC will carefully consider all public comments, if any, in any further development of this rule.

VII. Regulatory Analysis Riegle Community Development and Regulatory Improvement Act

Section 302 of the Riegle Community Development and Regulatory Improvement Act 5 generally requires that regulations prescribed by federal banking agencies which impose additional reporting, disclosures, or other new requirements on insured depository institutions take effect on the first day of a calendar quarter unless the regulation is required to take effect on another date pursuant to another act of Congress or the agency determines for good cause that the regulation should become effective on an earlier date. This interim final rule makes revisions in the FDIC's FOIA regulations, because these changes are merely bringing the regulations into alignment with the provisions contained in the FOIA Improvement Act, the OPEN Government Act, and the OPEN FOIA Act, as well as for purposes of accuracy and organization. It does not impose any new or additional reporting, disclosures, or other requirements on insured depository institutions. Additionally, as previously noted, the FOIA Improvement Act requires the FDIC to issue regulations which incorporate the changes made by the FOIA Improvement Act not later than 180 days after the date of its enactment (i.e., by December 27, 2016). Accordingly, this interim final rule will be effective upon publication.

5 12 U.S.C. 4802.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) 6 applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed above, consistent with section 553(b)(B) of the APA, the FDIC has determined for good cause that general notice and opportunity for public comment is not necessary. Accordingly, the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply. Nonetheless, the FDIC observes that because this interim final rule only amends the FDIC's regulations under the FOIA to incorporate certain changes made by the FOIA Improvement Act, the OPEN Government Act, and the OPEN FOIA Act, and for purposes of accuracy and organization, it should not have a significant economic impact on a substantial number of small entities. The FDIC requests comment on these conclusions.

6 Public Law 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601 et seq.

The Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999: Assessment of Federal Regulations and Policies on Families

The FDIC determined that this interim final rule will not affect family wellbeing within the meaning of section 654 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999.7

7 Public Law 105-277, 112 Stat. 2681 (1998).

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 8 states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The FDIC has determined that this interim final rule does not create any new, or revise any existing, collections of information under the Paperwork Reduction Act. Consequently, no information collection request will be submitted to the OMB for review. The FDIC invites comment on its PRA determination.

8 44 U.S.C. 3501-3521.

Plain Language Act

Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use plain language in all proposed and final rules published after January 1, 2000.9 The FDIC invites comment on how to make this rule easier to understand. For example:

9 Public Law 106-102, 113 Stat. 1338 (1999).

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

• Are the requirements in the rule clearly stated? If not, how could the rule be more clearly stated?

• Does the rule contain technical language or 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 rule easier to understand? If so, what changes would achieve that?

• Is this section format adequate? If not, which of the sections should be changed and how?

• What other changes can the FDIC incorporate to make the rule easier to understand?

List of Subjects in 12 CFR Part 309

Federal Deposit Insurance Corporation, Procedure and Rules of Practice, Disclosure of Information.

Accordingly, for the reasons stated in the preamble, 12 CFR chapter 3, subchapter A, part 309 is amended as follows:

PART 309—DISCLOSURE OF INFORMATION 1. The authority citation for part 309 continues to read as follows: Authority:

5 U.S.C. 552; 12 U.S.C. 1819 “Seventh” and “Tenth.”

2. Section 309.2 is amended by revising paragraph (e) to read as follows:
§ 309.2 Definitions.

(e) The term record means:

(1) Any information that would be an agency record subject to the requirements of this section when maintained by the FDIC in any format, including an electronic format; and

(2) Any information described under paragraph (e)(1) of this section that is maintained for the FDIC by an entity under Government contract, for purposes of records management.

3. Section 309.4 is amended by revising the paragraph (a)(2) subject heading and paragraphs (a)(2)(i) introductory text, (a)(2)(i)(D), and (b) to read as follows:
§ 309.4 Publicly available records.

(a) * * *

(2) Documents required to be made available for inspection in an electronic format. (i) The following types of documents created on or after November 1, 1996, and required to be made available for inspection in an electronic format, may be found on the FDIC's World Wide Web page located at: http://www.fdic.gov:

(D) Copies of all records released to any person under § 309.5:

(1) That, because of the nature of their subject matter, the FDIC determines have become or are likely to become the subject of subsequent requests for substantially the same records; or

(2) That have been requested 3 or more times; and

(b) Public Information Center. The FDIC maintains a Public Information Center or “PIC” that contains Corporate records that the Freedom of Information Act requires be made available for regular inspection and copying, as well as any records or information the FDIC, in its discretion, has regularly made available, to the public. The PIC has extensive materials of interest to the public, including many Reports, Summaries and Manuals used or published by the Corporation that are made available, by appointment, for inspection and copying. The PIC is open from 9 a.m. to 4 p.m., Monday through Friday, excepting Federal holidays. It is located at 3501 North Fairfax Drive, Room E-1005, Arlington, VA 22226. The PIC may be reached during business hours by calling 1(877) 275-3342 or 1-(703) 562-2200.

4. Section 309.5 is amended by: a. Revising paragraphs (a)(6), (d)(1), and (d)(4); b. Redesignating paragraphs (d)(6) and (d)(7) as paragraphs (d)(7) and (d)(8), respectively and adding new paragraph (d)(6); c. Redesignating newly redesignated paragraph (d)(8)(iii) as paragraph (d)(8)(iv) and adding a new paragraph (d)(8)(iii); d. Revising newly redesignated paragraphs (d)(8)(iv)(C) and (d)(8)(iv)(D) and adding paragraph (d)(8)(iv)(E); e. Revising paragraphs (f)(1)(x) and (g)(3); f. Redesignating paragraphs (h) and (i) as paragraphs (i) and (j), respectively; g. Adding new paragraph (h); and h. Revising newly redesignated paragraph (i)(2).

The revisions and additions read as follows:

§ 309.5 Procedures for requesting records.

(a) * * *

(6) Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of news) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media will be considered to be news-media entities. A freelance journalist will be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by that entity. A publication contract would present a solid basis for such an expectation; the FDIC may also consider the past publication record of the requester in making this determination.

(d) * * *

(1) Receipt of requests. Upon receipt of a request that satisfies paragraph (b) of this section, the FOIA/PA Group will acknowledge receipt of the request in writing to the requester and provide the requester with an individualized tracking number for the request. The date of receipt for such request, including one that is addressed incorrectly or that is referred by another agency, is the date the FOIA/PA Group actually receives the request.

(4) A requester seeking expedited processing will be notified whether expedited processing has been granted within ten (10) working days of the receipt of the request. If the request for expedited processing is denied, the requester may file an appeal pursuant to the procedures set forth in paragraph (i) of this section, and the FDIC shall respond to the appeal within ten (10) working days after receipt of the appeal.

(6) Checking status of request. A requester may check on the status of a request using the tracking number assigned to the request to obtain information about the request including the date on which the FDIC originally received the request and an estimated date on which the FDIC will complete action on the request. The status of a request may be obtained:

(i) Online at the FDIC's FOIA Service Center, at http://www.fdic.gov, if the request was submitted electronically using the FDIC's online FOIA request form; or

(ii) By calling the FDIC's FOIA Service Center at (202) 898-7021, if the request was submitted by email, facsimile or regular mail.

(8) * * *

(iii) The right of the requester to seek assistance from the FDIC's FOIA Public Liaison; and

(iv) * * *

(C) The exemptions relied on for the denial;

(D) The right of the requester to appeal the denial to the FDIC's General Counsel within 90 calendar days following receipt of the notification, as specified in paragraph (i) of this section; and

(E) The right of the requester to seek dispute resolution services from the FDIC's FOIA Public Liaison and/or the Office of Government Information Services (OGIS).

(f) * * *

(1) * * *

(x) As part of the initial request, a requester may ask that the FDIC waive or reduce fees if disclosure of the records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Determinations as to a waiver or reduction of fees will be made by the FOIA/PA Group, Legal Division (or designee) and the requester will be notified in writing of his/her determination. A determination not to grant a request for a waiver or reduction of fees under this paragraph may be appealed to the FDIC's General Counsel (or designee) pursuant to the procedure set forth in paragraph (i) of this section.

(g) * * *

(3) Records specifically exempted from disclosure by statute, provided that such statute:

(i)(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

(ii) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3);

(h) Dispute resolution. A requester seeking to engage in dispute resolution may make a request to the FOIA Public Liaison and/or OGIS by following the procedures set forth online in the FDIC's FOIA Service Center at http://www.fdic.gov.

(i) * * *

(2) A person whose initial request for records under this section, or whose request for a waiver of fees under paragraph (f)(1)(x) of this section, has been denied, either in part or in whole, has the right to appeal the denial to the FDIC's General Counsel (or designee) within 90 calendar days after receipt of notification of the denial. Appeals of denials of initial requests or for a waiver of fees must be in writing and include any additional information relevant to consideration of the appeal.

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. 2016-27961 Filed 11-21-16; 8:45 am] BILLING CODE 6714-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3701; Directorate Identifier 2015-NM-015-AD; Amendment 39-18689; AD 2016-21-08] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 2013-25-08 for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. AD 2013-25-08 required a repetitive inspection program on certain check valves in the hydraulic systems that includes, among other things, inspections for lock wire presence and integrity, traces of seepage or black deposits, proper torque, alignment of the check valve and manifold, installation of new lock wire, and corrective actions if needed. This new AD removes airplanes from the applicability, and requires modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing certain check valves with improved check valves, which terminates the repetitive inspections required by this AD. This AD was prompted by multiple reports of hydraulic line check valves loosening. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective December 27, 2016.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 27, 2016.

The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of January 31, 2014 (78 FR 78694, December 27, 2013).

The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of December 14, 2009 (74 FR 62208, November 27, 2009).

ADDRESSES:

For service information identified in this final rule, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3701.

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-2016-3701; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013) (“AD 2013-25-08”). AD 2013-25-08 applied to all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. The NPRM published in the Federal Register on February 25, 2016 (81 FR 9374) (“the NPRM”). The NPRM was prompted by multiple reports of hydraulic line check valves loosening. The NPRM proposed to continue to require a repetitive inspection program on certain check valves in the hydraulic systems that includes, among other things, inspections for lock wire presence and integrity, traces of seepage or black deposits, proper torque, alignment of the check valve and manifold, installation of new lock wire, and corrective actions if needed. The NPRM also proposed to add airplanes to the applicability, and require modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing certain check valves with improved check valves, which would terminate the repetitive inspections required by the proposed AD. We are issuing this AD to detect and correct hydraulic check valve loosening; loosened valves could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0009, dated January 16, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

An A330 operator experienced a Yellow hydraulic circuit low level due to a loose check valve, Part Number (P/N) CAR401. During the inspection on the other two hydraulic systems, the other three check valves P/N CAR401 were also found to be loose with their lock wire broken in two instances. Airbus A340 aeroplanes are also equipped with P/N CAR401 high pressure manifold check valves.

Additional cases of P/N CAR401 check valve loosening have been reported on aeroplanes having accumulated more than 1,000 flight cycles (FC). The check valve fitted on the Yellow hydraulic system is more affected, due to additional system cycles induced by cargo door operation.

This condition, if not detected and corrected, could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the aeroplane.

To address this unsafe condition, EASA issued Emergency AD 2009-0223-E [which corresponds to FAA AD 2009-24-09, Amendment 39-16068 (74 FR 62208, November 27, 2009)] to require an inspection programme to detect any check valve loosening and, if necessary, to apply the applicable corrective actions.

EASA AD 2010-0145, which superseded EASA EAD 2009-0223-E retaining its requirements, was issued to expand the applicability to the newly certified models A330-223F and A330-243F.

Prompted by further reported in-service events of check valve P/N CAR401 loosening before reaching the threshold of 700 FC, EASA AD 2011-0139, which superseded EASA AD 2010-0145, retaining its requirements, was issued to:

—Extend the requirement to identify the P/N CAR401 check valves to all aeroplanes, and

—reduce the inspection threshold for aeroplanes fitted with check valve P/N CAR401, either installed in production through Airbus modification 54491, or installed in service through Airbus Service Bulletin (SB) A330-29-3101 or Airbus SB A340-29-4078.

EASA AD 2012-0070, which superseded EASA AD 2011-0139, retaining its requirements, was issued to require an increased torque value of the check valve tightening and High Pressure (HP) manifold re-identification.

Since EASA AD 2012-0070 was issued, additional in-service events have been reported on aeroplanes fitted with check valves on which the increased torque value had been applied. Based on those events, it has been concluded that the action to re-torque the check valves with an increased value is not a satisfactory terminating action for addressing the issue of those check valves.

To address that, EASA issued AD 2012-0244, which partially retained the requirements of EASA AD 2012-0070, which was superseded. Additionally, for aeroplanes equipped with P/N CAR401 on which the increased torque value had been applied, EASA AD 2012-0244 required repetitive inspections of the check valves and HP manifolds. Finally, EASA AD 2012-0244 also required application of a lower torque value when a check valve P/N CAR401 is installed on an aeroplane.

Note: The reporting and the torque value increase requirements for check valves P/N CAR401 of EASA AD 2012-0070 were no longer part of EASA AD 2012-0244.

EASA AD was revised to clarify which actions are required for P/N CAR401 check valves, depending on applied (or not) torque value.

Since EASA AD 2012-0244R1 was issued, Airbus developed an improved check valve P/N CAR402, which is embodied in production through Airbus modification 203972, and in service through associated Airbus SB A330-29-3125, or Airbus SB A340-29-4096, as applicable to aeroplane type. In addition, these SBs provide instructions about the torque value (between 230 and 250 Nm) and re-identification of HP manifolds after check valve P/N CAR402 installation.

For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2012-0244R1, which is superseded, and requires the installation of check valves P/N CAR402 as terminating action to the repetitive inspections [and removes airplanes on which Airbus modification 203972 has been embodied from the applicability].

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3701.

Comments

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

Support for the NPRM

American Airlines (AAL) stated that it operates 24 airplanes that will be affected by the NPRM, and that it agrees with the need to accomplish Airbus Service Bulletin A330-29-3125 on these airplanes.

Request To Reference Revised Service Information

AAL requested that we revise the NPRM to reference Airbus Service Bulletin A330-29-3125, Revision 02, including Appendixes 01 and 02, dated January 21, 2016. AAL pointed out that this revision includes several corrections in the Accomplishment Instructions.

We agree to reference the latest service information in this final rule. Since we issued the NPRM, Airbus has issued Airbus Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016; and Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016. This service information states that no additional work is required by these revisions for airplanes modified by any previous issue. We have revised paragraph (p) of this AD to reference this revised service information as appropriate sources of service information for accomplishing the actions required by that paragraph. We have also revised paragraph (s) of this AD by adding credit for actions required by paragraph (p) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A330-29-3125, Revision 02, including Appendixes 01 and 02, dated January 21, 2016; or Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; or Airbus Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; as applicable. Additionally, we have reformatted paragraph (s) of this AD to improve readability; this change does not affect the intent or requirements of that paragraph.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

Airbus has issued Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016; and Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016. This service information describes procedures for modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having P/N CAR401 with an improved check valve having P/N CAR402. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 88 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

The actions required by AD 2013-25-08, and retained in this AD take about 10 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that were required by AD 2013-25-08 is $850 per product.

We also estimate that it would take about 32 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $239,360, or $2,720 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD. We have no way of determining the number of aircraft that might need these actions.

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), and adding the following new AD: 2016-21-08 Airbus: Amendment 39-18689; Docket No. FAA-2016-3701; Directorate Identifier 2015-NM-015-AD. (a) Effective Date

This AD is effective December 27, 2016.

(b) Affected ADs

This AD replaces AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013) (“AD 2013-25-08”).

(c) Applicability

This AD applies to Airbus airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.

(1) Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers except those on which Airbus modification 203972 has been embodied in production.

(2) Model A340-211, -212, -213, -311, -312, and -313 airplanes, all manufacturer serial numbers.

(d) Subject

Air Transport Association (ATA) of America Code 29, Hydraulic power.

(e) Reason

This AD was prompted by multiple reports of hydraulic line check valves loosening. We are issuing this AD to detect and correct hydraulic check valve loosening; loosened valves could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the airplane.

(f) Compliance

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

(g) Retained Inspections, With No Changes

This paragraph restates the requirements of paragraph (g) of AD 2013-25-08, with no changes. Except for Model A330-223F and A330-243F airplanes: Do the actions required by paragraphs (g)(1) and (g)(2) of this AD.

(1) For airplanes that do not have Airbus Modification 54491 embodied in production, or Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078 embodied in service: Within 100 flight cycles or 28 days after December 14, 2009 (the effective date of AD 2009-24-09, Amendment 39-16068 (74 FR 62208, November 27, 2009) (“AD 2009-24-09”)), whichever occurs first, inspect the check valves on the blue, green, and yellow hydraulic systems to identify their part numbers (P/Ns), in accordance with the instructions of Airbus All Operators Telex (AOT) A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Accomplishment of the inspection required by paragraph (h) of this AD terminates the requirements of this paragraph.

(i) If check valves having P/N CAR401 are installed on all three hydraulic systems, before further flight, do the actions specified in paragraph (g)(2)(i) of this AD. After accomplishing the actions required by paragraph (g)(2)(i) of this AD, do the actions specified in paragraphs (g)(2)(ii) and (g)(2)(iii) of this AD at the applicable compliance times specified in those paragraphs. Accomplishment of the inspection required by paragraph (i) of this AD terminates the requirements of this paragraph.

(ii) If check valves having P/N CAR401 are not installed on all three hydraulic systems, no further action is required by this paragraph until any check valve having P/N CAR400 is replaced with a check valve having P/N CAR401. If any check valve having P/N CAR400 is replaced by a check valve having P/N CAR401, before further flight, do the inspection specified in paragraph (g)(1) of this AD to determine if all three hydraulic systems are equipped with check valves having P/N CAR401. Accomplishment of the inspection required by paragraph (h) of this AD terminates the requirements of this paragraph.

(2) For airplanes on which Airbus Modification 54491 was embodied in production, or Airbus Service Bulletin A330-29-3101; or Airbus Service Bulletin A340-29-4078 was embodied in service, do the actions specified in paragraphs (g)(2)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.

(i) Except as required by paragraph (g)(1)(i) of this AD, at the applicable times specified in paragraphs (g)(2)(i)(A) and (g)(2)(i)(B) of this AD, as applicable: Do the inspection program (detailed inspection of the lock wire for presence and integrity, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on yellow and blue high pressure manifolds, install new lock wires, and do all applicable corrective actions, in accordance with the instructions of paragraph 4.1.1 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Airbus Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection required by paragraph (h)(1) of this AD terminates the requirements of this paragraph.

(A) For airplanes on which Airbus Modification 54491 has been embodied in production: At the later of the times specified in paragraphs (g)(2)(i)(A)(1) and (g)(2)(i)(A)(2) of this AD.

(1) Before the accumulation of 1,000 total flight cycles since first flight but no earlier than the accumulation of 700 total flight cycles since first flight.

(2) Within 100 flight cycles or 28 days after December 14, 2009 (the effective date of AD 2009-24-09), whichever occurs first.

(B) For airplanes on which Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078 was embodied in service: At the later of the times specified in paragraphs (g)(2)(i)(B)(1) and (g)(2)(i)(B)(2) of this AD.

(1) Within 1,000 flight cycles since the embodiment of Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078 but no earlier than 700 flight cycles after the embodiment of Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078.

(2) Within 100 flight cycles or 28 days after December 14, 2009 (the effective date of AD 2009-24-09), whichever occurs first.

(ii) Within 900 flight hours after accomplishment of paragraph (g)(2)(i) of this AD, do the inspection program (detailed inspection of the lock wire for presence and integrity, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) and install a new lock wire on the green high pressure manifold; and do an inspection (detailed inspection for traces of seepage or black deposits, and detailed inspection to determine alignment of the check valve and manifold) on the yellow and blue high pressure manifolds, and do all applicable corrective actions; in accordance with the instructions of paragraph 4.1.2 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection program required by paragraph (i) of this AD terminates the requirements of this paragraph.

(iii) Within 900 flight hours after accomplishment of paragraph (g)(2)(ii) of this AD, and thereafter at intervals not to exceed 900 flight hours, do the inspection program (detailed inspection for traces of seepage or black deposits, and detailed inspection to determine alignment of the check valve and manifold) on the green, yellow, and blue high pressure manifolds, and do all applicable corrective actions, in accordance with the instructions of paragraph 4.1.3 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection program required by paragraph (i) of this AD terminates the requirements of this paragraph.

(h) Retained Inspection, With No Changes

This paragraph restates the requirements of paragraph (h) of AD 2013-25-08, with no changes. For airplanes equipped with check valves having P/N CAR400; and for airplanes equipped with check valves having P/N CAR401, except for airplanes on which Airbus Modification 201384 has been embodied during production, or on which Airbus Service Bulletin A330-29-3119 (for Model A330-200, -200F, and -300 series airplanes) or Airbus Service Bulletin A340-29-4091 (for Model A340-200 and -300 series airplanes) has been embodied in service: Within 900 flight hours after January 31, 2014 (the effective date of AD 2013-25-08), inspect the check valves on the blue, green, and yellow hydraulic systems to identify their part numbers, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraphs (g)(1) and (g)(1)(ii) of this AD.

(1) If check valves having P/N CAR401 are installed on all three hydraulic systems: Before further flight, do the inspection program (detailed inspection for red mark presence and alignment integrity of the check valve and manifold, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on yellow and blue high pressure manifolds, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraph (g)(2)(i) of this AD.

(2) If check valves having P/N CAR401 are not installed on all three hydraulic systems, no further action is required by this paragraph until any check valve having P/N CAR400 is replaced with a check valve having P/N CAR401. If any check valve having P/N CAR400 is replaced by a check valve having P/N CAR401: Before further flight after such replacement, do the actions specified in paragraph (h) of this AD, to determine if all three hydraulic systems are equipped with check valves having P/N CAR401. If check valves having P/N CAR401 are installed on all three hydraulic systems: Before further flight, do the actions specified in paragraphs (h)(1) and (i) of this AD.

(i) Retained Repetitive Inspection Program and Corrective Actions, With No Changes

This paragraph restates the requirements of paragraph (i) of AD 2013-25-08, with no changes. Within 900 flight hours after accomplishment of paragraph (h)(1) of this AD, do the inspection program (detailed inspection for red mark presence and alignment integrity of the check valve and manifold, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on the green, yellow, and blue system check valves, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Repeat the inspection program thereafter at intervals not to exceed 900 flight hours. Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraphs (g)(1)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.

(j) Retained Repetitive Inspection for Certain Airplanes, With No Changes

This paragraph restates the requirements of paragraph (j) of AD 2013-25-08, with no changes. For airplanes equipped with check valves having P/N CAR401 and on which Airbus Modification 201384 has been embodied during production, or on which Airbus Service Bulletin A330-29-3119 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Service Bulletin A340-29-4091 (for Model A340-200 and -300 series airplanes) has been embodied in service: Within 1,000 flight hours after January 31, 2014 (the effective date of AD 2013-25-08), do a general visual inspection of the green, yellow, and blue high pressure manifolds and check valves having P/N CAR401 for any sign of rotation of the check valve head, and for any signs of hydraulic fluid leakage or seepage (including black deposits), in accordance with the instructions of Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012. Repeat the inspection thereafter at interval not to exceed 900 flight hours.

(k) Retained Corrective Action for Certain Airplanes, With No Changes

This paragraph restates the requirements of paragraph (k) of AD 2013-25-08, with no changes. If, during any inspection required by paragraph (j) of this AD, any sign of rotation of the check valve head is found, or any sign of hydraulic fluid leakage or seepage (including black deposits) is found: Before further flight, do all applicable corrective actions, in accordance with the instructions of Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.

(l) Retained Provisions Regarding Terminating Action, With No Changes

This paragraph restates the provisions of paragraph (l) of AD 2013-25-08, with no changes. Accomplishment of the corrective actions required by this AD does not constitute terminating action for the repetitive inspections required by this AD.

(m) Retained Replacement Check Valve Torque Value, With No Changes

This paragraph restates the requirements of paragraph (m) of AD 2013-25-08, with no changes. As of January 31, 2014 (the effective date of AD 2013-25-08), at each replacement of a check valve with a check valve having P/N CAR401, apply a torque of 141 to 143 newton meters (N.m) (103.98 to 105.45 pounds-foot (lbf.ft)) during installation.

(n) Retained Credit for Previous Actions, With No Changes

This paragraph restates the provisions of paragraph (n) of AD 2013-25-08, with no changes.

(1) This paragraph provides credit for actions required by paragraph (g)(2)(i) of this AD, if those actions were performed before December 14, 2009 (the effective date of AD 2009-24-09), using the applicable service information specified in paragraphs (n)(1)(i) and (n)(1)(ii) of this AD.

(i) Airbus AOT A330-29A3111, dated September 2, 2009 (for Model A330-200 and -300 series airplanes), which is not incorporated by reference in this AD.

(ii) Airbus AOT A340-29A4086, dated September 2, 2009 (for Model A340-200 and -300 series airplanes), which is not incorporated by reference in this AD.

(2) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before January 31, 2014 (the effective date of AD 2013-25-08), using the applicable service information specified in paragraphs (n)(2)(i) through (n)(2)(iv) of this AD.

(i) Airbus AOT A330-29A3111, dated September 2, 2009 (for Model A330-200 and -300 series airplanes), which is not incorporated by reference in this AD.

(ii) Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes), which is incorporated by reference in this AD.

(iii) Airbus AOT A340-29A4086, dated September 2, 2009 (for Model A340-200 and -300 series airplanes), which is not incorporated by reference in this AD.

(iv) Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes), which is incorporated by reference in this AD.

(o) Retained Provisions for Reporting, With No Changes

This paragraph restates the provisions of paragraph (o) of AD 2013-25-08, with no changes. Although the service information specified in paragraphs (o)(1) through (o)(5) of this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.

(1) Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.

(2) Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011.

(3) Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011.

(4) Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009.

(5) Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009.

(p) New Requirement of This AD: Modify Hydraulic Systems

Within 36 months after the effective date of this AD, modify the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having P/N CAR401 with an improved check valve having P/N CAR402, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016; or Airbus Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016; as applicable.

(q) New Provision of This AD: Terminating Action for Repetitive Inspections

Modification of an airplane, as required by paragraph (p) of this AD, constitutes terminating action for the repetitive inspections required by this AD.

(r) New Requirement of This AD: Parts Installation Limitations

(1) For an airplane that, as of the effective date of this AD, has a check valve having P/N CAR401 installed, after modification as required by paragraph (p) of this AD, no person may install a check valve having P/N CAR401, on that airplane.

(2) For an airplane that does not have a check valve having P/N CAR401 installed, as of the effective date of this AD, no person may install a check valve having P/N CAR401, on that airplane.

(s) Credit for Previous Actions

This paragraph provides credit for actions required by paragraph (p) of this AD, if those actions were performed before the effective date of this AD using the applicable service information specified in paragraphs (s)(1) through (s)(5) of this AD, which are not incorporated by reference in this AD.

(1) Airbus Service Bulletin A330-29-3125, dated August 8, 2014.

(2) Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015.

(3) Airbus Service Bulletin A330-29-3125, Revision 02, including Appendixes 01 and 02, dated January 21, 2016.

(4) Airbus Service Bulletin A340-29-4096, dated August 8, 2014.

(5) Airbus Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015.

(t) Other FAA AD Provisions

The following provisions also apply to this AD:

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

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

(ii) AMOC ANM-116-14-180 R1, dated February 21, 2014, is approved as an AMOC for the corresponding provisions of this AD.

(iii) AMOC ANM-116-14-429, dated September 25, 2014, is not approved as an AMOC for the corresponding provisions of this AD.

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

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

(u) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0009, dated January 16, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3701.

(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (v)(6) and (v)(7) of this AD.

(v) Material Incorporated by Reference

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

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

(3) The following service information was approved for IBR on December 27, 2016.

(i) Airbus Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016.

(ii) Airbus Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016.

(4) The following service information was approved for IBR on January 31, 2014 (78 FR 78694, December 27, 2013).

(i) Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.

(ii) Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011.

(iii) Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011.

(5) The following service information was approved for IBR on December 14, 2009 (74 FR 62208, November 27, 2009).

(i) Airbus Alert Operators Telex A330-29A3111, Revision 1, dated October 8, 2009. Only the first page of this document contains the document number, revision level, and date; no other pages of this document contain this information.

(ii) Airbus Alert Operators Telex A340-29A4086, Revision 1, dated October 8, 2009. Only the first page of this document contains the document number, revision level, and date; no other pages of this document contain this information.

(6) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

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

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

Issued in Renton, Washington, on October 12, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-25745 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7421; Directorate Identifier 2015-NM-145-AD; Amendment 39-18705; AD 2016-22-16] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. This AD was prompted by a determination that wear and possible leakage of the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir could occur and cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. This AD requires repetitive operational checks for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective December 27, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.

ADDRESSES:

For service information identified in this final rule, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7421.

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-2016-7421; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7318; fax 516-794-5531.

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on July 1, 2016 (81 FR 43122) (“the NPRM”). The NPRM was prompted by a determination that wear and possible leakage of the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir could occur and cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. The NPRM proposed to require repetitive operational checks for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, and corrective actions if necessary. We are issuing this AD to detect and correct wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, which can result in high hydraulic fluid temperature. High hydraulic fluid temperature combined with a temperature transducer malfunction could result in un-annunciated overheating of the hydraulic system and consequent ignition sources inside the fuel tank, which, combined with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-27, dated September 14, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

It was discovered that the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir with P/N 960450-1 could wear and leak. This can cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. High hydraulic fluid temperature, in combination with a temperature transducer malfunction, could result in an unannunciated overheat of the hydraulic system that could result in a potential ignition source within the fuel system.

This [Canadian] AD mandates the repetitive operational check of the hydraulic system No. 3 fluid temperature indication as an interim mitigating action.

Required actions include repeating any operational check that fails until the operational check passes. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7421.

Comments

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

Clarification of Applicability in This AD

Bombardier, Inc. Model CL-600-2D15 airplanes are derivatives of the Model CL-600-2D24 and should have been included in paragraph (c)(2) of the proposed AD. Therefore, Model CL-600-2D15 is added to paragraph (c)(2) of this AD. The serial number range specified in paragraph (c)(2) of the proposed AD remains unchanged.

Clarification of Unsafe Condition

In the SUMMARY and Discussion sections of the NPRM and paragraph (e) of the proposed AD, we specified that the AD was to detect and correct a malfunctioning temperature indication of the No. 3 hydraulic system. However, the operational check is for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, which can result in high hydraulic fluid temperature. We have revised the SUMMARY and Discussion sections of the final rule and paragraph (e) of this AD accordingly.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Bombardier Service Bulletin 670BA-29-018, Revision A, dated October 13, 2015. The service information describes procedures for performing an operational check for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 509 airplanes of U.S. registry.

We also estimate that it takes about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $43,265, or $85 per airplane.

We have received no definitive data that enables us to provide a cost estimate for the on-condition actions specified in this AD.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-22-16 Bombardier, Inc.: Amendment 39-18705; Docket No. FAA-2016-7421; Directorate Identifier 2015-NM-145-AD. (a) Effective Date

This AD is effective December 27, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to the Bombardier, Inc. airplanes identified in paragraph (c)(1), (c)(2), or (c)(3) of this AD, certificated in any category, equipped with No. 3 hydraulic system reservoir having part number 960450-1.

(1) Model CL-600-2C10 (Regional Jet Series 700, 701, and 702) airplanes, having serial numbers 10002 through 10999 inclusive.

(2) Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes, having serial numbers 15001 through 15990 inclusive.

(3) Model CL-600-2E25 (Regional Jet Series 1000) airplanes, having serial numbers 19001 through 19990 inclusive.

(d) Subject

Air Transport Association (ATA) of America Code 29, Hydraulic power.

(e) Reason

This AD was prompted by a determination that wear and possible leakage of the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir could occur and cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. We are issuing this AD to detect and correct wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, which can result in high hydraulic fluid temperature. High hydraulic fluid temperature combined with a temperature transducer malfunction could result in un-annunciated overheating of the hydraulic system and consequent ignition sources inside the fuel tank, which, combined with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

(f) Compliance

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

(g) Operational Check and Repair, if Necessary

Within 660 flight hours or 4 months after the effective date of this AD, whichever occurs first: Perform an operational check for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-29-018, Revision A, dated October 13, 2015. If the operational check fails, before further flight, do applicable corrective actions and repeat the operational check and applicable corrective actions until the operational check passes. Repeat the operational check thereafter at intervals not to exceed 660 flight hours or 4 months, whichever occurs first.

(h) Credit for Previous Actions

This paragraph provides credit for the applicable actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-29-018, dated June 25, 2015.

(i) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

(j) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2015-27, dated September 14, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7421.

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

(k) Material Incorporated by Reference

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

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

(i) Bombardier Service Bulletin 670BA-29-018, Revision A, dated October 13, 2015.

(ii) Reserved.

(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1 866 538 1247 or direct-dial telephone 1 514 855 2999; fax 514 855-7401; email [email protected]; Internet http://www.bombardier.com.

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

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

Issued in Renton, Washington, on October 25, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-26618 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9103; Directorate Identifier 2016-NE-18-AD; Amendment 39-18711; AD 2016-23-04] RIN 2120-AA64 Airworthiness Directives; BRP-Powertrain GmbH & Co KG Reciprocating Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain BRP-Powertrain GmbH & Co KG Rotax 912 F2, 912 F3, 912 F4, 912 S2, 912 S3, 912 S4, 914 F2, 914 F3, and 914 F4 reciprocating engines. This AD requires replacement of any affected carburetor float with a float that is eligible for installation. This AD was prompted by a report of a quality escape in the manufacturing of the affected floats. We are issuing this AD to prevent failure of the carburetor float, failure of the engine, in-flight shutdown, and loss of the airplane.

DATES:

This AD becomes effective December 7, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 7, 2016.

We must receive comments on this AD by January 6, 2017.

ADDRESSES:

You may send comments by any of the following methods:

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

Mail: U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

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

Fax: 202-493-2251.

For service information identified in this AD, contact BRP-Powertrain GmbH & Co KG, Rotaxstrasse 1, A-4623 Gunskirchen, Austria; phone: +43 7246 6010; fax: +43 7246 601 9130; email: [email protected]; Internet: http://www.FLYROTAX.com. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9103.

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-2016-9103; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Michael Richardson-Bach, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7747; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9103; Directorate Identifier 2016-NE-18-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0144, dated July 19, 2016 (corrected July 25, 2016) (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Due to a quality escape in the manufacturing process of certain floats, Part Number (P/N) 861185, a partial separation of the float outer skin may occur during engine operations. Separated particles could lead to a restriction of the jets in the carburetor, possibly reducing or blocking the fuel supply to the affected cylinder.

This condition, if not detected and corrected, could lead to in-flight engine shutdown and forced landing, possibly resulting in damage to the aeroplane and injury to the occupants.

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9103.

Related Service Information Under 1 CFR Part 51

BRP-Powertrain GmbH & Co KG has issued Alert Service Bulletin ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016. The service information describes procedures for removal and replacement of the carburetor float. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

FAA's Determination and Requirements of This AD

This product has been approved by the aviation authority of Austria, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires removal and replacement of the affected carburetor float.

FAA's Determination of the Effective Date

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

Costs of Compliance

We estimate that this AD affects 0 engines installed on aircraft of U.S. registry. We also estimate that it will take about 4 hours per engine to search maintenance records, disassemble the carburetor, and replace the float. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $0.

Authority for This Rulemaking

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

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

Regulatory Findings

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

For the reasons discussed above, I certify this AD:

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

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

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

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-23-04 BRP-Powertrain GmbH & Co KG (formerly BRP-Rotax GmbH & Co KG, Bombardier-Rotax GmbH & Co. KG, and Bombardier-Rotax GmbH): Amendment 39-18711; Docket No. FAA-2016-9103; Directorate Identifier 2016-NE-18-AD. (a) Effective Date

This AD is effective December 7, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to BRP-Powertrain GmbH & Co KG Rotax model 912 F2, 912 F3, 912 F4, 912 S2, 912 S3, and 912 S4 engines, and Rotax 914 F2, 914 F3, and 914 F4 engines with:

(1) Engine serial numbers (S/Ns) listed in Planning Information, Paragraph 1, Criterion A, of BRP-Powertrain GmbH & Co KG Alert Service Bulletin (ASB) ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016.

(2) Carburetor part numbers (P/Ns) and S/Ns listed in Planning Information, Paragraph 1, Criterion B, of BRP-Powertrain GmbH & Co KG ASB ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016; or

(3) Carburetor floats, P/N 861185, that do not have 3 dots molded on the surface, and installed after May 9, 2016.

(d) Reason

This AD was prompted by a report of a quality escape in the manufacturing of the affected carburetor floats. We are issuing this AD to prevent failure of the carburetor float, failure of the engine, in-flight shutdown, and loss of the airplane.

(e) Actions and Compliance

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

(1) Within 25 flight hours (FHs) or 30 days after the effective date of this AD, replace any affected carburetor float with a float that is eligible for installation in accordance with the Accomplishment Instructions, Paragraph 3, of BRP-Powertrain GmbH & Co KG Rotax ASB ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016.

(2) After the effective date of this AD, do not install on any engine a carburetor float, P/N 861185, delivered between May 8, 2016, and July 17, 2016, that does not have 3 dots molded into the surface. If the delivery date is not documented, do not install the part.

(f) Alternative Methods of Compliance (AMOCs)

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

(g) Related Information

(1) For more information about this AD, contact Michael Richardson-Bach, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7747; fax: 781-238-7199; email: [email protected]

(2) Refer to MCAI European Aviation Safety Agency AD 2016-0144, dated July 19, 2016 (corrected July 25, 2016), for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2016-9103.

(h) Material Incorporated by Reference

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

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

(i) BRP-Powertrain GmbH & Co KG Alert Service Bulletin ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016.

(ii) Reserved.

(3) For BRP-Powertrain GmbH & Co KG service information identified in this AD, contact BRP-Powertrain GmbH & Co KG, Rotaxstrasse 1, A-4623 Gunskirchen, Austria; phone: +43 7246 6010; fax: +43 7246 601 9130; email: [email protected]; Internet: http://www.FLYROTAX.com.

(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125.

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

Issued in Burlington, Massachusetts, on November 7, 2016. Ann C. Mollica, Acting Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2016-27922 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5034; Directorate Identifier 2015-NM-172-AD; Amendment 39-18702; AD 2016-22-13] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that lap splices for certain stringers are subject to widespread fatigue damage (WFD). This AD requires repetitive inspections for cracking in the lower fastener row of the lap splices of certain stringers, and repair if necessary. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective December 27, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5034.

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-2016-5034; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the Federal Register on March 29, 2016 (81 FR 17415) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that the S-14L and S-14R lap splices are subject to WFD. The NPRM proposed to require repetitive low frequency eddy current inspections for cracking in the lower fastener row of the S-14L and S-14R lap splices, and repair if necessary. We are issuing this AD to detect and correct widespread cracking in the S-14L and S-14R lap splices that could rapidly link up and result in possible rapid decompression and reduced structural integrity of the airplane.

Comments

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

Support for the NPRM

Boeing and a commenter, Jordan Ibsen, supported the content of the NPRM.

Effect of Winglets on Accomplishment of the Proposed Actions

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST00830SE does not affect compliance with the actions specified in the NPRM.

We agree with the commenter. We have redesignated paragraph (c) of the NPRM as (c)(1) and added a new paragraph (c)(2) to this final rule to state that installation of STC ST00830SE does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” Alternative Method of Compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Request To Revise Compliance Time

The European Aviation Safety Agency (EASA) noted that Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015, specifies that the existing 737-600/700/800/900 Maintenance Planning Document (MPD), Section 9, Airworthiness Limitation Instruction (ALI) Inspection Program, is not sufficient to prevent WFD in the S-14L and S-14R lap splice, lower fastener rows, between station (STA) 360-540 and STA 727-887, as the airplane ages. EASA added that this service information specifies inspections at principal structural elements (PSEs) 53-30-04-6, 53-30-04-6a, 53-60-04-6 and 53-60-04-6a before accumulating 54,000 total flight cycles. However, EASA noted that 737-600/700/800/900 MPD, Section 9, C626AOO 1-CMR Table 9-2, Revision August 2012, requires doing the inspections before accumulating 50,000 flight cycles; which contradicts the initial statement that the ALI inspection program is not sufficient to preclude WFD. EASA concluded that if the current ALI is not sufficient to preclude WFD, then the 50,000 flight cycles should be reduced, rather than increased to 54,000 flight cycles.

We infer the commenter is requesting that we reduce the 54,000 flight-cycle compliance time specified in Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016 (which is the appropriate source of service information for accomplishing the required actions in this AD). We do not agree with the request to reduce the compliance time. However, we do agree to clarify the WFD analysis. Boeing uses a different methodology than the standard damage tolerance analysis for evaluating structure that is susceptible to WFD. This methodology can sometimes produce a longer initial inspection threshold than the baseline maintenance program, but requires more frequent repetitive inspections, as in the case of the S-14L and S-14R lap splices. Although, for certain airplanes, the initial WFD threshold specified in Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, is 4,000 flight cycles more than the ALI threshold; the repetitive inspection interval is reduced by 6,000 flight cycles.

Operators are still required to accomplish the ALI inspections in accordance with 14 CFR 91.403(c). However, if the inspections specified in Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, and the ALI inspections overlap (same location, inspection detail, and technique) then the more restrictive of the two programs satisfies both requirements. Since a specific revision of the ALI inspections are required by AD 2013-19-23, Amendment 39-17605 (78 FR 61173, October 3, 2013), Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, contains an approved AMOC to AD 2013-19-23, for certain PSEs, after the initial inspections in that service bulletin are accomplished. We have not changed this AD in this regard.

Request for Clarification of Extent of Boeing Organization Designation Authorization (ODA)

Southwest Airlines (SWA) asked for clarification that the Boeing ODA identified in paragraph (i)(3) of the proposed AD can provide an AMOC for any “repair, modification, or alteration” that includes the authority to approve existing repairs in the inspection area that inhibit accomplishment of the AD requirements as terminating action to paragraph (g) of the proposed AD. SWA also asked if the ODA has the authority to provide alternative inspection procedures for repaired areas where the inspection in paragraph (g) of the proposed AD cannot be accomplished. Additionally, SWA asked that we clarify that the Boeing ODA identified in paragraph (i)(3) of the proposed AD is able to issue an AMOC for an existing repair at the S-14 lap joint (where the location of the repair inhibits accomplishing the initial inspection), provided the repair was approved by any FAA designation authority and there are a minimum of three fastener rows above and below the lap joint. SWA stated that neither Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015, nor the NPRM clearly state how to address existing repairs that prevent accomplishment of the inspections specified in paragraph (g) of the proposed AD.

We agree with the commenter that clarification of the extent of the authority of the Boeing ODA is necessary. The Boeing ODA includes the authority to evaluate existing repairs and provide alternative inspection programs in the repaired area, and includes approval of alternative inspections as AMOCs if accomplishment of the inspections required by paragraph (g) of this AD is inhibited. We have not changed this AD in this regard.

We infer that SWA is asking if the Boeing ODA can issue a global AMOC for the referenced repair. The Boeing ODA does not have that authority. We have not received any information from Boeing that defines such a repair that would be considered for a global AMOC. If Boeing provides supporting data, we will evaluate the data to determine if that repair and any associated inspections provide an acceptable level of safety. We have not changed this AD in this regard.

Change to This AD

We have reviewed Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, and there are no substantial changes. Therefore, we have included Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, as the appropriate source of service information for accomplishing in the actions required by paragraph (g) of this AD. We have also added a new paragraph (h) to this AD to provide credit for actions done prior to the effective date of this AD using Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015. We have redesignated subsequent paragraphs accordingly.

Conclusion

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

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

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016. The service information describes procedures for low frequency eddy current inspections and repair for cracking in the lower fastener row of the S-14L and S-14R lap splices. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 1,513 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection for Group 1 airplanes (1,471 airplanes) 84 work-hours × $85 per hour = $7,140 per inspection cycle $0 $7,140 per inspection cycle $10,502,940 per inspection cycle. Inspection for Group 2 airplanes (42 airplanes) 65 work-hours × $85 per hour = $5,525 per inspection cycle 0 $5,525 per inspection cycle $232,050 per inspection cycle.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-22-13 The Boeing Company: Amendment 39-18702; Docket No. FAA-2016-5034; Directorate Identifier 2015-NM-172-AD. (a) Effective Date

    This AD is effective December 27, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category.

    (2) Installation of Supplemental Type Certificate (STC) ST00830SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSTC.nsf/0/38B606833BBD98B386257FAA00602538?OpenDocument&Highlight=st00830se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the stringer (S)-14L and S-14R lap splices are subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct widespread cracking in the S-14L and S-14R lap splices that could rapidly link up and result in possible rapid decompression and reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections

    At the applicable compliance time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, do a low frequency eddy current inspection for cracking of the lower fastener row of S-14L and S-14R lap splices, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016. Repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016. If any cracking is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.

    (h) Credit for Previous Actions

    This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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 (j) of this AD. Information may be emailed to: [email protected]

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

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

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(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. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (j) Related Information

    For more information about this AD, contact Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on October 21, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26621 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3820; Directorate Identifier 2014-SW-024-AD; Amendment 39-18716; AD 2016-23-09] RIN 2120-AA64 Airworthiness Directives; Various Restricted Category Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for various restricted category helicopters. This AD requires cleaning and visually inspecting certain main rotor (M/R) blades and, depending on the outcome of the inspections, repairing or replacing the M/R blades. This AD was prompted by a report of an M/R blade with multiple fatigue cracks around the blade retention bolt hole. The actions are intended to detect a crack in the M/R blade, and prevent failure of the M/R blade and subsequent loss of helicopter control.

    DATES:

    This AD is effective December 27, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at http://www.bellcustomer.com/files/. You may review a copy of the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3820; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Charles Harrison, Project Manager, Fort Worth Aircraft Certification Office, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone 817-222-5140; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    On April 11, 2016, at 81 FR 21288, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Model TH-1F, UH-1B, UH-1F, UH-1H, and UH-1P helicopters with a M/R blade, part number 204-011-250-005 or 204-011-250-113, installed. The NPRM proposed to require repetitively cleaning and visually inspecting the M/R blades for a crack, corrosion, an edge void, loose or damaged adhesion, and an edge delamination. Depending on the outcome of the inspections, the NPRM proposed repairing or replacing the M/R blades. The actions in the NPRM were prompted by a Bell Helicopter Textron Inc. evaluation of an M/R blade installed on a Model UH-1H helicopter that had multiple fatigue cracks around the blade retention bolt hole. The cracks resulted from a void between the lower grip plate and the grip pad. A “substantial” void also was found at the outboard doubler tip on the lower blade surface. A different part-numbered M/R blade of the same type installed on the Model UH-1H helicopter may also be installed on Model TH-1F, UH-1B, UH-1F, and UH-1P helicopters.

    These actions are intended to detect a crack in an M/R blade, and prevent failure of the M/R blade, and subsequent loss of helicopter control.

    Comments

    We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (81 FR 21288, April 11, 2016).

    FAA's Determination

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

    Related Service Information

    Bell Helicopter issued Alert Service Bulletin (ASB) No. UH-1H-13-09, dated January 14, 2013, for the Model UH-1H helicopter. ASB No. UH-1H-13-09 specifies a one-time visual inspection, within 10 hours time-in-service (TIS), of the lower grip pad and upper and lower grip plates for cracks, edge voids, and loose or damaged adhesive squeeze-out. ASB No. UH-1H-13-09 also specifies a repetitive and more detailed visual inspection, daily and at every 150 hours TIS, of the lower grip pad, upper and lower grip plates, and all upper and the lower doublers for cracks, corrosion, edge voids, and loose or damaged adhesive squeeze-out.

    Bell Helicopter Textron also issued ASB No. 204-75-1 for Model 204B helicopters and ASB No. 205-75-5 for Model 205A-1 helicopters, both Revision C and both dated April 25, 1979. ASB No. 204-75-1 and ASB No. 205-75-5 call for visually inspecting the M/R blades during each daily inspection and repetitively washing the blades and applying WD-40. ASB No. 204-75-1 and ASB No. 205-75-5 also provide instructions for repetitively inspecting the blades every 1,000 hours of operation or every 12 months, whichever occurs first, or within 150 hours or 30 days, whichever occurs first, if the blades have more 1,000 hours of operation or have been in service more than 12 months. While ASB No. 204-75-1 and ASB No. 205-75-5 do not apply to the helicopters that are the subject of this AD, they do apply to the affected M/R blades.

    Differences Between This AD and the Service Information

    ASB No. UH-1H-13-09 specifies a one-time inspection and then a second repetitive inspection daily and at every 150 hours TIS, and ASB No. 204-75-1 and ASB 205-75-5 call for visually inspecting the M/R blades daily and every 1,000 hours TIS or 12 months, whichever occurs first. This AD requires all inspections at intervals not to exceed 25 hours TIS or two weeks, whichever occurs first. This AD contains more detailed inspection requirements and a more specific inspection area than the instructions in ASB No. UH-1H-13-09. Lastly, ASB No. UH-1H-13-09 applies to Model UH-1H helicopters with M/R blade P/N 204-011-250-113, ASB No. 204-75-1 applies to Model 204B helicopters with M/R blade P/N 204-011-250 (all dash numbers), and ASB No. 205-75-5 applies to Model 205A-1 helicopters with M/R blade P/N 204-011-250 (all dash numbers). This AD applies to Model TH-1F, UH-1B, UH-1F, UH-1H, and UH-1P helicopters with M/R blade P/N 204-011-250-005 or 204-011-250-113.

    Costs of Compliance

    We estimate that this AD affects 607 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect the following costs:

    • Cleaning and performing all inspections of a set of M/R blades (2 per helicopter) requires a total of 1/2 work-hour. No parts are needed. At an estimated 24 inspections a year, the cost would be $1,032 per helicopter and $626,424 for the U.S. fleet.

    • Replacing an M/R blade requires 12 work hours while parts cost $90,656, for a total cost of $91,676 per blade.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-23-09 Various Restricted Category Helicopters: Amendment 39-18716; Docket No. FAA-2015-3820; Directorate Identifier 2014-SW-024-AD. (a) Applicability

    This AD applies to Model TH-1F, UH-1B, UH-1F, UH-1H, and UH-1P helicopters with a main rotor (M/R) blade, part number 204-011-250-005 or 204-011-250-113, installed.

    (b) Unsafe Condition

    This AD defines the unsafe condition as a crack in an M/R blade, which could result in failure of the M/R blade and subsequent loss of helicopter control.

    (c) Effective Date

    This AD becomes effective December 27, 2016.

    (d) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (e) Required Actions

    (1) Within 25 hours time-in-service (TIS) or 2 weeks, whichever occurs first, and thereafter at intervals not to exceed 25 hours TIS or 2 weeks, whichever occurs first, clean the upper and lower exposed surfaces of each M/R blade from an area starting at the butt end of the blade to three inches outboard of the doublers. Using a 3X or higher power magnifying glass and a light, inspect as follows:

    (i) Visually inspect the exposed area of the lower grip pad and upper and lower grip plates of each M/R blade for a crack and any corrosion.

    (ii) On the upper and lower exposed surfaces of each M/R blade from blade stations 24.5 to 35 for the entire chord width, visually inspect each layered doubler and blade skin for a crack and any corrosion. Pay particular attention for any cracking in a doubler or skin near or at the same blade station as the blade retention bolt hole (blade station 28).

    (iii) Visually inspect the exposed areas of each bond line at the edges of the lower grip pad, upper and lower grip plates, and each layered doubler (bond lines) on the upper and lower surfaces of each M/R blade for the entire length and chord width for an edge void, any corrosion, loose or damaged adhesive squeeze-out, and an edge delamination. Pay particular attention to any crack in the paint finish that follows the outline of a grip pad, grip plate, or doubler, and to any loose or damaged adhesive squeeze-out, as these may be the indication of an edge void.

    (2) If there is a crack, any corrosion, an edge void, loose or damaged adhesive squeeze-out, or an edge delamination during any inspection in paragraph (e)(1) of this AD, before further flight, do the following:

    (i) If there is a crack in a grip pad or any grip plate or doubler, replace the M/R blade with an airworthy M/R blade.

    (ii) If there is a crack in the M/R blade skin that is within maximum repair damage limits, repair the M/R blade. If the crack exceeds maximum repair damage limits, replace the M/R blade with an airworthy M/R blade.

    (iii) If there is any corrosion within maximum repair damage limits, repair the M/R blade. If the corrosion exceeds maximum repair damage limits, replace the M/R blade with an airworthy M/R blade.

    (iv) If there is an edge void in the grip pad or in a grip plate or doubler, determine the length and depth using a feeler gauge. Repair the M/R blade if the edge void is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.

    (v) If there is an edge void in a grip plate or doubler near the outboard tip, tap inspect the affected area to determine the size and shape of the void. Repair the M/R blade if the edge void is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.

    (vi) If there is any loose or damaged adhesive squeeze-out along any of the bond lines, trim or scrape away the adhesive without damaging the adjacent surfaces or parent material of the M/R blade. Determine if there is an edge void or any corrosion by lightly sanding the trimmed area smooth using 280 or finer grit paper. If there is no edge void or corrosion, refinish the sanded area.

    (vii) If there is an edge delamination along any of the bond lines or a crack in the paint finish, determine if there is an edge void or a crack in the grip pad, grip plate, doubler, or skin by removing paint from the affected area by lightly sanding in a span-wise direction using 180-220 grit paper. If there are no edge voids and no cracks, refinish the sanded area.

    (viii) If any parent material is removed during any sanding or trimming in paragraphs (e)(2)(vi) or (e)(2)(vii) of this AD, repair the M/R blade if the damage is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.

    (f) Special Flight Permits

    Special flight permits are prohibited.

    (g) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Rotorcraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Charles Harrison, Project Manager, Fort Worth Aircraft Certification Office, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone 817-222-5140; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (h) Additional Information

    Bell Helicopter Alert Service Bulletin (ASB) No. UH-1H-13-09, dated January 14, 2013, and Bell Helicopter Textron ASB No. 204-75-1 and ASB 205-75-5, both Revision C and both dated April 25, 1979, which are not incorporated by reference, contain additional information about the subject of this final rule. For service information identified in this final rule, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at http://www.bellcustomer.com/files/. You may review a copy of this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    (i) Subject

    Joint Aircraft Service Component (JASC) Code: 6210, Main Rotor Blades.

    Issued in Fort Worth, Texas, on November 4, 2016. Lance T. Gant, Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-27767 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-4223; Directorate Identifier 2015-NM-108-AD; Amendment 39-18693; AD 2016-22-04] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Gulfstream Aerospace Corporation Model GV and GV-SP airplanes. This AD was prompted by a new revision to the Airworthiness Limitations Section (ALS) of the Aircraft Maintenance Manual (AMM) based on fatigue and damage tolerance testing, and updated analysis. This AD requires revising the maintenance or inspection program to incorporate updated inspection requirements and life limits that address fatigue cracking of principal structural elements (PSEs). We are issuing this AD to ensure that fatigue cracking of PSEs is detected and corrected; such fatigue cracking could result in reduced structural integrity of the PSEs and critical components.

    DATES:

    This AD is effective December 27, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.

    ADDRESSES:

    For service information identified in this final rule, 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. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-4223.

    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-2016-4223; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Ronald Wissing, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5552; fax: 404-474-5606; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Gulfstream Aerospace Corporation Model GV and GV-SP airplanes. The NPRM published in the Federal Register on March 14, 2016 (81 FR 13301) (“the NPRM”). The NPRM was prompted by a new revision to the ALS of the AMM, Chapter 05-10-10, based on fatigue and damage tolerance testing, and updated analysis. The NPRM proposed to require revising the maintenance or inspection program to update inspection requirements and life limits that address fatigue cracking of principal structural elements (PSEs). We are issuing this AD to ensure that fatigue cracking of PSEs is detected and corrected; such fatigue cracking could result in reduced structural integrity of the PSEs and critical components.

    Comments

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

    Request To Specify Referenced Document

    Gulfstream requested that we revise the SUMMARY section and the Discussion section of the NPRM, and paragraph (e) of the proposed AD, to refer to the AMM, Chapter 05-10-10, which contains updated inspection requirements and life limits.

    We agree with the request. We have revised the SUMMARY and Discussion sections of this final rule, and paragraph (e) of this AD accordingly.

    Request To Remove Certain Language From the NPRM

    Gulfstream requested that we revise the FAA's Determination section of the NPRM, which states that the unsafe condition is likely to exist or develop “in other products of the same type design.” Gulfstream requested that we remove the quoted language, and pointed out that they believe the statement is irrelevant to the unsafe condition.

    We disagree with the commenter's request. Our phrasing is intentional. The finding that the condition is likely to exist or develop in other products of the same type design is necessary to ensure that the AD falls within the scope of 14 CFR part 39 (“Airworthiness Directives”.) (Specifically, see 14 CFR 39.5.) Additionally, the FAA's Determination section of the NPRM is not restated in this final rule. We have not changed this AD regarding this issue.

    Request for Clarification of Certain Language From the NPRM

    Gulfstream requested clarification regarding which “operator maintenance documents” require revision. Gulfstream did not provide any justification for its request.

    We agree that clarification is necessary. Regardless of the maintenance program that an operator uses, this AD requires revising the applicable maintenance or inspection program documentation. The owner or operator is responsible for maintaining its fleet in an airworthy condition, including compliance with 14 CFR part 39. This final rule has not been changed in this regard.

    Request To Clarify Applicability

    Gulfstream requested that we revise the “Differences Between This Proposed AD and the Service Information” section of the NPRM. Gulfstream pointed out that they believe the applicability is contradictory to Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. Gulfstream also mentioned that it does not believe an operator would be able to log compliance with the proposed AD.

    We agree to clarify. The applicability of this AD differs from the effectivity of Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, which excludes airplanes on which certain supplemental type certificates (STCs) have been accomplished. Airplanes on which those STCs have been accomplished are included in the applicability of this AD because those airplanes could have inspections and limits that are applicable. If it is determined that an airplane with a listed STC cannot accomplish the requirements of this AD, the operator may request an alternative method of compliance (AMOC) in accordance with paragraph (i) of this AD.

    Also, we do not agree with the statement in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, indicating that airplanes with specific STCs installed should be excluded from the effectivity of Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. We have not changed this AD in this regard.

    Request To Allow the Use of Later-Approved Service Information

    Gulfstream requested that we revise Note 1 to paragraph (g) of the proposed AD. Gulfstream specifically requested adding language that would specify “or later FAA approved revision” to clarify operator compliance with the proposed AD.

    We do not agree to revise Note 1 to paragraph (g) of this AD to allow use of “later FAA-approved revisions.” Note 1 to paragraph (g) of this AD specifies the AMM revisions specifically identified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. This AD does not require any actions to be done in accordance with the AMM revisions specified in Note 1 to paragraph (g) of this AD. Additionally, we may not refer to any document that does not yet exist. However, we have revised Note 1 to paragraph (g) of this AD to clarify the intent of that note.

    Request To Verify the Contact Information for Gulfstream

    Gulfstream requested that we verify the contact information used in the ADDRESSES section and paragraph (k)(3) of this AD before publication. Gulfstream stated that its contact information and data storage location may change before the publication date of the final rule.

    We have verified the contact information used in the ADDRESSES section of this final rule, and found that no change is necessary.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR part 51

    We reviewed Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. The service information describes inspection requirements and life limits that address fatigue cracking of the PSEs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 392 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Revision of the maintenance or inspection program 1 work-hour × $85 per hour = $85 $0 $85 $33,320
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-22-04 Gulfstream Aerospace Corporation: Amendment 39-18693; Docket No. FAA-2016-4223; Directorate Identifier 2015-NM-108-AD. (a) Effective Date

    This AD is effective December 27, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Gulfstream Aerospace Corporation Model GV airplanes, certificated in any category, serial numbers 501 through 693 inclusive and serial number 699; and Model GV-SP airplanes, certificated in any category, serial numbers 5001 through 5433 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 32, Landing Gear; 53, Fuselage; 54, Nacelles/Pylons; 55, Stabilizers; and 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by a new revision to the Airworthiness Limitations Section (ALS) of the Aircraft Maintenance Manual (AMM), Chapter 05-10-10, based on fatigue and damage tolerance testing, and updated analysis. We are issuing this AD to ensure fatigue cracking of principal structural elements (PSEs) is detected and corrected; such fatigue cracking could result in reduced structural integrity of the PSEs and critical components.

    (f) Compliance

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

    (g) Revise Maintenance or Inspection Program

    Within 12 months after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the airworthiness limitations specified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. The initial compliance times for the tasks identified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, are at the applicable times specified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, or within twelve months after the effective date of this AD, whichever occurs later.

    Note 1 to paragraph (g) of this AD: Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, specifies the following AMM revisions as additional sources of guidance for the actions required by paragraph (g) of this AD. For Model GV airplanes, AMM Revision 43, dated February 15, 2015; and for Model GV-SP airplanes, G500 or G550 AMM Revision 24, dated February 15, 2015, as applicable.

    (h) No Alternative Actions or Intervals

    After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (i) of this AD.

    (i) 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 (j) 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.

    (j) Related Information

    For more information about this AD, contact Ronald Wissing, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5552; fax: 404-474-5606; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. The revision level and date of this document are not specified on the title page of the document.

    (ii) Reserved.

    (3) For Gulfstream Aerospace Corporation 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.

    (4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA 98057-3356. For information on the availability of this material at the FAA, call 425-227-1221.

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

    Issued in Renton, Washington, on October 14, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-25743 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6672; Directorate Identifier 2016-NM-022-AD; Amendment 39-18706; AD 2016-22-17] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by a report that the grounding jumpers between the environmental control system (ECS) bracket and the current return network (CRN) straps near certain passenger entry doors were not bonded correctly during manufacturing. This AD requires changing the configuration of the grounding jumpers connecting the ECS brackets and CRN straps; measuring the bond resistance; and doing related investigative and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective December 27, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6672.

    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-2016-6672; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Brendan Shanley, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6492; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on June 3, 2016 (81 FR 35655) (“the NPRM”). The NPRM was prompted by a report that the grounding jumpers between the ECS bracket and the CRN straps near passenger 1 left and 1 right entry doors were not bonded correctly during manufacturing. The NPRM proposed to require changing the configuration of the grounding jumpers connecting the ECS brackets and CRN straps; measuring the bond resistance; and doing related investigative and corrective actions if necessary. We are issuing this AD to prevent an incorrectly bonded jumper between the ECS bracket and the CRN strap, which does not provide proper grounding to the door frames at doors 1 left and 1 right. If a fault occurs, an electrical shock hazard can exist and could result in serious or fatal injury to passengers and flight crew.

    Comments

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

    Support for the NPRM

    Boeing stated that it concurs with the content of the NPRM. United Airlines (UAL) stated that the 12-month compliance time is a safe and reasonable timeframe.

    Requests To Reference New Service Information and Add Credit

    All Nippon Airways and UAL requested that we revise the NPRM to reference Boeing Service Bulletin B787-81205-SB530025-00, Issue 002, dated June 2, 2016 (“B787-81205-SB530025-00 Issue 002”), and give credit for actions accomplished using Boeing Service Bulletin B787-81205-SB530025-00, Issue 001, dated July 17, 2014 (“B787-81205-SB530025-00 Issue 001”).

    We agree with the commenters' requests. B787-81205-SB530025-00 Issue 002 clarifies instructions and specifies the category of fay seal application. No additional work is required by B787-81205-SB530025-00 Issue 002. B787-81205-SB530025-00 Issue 002 has steps that are labeled as Required for Compliance (RC).

    We have revised paragraphs (c) and (g) of this AD to reference B787-81205-SB530025-00 Issue 002, and added new paragraph (h) of this AD to provide credit for actions accomplished prior to the effective date of this AD using B787-81205-SB530025-00 Issue 001. We have redesignated subsequent paragraphs accordingly. We have added new paragraph (i)(4) of this AD to address the steps marked RC in B787-81205-SB530025-00 Issue 002.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed B787-81205-SB530025-00 Issue 002. The service information describes procedures for changing the configuration of the grounding jumpers connecting the ECS brackets and CRN straps; measuring the bond resistance; and related investigative and corrective actions if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 6 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Installation 6 work-hours × $85 per hour = $510 $100 $610 $3,660

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

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-22-17 The Boeing Company: Amendment 39-18706; Docket No. FAA-2016-6672; Directorate Identifier 2016-NM-022-AD. (a) Effective Date

    This AD is effective December 27, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Service Bulletin B787-81205-SB530025-00, Issue 002, dated June 2, 2016 (“B787-81205-SB530025-00 Issue 002”).

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by a report that the grounding jumpers between the environmental control system (ECS) bracket and the current return network (CRN) straps near passenger 1 left and 1 right entry doors were not bonded correctly during manufacturing. We are issuing this AD to prevent an incorrectly bonded jumper between the ECS bracket and the CRN strap, which does not provide proper grounding to the door frames at doors 1 left and 1 right. If a fault occurs, an electrical shock hazard can exist and could result in serious or fatal injury to passengers and flight crew.

    (f) Compliance

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

    (g) Grounding Jumper Revision

    Within 12 months after the effective date of this AD: Change the configuration of the grounding jumpers connecting the ECS brackets and CRN straps, including measuring the bond resistance and doing all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of B787-81205-SB530025-00 Issue 002. Do all applicable related investigative and corrective actions before further flight.

    (h) Credit for Previous Actions

    This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Service Bulletin B787-81205-SB530025-00, Issue 001, dated July 17, 2014.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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 (j) of this AD. Information may be emailed to: [email protected]

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

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

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(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. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (j) Related Information

    For more information about this AD, contact Brendan Shanley, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6492; fax: 425-917-6590; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Service Bulletin B787-81205-SB530025-00, Issue 002, dated June 2, 2016.

    (ii) Reserved.

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

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

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

    Issued in Renton, Washington, on October 25, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26614 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-9101; Airspace Docket No. 16-ASO-14] Amendment of Class D and Class E Airspace; Savannah, GA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; technical amendment.

    SUMMARY:

    This action amends Class D and Class E airspace at Savannah, GA, by adjusting the geographic coordinates of Hunter Army Airfield (AAF), and updating the name of Savannah/Hilton Head International Airport. The boundaries and operating requirements of these airports remain the same.

    DATES:

    Effective 0901 UTC, January 5, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for this Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D and Class E airspace in the Savannah, GA, area.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by adjusting the geographic coordinates of Hunter Army Airfield, and recognizing the name change of Savannah/Hilton Head International Airport (formerly Savannah International Airport) to be in concert with the FAA's aeronautical database.

    This is an administrative change and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, effective September 15, 2016, is amended as follows: Paragraph 5000  Class D Airspace. ASO GA D  Savannah, GA [Amended] Hunter AAF (Lat. 32°00′36″ N., long. 81°08′46″ W.) Savannah/Hilton Head International Airport, GA (Lat. 32°07′39″ N., long. 81°12′08″ W.)

    That airspace extending upward from the surface to and including 2,500 feet MSL within a 4.5-mile radius of Hunter AAF; excluding that portion of the overlying Savannah, GA, Class C airspace area and that airspace north of lat. 32°02′30″ N. This Class D airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002  Class E Surface Area Airspace ASO GA E2  Savannah, GA [Amended] Hunter AAF (Lat. 32°00′36″ N., long. 81°08′46″ W.) Savannah/Hilton Head International Airport, GA (Lat. 32°07′39″ N., long. 81°12′08″ W.)

    Within a 5-mile radius of Savannah/Hilton Head International Airport and within a 4.5-mile radius of Hunter AAF. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6005  Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO GA E5  Savannah, GA [Amended] Hunter AAF (Lat. 32°00′36″ N., long. 81°08′46″ W.) Savannah/Hilton Head International Airport, GA (Lat. 32°07′39″ N., long. 81°12′08″ W.)

    That airspace extending upward from 700 feet above the surface within a 10-mile radius of Savannah/Hilton Head International Airport and within a 7-mile radius of Hunter AAF.

    Issued in College Park, Georgia, on November 7, 2016. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2016-27856 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31103; Amdt. No. 3719] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective November 22, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

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

    ADDRESSES:

    Availability of matters incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

    The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

    Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on October 21, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows: Effective 8 December 2016 Hastings, NE, Hastings Muni, RNAV (GPS) RWY 14, Orig-B Las Cruces, NM, Las Cruces Intl, ILS OR LOC RWY 30, Amdt 3A Shirley, NY, Brookhaven, RNAV (GPS)-A, Orig Shirley, NY, Brookhaven, RNAV (GPS) Y RWY 24, Amdt 1A, CANCELED Shirley, NY, Brookhaven, RNAV (GPS) Z RWY 24, Orig-A, CANCELED Houston, TX, George Bush Intercontinental/Houston, RNAV (RNP) Y RWY 26R, Orig-C Effective 5 January 2017 Redding, CA, Redding Muni, Takeoff Minimums and Obstacle DP, Amdt 5B Redding, CA, Redding Muni, VOR RWY 34, Amdt 10F Atlanta, GA, Dekalb-Peachtree, VOR/DME RWY 21L, Amdt 2C, CANCELED Eastman, GA, Heart of Georgia Rgnl, NDB RWY 2, Amdt 3, CANCELED Dwight, IL, Dwight, RNAV (GPS) RWY 27, Orig, CANCELED Dwight, IL, Dwight, Takeoff Minimums and Obstacle DP, Orig, CANCELED Garden City, KS, Garden City Regional, NDB RWY 35, Orig-A, CANCELED Garden City, KS, Garden City Regional, VOR RWY 35, Amdt 7A, CANCELED Flint, MI, Bishop Intl, VOR RWY 9, Orig, CANCELED Flint, MI, Bishop Intl, VOR RWY 27, Orig-A, CANCELED Saginaw, MI, MBS Intl, VOR RWY 5, Amdt 14A, CANCELED Saginaw, MI, MBS Intl, VOR RWY 23, Amdt 14A, CANCELED Saginaw, MI, MBS Intl, VOR RWY 32, Amdt 9B, CANCELED Lewistown, MT, Lewistown Muni, RNAV (GPS) RWY 8, Amdt 2 Lewistown, MT, Lewistown Muni, RNAV (GPS) RWY 26, Amdt 1 Lewistown, MT, Lewistown Muni, Takeoff Minimums and Obstacle DP, Amdt 4 Lewistown, MT, Lewistown Muni, VOR RWY 8, Amdt 16 Casselton, ND, Casselton Robert Miller Rgnl, VOR/DME RWY 31, Amdt 1A Hastings, NE, Hastings Muni, VOR RWY 4, Amdt 6A, CANCELED Kearney, NE, Kearney Rgnl, VOR RWY 13, Amdt 2B, CANCELED Kearney, NE, Kearney Rgnl, VOR RWY 36, Amdt 10, CANCELED Rochester, NH, Skyhaven, Takeoff Minimums and Obstacle DP, Amdt 6A Alamogordo, NM, Alamogordo-White Sands Rgnl, CORONA TWO GRAPHIC DP Alamogordo, NM, Alamogordo-White Sands Rgnl, RNAV (GPS) RWY 4, Amdt 1 Alamogordo, NM, Alamogordo-White Sands Rgnl, Takeoff Minimums and Obstacle DP, Amdt 1A Alamogordo, NM, Alamogordo-White Sands Rgnl, VOR RWY 4, Amdt 3 Santa Fe, NM, Santa Fe Muni, ILS OR LOC RWY 2, Amdt 7 Santa Fe, NM, Santa Fe Muni, RNAV (GPS) RWY 2, Amdt 1 Santa Fe, NM, Santa Fe Muni, RNAV (GPS) RWY 15, Amdt 1 Santa Fe, NM, Santa Fe Muni, RNAV (GPS) RWY 20, Amdt 1 Santa Fe, NM, Santa Fe Muni, RNAV (GPS) RWY 28, Amdt 1 Santa Fe, NM, Santa Fe Muni, RNAV (GPS) RWY 33, Amdt 1 Perryton, TX, Perryton Ochiltree County, Takeoff Minimums and Obstacle DP, Amdt 1 Everett, WA, Snohomish County (Paine Fld), RNAV (GPS) RWY 34L, Amdt 2 Manitowoc, WI, Manitowoc County, VOR RWY 17, Amdt 15, CANCELED Marshfield, WI, Marshfield Muni, NDB RWY 5, Amdt 14B, CANCELED
    [FR Doc. 2016-27699 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31105; Amdt. No. 3721] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective November 22, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

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

    ADDRESSES:

    Availability of matters incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

    The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

    Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on November 4, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows: Effective 8 December 2016 Grass Valley, CA, Nevada County Air Park, GPS RWY 7, Orig-A Oakland, CA, Metropolitan Oakland Intl, RNAV (GPS) Y RWY 30, Amdt 5B Oakland, CA, Metropolitan Oakland Intl, RNAV (RNP) Z RWY 30, Amdt 3B Keokuk, IA, Keokuk Muni, RNAV (GPS) RWY 14, Orig-C Cumberland, MD, Greater Cumberland Rgnl, RNAV (GPS) RWY 23, Amdt 1 Philadelphia, PA, Philadelphia Intl, ILS OR LOC RWY 27L, Amdt 13 Philadelphia, PA, Philadelphia Intl, ILS V RWY 9R (CONVERGING), Amdt 5 Philadelphia, PA, Philadelphia Intl, ILS Z OR LOC Z RWY 9R, ILS Z RWY 9R (SA CAT I), ILS Z RWY 9R (CAT II), ILS Z RWY 9R (CAT III), Amdt 10 Philadelphia, PA, Philadelphia Intl, RNAV (GPS) RWY 27L, Amdt 2 Philadelphia, PA, Philadelphia Intl, RNAV (GPS) Y RWY 9R, Amdt 3 State College, PA, University Park, VOR-B, Amdt 11 Wilkes-Barre/Scranton, PA, Wilkes-Barre/Scranton Intl, ILS OR LOC RWY 4, Amdt 38 Effective 5 January 2017 Kaltag, AK, Kaltag, Takeoff Minimums and Obstacle DP, Orig-A New Stuyahok, AK, New Stuyahok, Takeoff Minimums and Obstacle DP, Amdt 1A Albany, GA, Southwest Georgia Rgnl, ILS OR LOC RWY 4, Amdt 12 Chicago/Aurora, IL, Aurora Muni, ILS OR LOC RWY 33, Orig, CANCELED Chicago/Aurora, IL, Aurora Muni, LOC RWY 33, Orig Galesburg, IL, Galesburg Muni, RNAV (GPS) RWY 3, Orig-B Baltimore, MD, Martin State, LOC RWY 15, AMDT 3C Santa Fe, NM, Santa Fe Muni, Takeoff Minimums and Obstacle DP, Amdt 4 Glens Falls, NY, Floyd Bennett Memorial, RNAV (GPS) RWY 1, Amdt 2 Delaware, OH, Delaware Muni—Jim Moore Field, RNAV (GPS) RWY 10, Amdt 1 Delaware, OH, Delaware Muni—Jim Moore Field, RNAV (GPS) RWY 28, Amdt 1 Delaware, OH, Delaware Muni—Jim Moore Field, Takeoff Minimums and Obstacle DP, Amdt 1 Delaware, OH, Delaware Muni—Jim Moore Field, VOR RWY 28, Amdt 1 Magnum, OK, Scott Field, RNAV (GPS) RWY 17, Amdt 2 Magnum, OK, Scott Field, RNAV (GPS) RWY 35, Amdt 2 Gainesville, TX, Gainesville Muni, RNAV (GPS) RWY 18, Amdt 2 Gainesville, TX, Gainesville Muni, RNAV (GPS) RWY 36, Orig Gainesville, TX, Gainesville Muni, Takeoff Minimums and Obstacle DP, Amdt 1 Portage, WI, Portage Muni, Takeoff Minimums and Obstacle DP, Amdt 2

    Rescinded: On October 26, 2016 (81 FR 74289), the FAA published an Amendment in Docket No. 31098, Amdt No. 3715 to Part 97 of the Federal Aviation Regulations under section 97.31. The following entry for Midland, TX, effective November 10, 2016, is hereby rescinded in its entirety:

    Midland, TX, Midland Intl Air & Space Port, RADAR-1, Amdt 7
    [FR Doc. 2016-27698 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 176 [Docket No. FDA-2016-F-1153] Indirect Food Additives: Paper and Paperboard Components AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is amending the food additive regulations to no longer provide for the use of two specific perfluoroalkyl containing substances as oil and water repellents for paper and paperboard for use in contact with aqueous and fatty foods because these uses have been abandoned. This action is in response to a petition filed by Keller and Heckman LLP on behalf of 3M Corporation.

    DATES:

    This rule is effective November 22, 2016. See section VIII for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing by December 22, 2016.

    ADDRESSES:

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

    Electronic Submissions

    Submit electronic objections in the following way:

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

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

    Written/Paper Submissions

    Submit written/paper submissions as follows:

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

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

    Instructions: All submissions received must include the Docket No. FDA-2016-F-1153 for “Indirect Food Additives: Paper and Paperboard Components.” Received objections will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Vanee Komolprasert, Center for Food Safety and Applied Nutrition (HFS-275), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1217.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In a document published in the Federal Register of April 29, 2016 (81 FR 25625), we announced that we filed a food additive petition (FAP 6B4814) submitted on behalf of 3M Corporation (Petitioner) by Keller and Heckman LLP, 1001 G Street NW., Suite 500 West, Washington, DC 20001. The petition proposed to amend § 176.170 (21 CFR 176.170) to no longer provide for the use of two different perfluoroalkyl containing substances as oil and water repellents for paper and paperboard for use in contact with aqueous and fatty foods because these uses have been intentionally and permanently abandoned. The two substances that are the subjects of the petition are as follows:

    (1) Ammonium bis (N-ethyl-2-perfluoroalkylsulfonamido ethyl) phosphates, containing not more than 15 percent ammonium mono (N-ethyl-2-perfluoroalkylsulfonamido ethyl) phosphates, where the alkyl group is more than 95 percent C8 and the salts have a fluorine content of 50.2 percent to 52.8 percent as determined on a solids basis; and

    (2) Perfluoroalkyl acrylate copolymer (CAS Reg. No. 92265-81-1) containing 35 to 40 weight percent fluorine, produced by the copolymerization of ethanaminium, N,N,N-trimethyl-2-[(2-methyl-1-oxo-2-propenyl)-oxy]-, chloride; 2-propenoic acid, 2-methyl-, oxiranylmethyl ester; 2-propenoic acid, 2-ethoxyethyl ester; and 2-propenoic acid, 2[[(heptadecafluoro-octyl)sulfonyl]methyl amino]ethyl ester.

    In response to food additive petitions submitted by the Petitioner (33 FR 14544, September 27, 1968; 35 FR 14840, September 24, 1970; 37 FR 9762, May 17, 1972; and 52 FR 3603, February 5, 1987), FDA authorized certain uses of these two substances as food additives under § 176.170.

    II. Evaluation of Abandonment

    Section 409(i) of the Federal, Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 348(i)) states that we may by regulation establish the procedure for amending or repealing a food additive regulation, and that this procedure shall conform to the procedure provided in section 409 for the promulgation of such regulations. FDA's regulations specific to the administrative actions for food additives provide that the Commissioner, on his own initiative or on the petition of any interested person, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive (§ 171.130(a) (21 CFR 171.130(a))). The regulations further provide that any such petition must include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or appeal. New data must be furnished in the form specified in 21 CFR 171.1 and 171.100 for submitting petitions (§ 171.130(b)). Under these regulations, a petitioner may propose that we amend a food additive regulation if the petitioner can demonstrate that there are “old uses abandoned” for the relevant food additive. Such abandonment must be complete and permanent for any intended uses in the U.S. market. While section 409 of the FD&C Act and § 171.130 also provide for amending or revoking a food additive regulation based on safety, an amendment or revocation based on abandonment is not based on safety of the food additive. Instead, the amendment or revocation is based on the fact that regulatory authorization is no longer necessary because the use of the food additive has been permanently and completely abandoned.

    Abandonment may be based on the abandonment of certain authorized food additive uses for a substance (e.g., if a substance is no longer used in certain product categories) or on the abandonment of all authorized food additive uses of a substance (e.g., if a substance is no longer being manufactured). If a petition seeks to amend the food additive regulations based on the abandonment of certain uses of the food additive, such uses must be adequately defined so that both the scope of the abandonment and any amendment to the food additive regulation are clear.

    The petition submitted on behalf of 3M Corporation includes the following information to support the claim that the uses of the two substances are no longer being introduced into interstate commerce. The Petitioner provides a statement that the Petitioner does not currently manufacture the two substances for food contact use in the United States, and that to the best of the Petitioner's knowledge, the Petitioner was the sole and exclusive domestic and international manufacturer of the two substances for the abandoned uses. In addition, the Petitioner submitted information on its May 2000 voluntary agreement with the U.S. Environmental Protection Agency to phase out production of perfluorooctane sulfonate (PFOS); which is used to produce the two substances (https://nepis.epa.gov/Exe/ZyPDF.cgi/P100LTG6.PDF?Dockey=P100LTG6.PDF). According to the petition, the Petitioner completed a voluntary phase-out of PFOS production in 2002. The Petitioner states that it does not intend to manufacture or import, nor does it maintain an inventory for sale or distribution, of the two substances for use in food-contact applications in the United States in the future.

    III. Comments on the Filing Notice

    We provided 60 days for comments on the filing notice. We received two comments from an individual and a consumer group. Both comments raised two issues, which are discussed in the paragraphs that follow. For ease of reading, we preface each comment discussion with a numbered “Comment,” and each response with “Response.”

    (Comment 1) One comment asked why we are amending the regulations if the substances are no longer in use.

    (Response) FDA is responding to an FAP, as required under section 409 of the FD&C Act. Amending these food additive regulations addresses the FAP under the process set forth in the FD&C Act. In the case of abandonment, regulatory authorization is no longer necessary for these substances because their use as food additives has been permanently and completely abandoned. Our action also gives interested parties better information about what substances are used as food contact substances.

    (Comment 2) Another comment asked FDA to remove the approvals of seven effective food contact notifications for long-chain perfluorinated compounds.

    (Response) We decline to address food contact substances that are outside the scope of this food additive petition.

    IV. Conclusion

    We reviewed the data and information in the petition and other available relevant material to determine whether the use of the two perfluoroalkyl containing substances as oil and water repellents for paper and paperboard for use in contact with aqueous and fatty foods has been permanently and completely abandoned. Based on the available information, we conclude that the use of these substances has been permanently and completely abandoned. Therefore, we are amending 21 CFR part 176 as set forth in this document. Upon the effective date (see DATES), these food additive uses are no longer authorized.

    V. Public Disclosure

    In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 171.1(h), we will delete from the documents any materials that are not available for public disclosure.

    VI. Analysis of Environmental Impact

    We previously considered the environmental effects of this rule, as stated in the Federal Register of April 29, 2016, notice of petition for FAP 6B4814. We stated that we had determined, under 21 CFR 25.32(m), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment,” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

    VII. Paperwork Reduction Act of 1995

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

    VIII. Objections

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

    Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

    List of Subjects in 21 CFR Part 176

    Food additives, Food packaging.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and re-delegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 176 is amended as follows:

    PART 176—INDIRECT FOOD ADDITIVES: PAPER AND PAPERBOARD COMPONENTS 1. The authority citation for part 176 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 346, 348, 379e.

    § 176.170 [Amended]
    2. Amend § 176.170 in the table in paragraph (a)(5) by removing the entries for “Ammonium bis (N-ethyl-2-perfluoroalkylsulfonamido ethyl) phosphates” and “Perfluoroalkyl acrylate copolymer.” Dated: November 17, 2016. Susan Bernard, Director, Office of Regulations, Policy and Social Science, Center for Food Safety and Applied Nutrition.
    [FR Doc. 2016-28116 Filed 11-21-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 1000 [Docket No. FR-5650-F-14] RIN 2577-AC90 Native American Housing Assistance and Self-Determination Act; Revisions to the Indian Housing Block Grant Program Formula AGENCY:

    Office of the Assistant Secretary for Public and Indian Housing, HUD.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule revises the Indian Housing Block Grant (IHBG) Program allocation formula authorized by section 302 of the Native American Housing Assistance and Self-Determination Act of 1996, as amended (NAHASDA). Through the IHBG Program, HUD provides federal housing assistance for Indian tribes in a manner that recognizes the right of Indian self-determination and tribal self-government. HUD negotiated this final rule with active tribal participation and using the procedures of the Negotiated Rulemaking Act of 1990. The regulatory changes reflect the consensus decisions reached by HUD and the tribal representatives on ways to improve and clarify the current regulations governing the IHBG Program formula.

    DATES:

    Effective Date: December 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Heidi J. Frechette, Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4126, Washington, DC 20410, telephone number 202-401-7914 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.) (NAHASDA) changed the way that housing assistance is provided to Native Americans. NAHASDA eliminated several separate assistance programs and replaced them with a single block grant program, known as the Indian Housing Block Grant (IHBG) Program. NAHASDA and its implementing regulations, codified at 24 CFR part 1000, recognize tribal self-determination and self-governance while establishing reasonable standards of accountability. Reflective of this, section 106 of NAHASDA provides that HUD shall develop implementing regulations with active tribal participation and using the procedures of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570).

    Under the IHBG program, HUD makes assistance available to eligible Indian tribes for affordable housing activities. The amount of assistance made available to each Indian tribe is determined using a formula developed as part of the NAHASDA negotiated process. Based on the amount of funding appropriated for the IHBG program, HUD calculates the annual grant for each Indian tribe and provides this information to the Indian tribes. Indian tribes are required to submit to HUD an Indian Housing plan that includes, among other things, a description of planned activities and statement of needs. If the Indian Housing Plan complies with statutory and regulatory requirements, the grant is awarded.

    Following the enactment of the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008 (Pub. L. 110-411, approved October 14, 2008) (NAHASDA Reauthorization Act) HUD established a negotiated rulemaking committee 1 that focused on implementing the NAHASDA Reauthorization Act and prior amendments to NAHASDA, except those provisions which govern the NAHASDA allocation formula. As a result of that negotiated rulemaking, HUD published a final rule on December 3, 2012 (77 FR 71513).

    1 75 FR 423 (January 5, 2010).

    On July 3, 2012 (77 FR 39452) and September 18, 2012 (77 FR 57544), HUD announced its intent to establish a negotiated rulemaking committee for the purpose of reviewing the NAHASDA allocation formula regulations at 24 CFR part 1000, subpart D, and negotiating recommendations for a possible proposed rule modifying the IHBG formula. On July 30, 2013 (78 FR 45903), after considering public comment on the proposed membership, HUD published a Federal Register document announcing the final list of members of the IHBG Formula Negotiated Rulemaking Committee (Committee) and announcing the date of the first meeting of the Committee. The Committee consists of 24 designated representatives of tribal governments (or authorized designees of those tribal governments) which, as required by NAHASDA, reflects a balanced representation of Indian tribes geographically and based on size, and two HUD representatives.

    In developing this final rule, the Committee met nine times. Committee meetings took place on August 27-28, 2013, September 17-19, 2013, April 23-24, 2014, June 11-13, 2014, July 29-31, 2014, August 26-28, 2014, August 11-13, 2015, January 26-27, 2016, and September 20-21, 2016. The Committee agreed to operate based on consensus rulemaking and its approved charter and protocols. All of the Committee meetings were announced in the Federal Register and were open to the public.2

    2 See, 78 FR 45903 (July 30, 2013); 78 FR 54416 (September 4, 2013); 79 FR 14204 (March 13, 2014); 79 FR 28700 (May 23, 2014); 80 FR 30004 (May 26, 2015); 80 FR 33157 (June 11, 2015); 81 FR 881 (January 8, 2016); 81 FR 57506 (August 23, 2016).

    During this negotiated rulemaking, the Committee undertook a comprehensive review of the IHBG formula and statutory changes that needed to be addressed in the regulations. With the full and active participation of the tribes, HUD and the Committee identified certain areas of the IHBG formula that required clarification, were outdated, or could be improved and, on May 31, 2016, published a proposed rule (81 FR 34290). With the exception of changes to § 1000.330(b)(ii), the proposed rule reflected the consensus decisions reached by the Committee during the negotiated rulemaking process on the best way to address these issues.

    The Committee convened for a 2-day meeting in Oklahoma City, OK, on September 20-21, 2016, to review and consider public comments received on the proposed rule. This final rule takes into consideration the public comments on the proposed rule, and makes some changes, based on the public comments, to the May 31, 2016, proposed rule. It also reflects the consensus decisions reached by HUD and the Committee.

    II. Changes and Clarifications Made in This Final Rule

    This final rule follows publication of the May 31, 2016, proposed rule and takes into consideration the public comments received on the proposed rule. In response to the public comments, a discussion of which is presented in the following section of this preamble, and in further consideration of issues addressed at the proposed rule stage, HUD and the Committee are making the following regulatory changes at this final rule stage:

    • HUD has decided not to move forward with the single non-consensus provision in the proposed rule; the adjustment to the American Community Survey (ACS) proposed in § 1000.330(b). HUD meaningfully considered the public comments and engaged in extensive additional analysis. HUD has decided that the adjustment does not do enough to address volatility associated with small areas to warrant its introduction as a non-consensus adjustment.

    • The Committee agreed by consensus to add a new § 1000.318(d) to establish the eligibility criteria for Formula Current Assisted Stock (FCAS) units that are demolished and rebuilt. The provision provides that a unit demolished pursuant to a planned demolition may be considered eligible as a FCAS unit if, after demolition is completed, the unit is rebuilt within one year. The provision provides that demolition is completed when the site of the demolished unit is ready for rebuilding and allows IHBG recipients to request approval for a one-time, one-year extension based on the formula factors in section 302(c)(1) of NAHASDA.

    • The Committee agreed to revise § 1000.329(c) which requires that a tribe receiving Minimum Total Grant Allocation of Carryover Funds, certify the presence of households at or below 80 percent of median income, to more closely parallel a similar provision codified at § 1000.328(b)(2).

    • The Committee agreed to clarify the undercount adjustment to the U.S. Decennial Census for Reservation and Trust Lands in § 1000.330(b). Specifically, the Committee agreed to change “Indian Lands in Remote Alaska” to “For Remote Alaska as designated by the U.S. Census Bureau, Alaska Formula Areas in Remote Alaska shall be treated as Reservation and Trust Lands for purposes of this paragraph”.

    III. The Public Comments

    The public comment period for this rule closed on August 1, 2016, and HUD received 22 comments. Included in these 22 comments were 2 sets of identical comments; one set that contained 7 identical comments and a second set that contained 2 identical comments. Comments were submitted by federally recognized Indian tribes, tribal and regional housing authorities, TDHEs, associations comprised of tribes, tribal housing authorities, a law office, a nonprofit devoted to issues of race and ethnicity, and members of the public.

    As discussed in this preamble, the Committee met on September 20 and 21, 2016, to review and consider responses to the public comments. This section of the preamble addresses the significant issues raised in the public comments and organizes the comments by subject category, with a brief description of the issue, followed by the Committee's response.

    A. Comments Regarding Non-Consensus Provision To Control Total Weights Within ACS (§ 1000.330(b))

    Comment: Control weights within the ACS not a valid measure of other variables. Several commenters expressed concern with the adjustment of § 1000.330(b) and stated it is not reasonable to assume that an undercount of one variable, American Indian and Alaska Native (AIAN) persons, should be applied to the other variables.

    Response: The Committee acknowledges this was a non-consensus decision taken by HUD. HUD appreciates the comment. HUD proposed the adjustment to reduce some of the likely error in the ACS for small areas caused by county based sampling in the ACS and to address the undercount in the base Decennial Census that is used as a core component of the weighting of ACS data. After careful consideration, however, HUD has decided not to move forward with the adjustment. HUD has determined that it does not do enough to address volatility associated with small areas to warrant its introduction as a non-consensus adjustment.

    Comment: Opposition to implementing a non-consensus adjustment to the ACS data. Several commenters expressed disappointment with HUD in proposing to implement the reweighting adjustment that is part of § 1000.330(b) despite broad opposition from tribal Committee members. The commenters urged HUD to respect the perspective of the majority of the Committee tribal members and not implement the reweighting proposal. Other commenters stated that HUD should not unilaterally move forward with its own proposals if no consensus is found but rather should rely on the existing language of the regulations since that approach was the result of a prior consensus between HUD and the tribes.

    Several commenters also stated that they do not support the implementation of any non-consensus items, and referred to the adoption of the ACS adjustment. Several of these commenters also concluded that implementing a non-consensus item severely dilutes the significance of this process, is not a sign of negotiating in good faith, and is inconsistent with what constitutes Government-to-Government consultation. One of the commenters also stated that the summary section of the proposed rule was inaccurate by stating that the proposed regulatory changes reflect the consensus decision of the Committee since the adoption of the data source itself was not made by consensus, and recommended that HUD revise the sentence to reflect that the proposal included regulatory changes that did not achieve consensus.

    Response: HUD appreciates the concerns of the commenters but disagrees with the suggestion that moving forward unilaterally with this non-consensus item reflects a lack of good faith or detracts from the Government-to-Government relationship that HUD has with the tribes. HUD has agreed, however, to remove the ACS adjustment (control total weights within the ACS).

    B. Comments Regarding Minimum Total Grant Allocation of Carryover Funds (§ 1000.329).

    Comment: The Minimum Total Grant Allocation of Carryover Funds is inconsistent with NAHASDA. One commenter expressed opposition to the Minimum Total Grant Allocation of Carryover Funds stating that it is an arbitrary allocation rather than a need-based allocation, as required by NAHASDA. The commenter stated that adjusting the formula simply because carryover funds are added is a departure from the need-based model and will mean funding is withheld from tribes with more demonstrable need. The commenter suggested that if carryover funds cannot be added to the total allocation, then the funds should be used for drug clean-up grants.

    Response: The Committee considered this comment and disagrees that § 1000.329 is arbitrary and not based on need. In considering the provision, the Committee sought to augment the minimum allocation amount already provided under the need component in § 1000.328 in the event there are funds voluntarily returned or not accepted by other tribes in the prior year (“carryover”). Just as § 1000.328 recognized that allocations in minimum amounts are needed if there exist eligible households below 80 percent of median income in the tribe's formula area, proposed § 1000.329 simply recalibrates the minimum if there are carryover funds. The Committee also notes that HUD does not have the statutory authority to award funds specifically to fund drug control/elimination grants, however, grantees may choose to spend their IHBG funds to remediate units as doing so is an eligible activity in the IHBG program.

    Comment: Minimum Total Grant Allocation of Carryover Funds should be clarified. Another commenter recommended that § 1000.329(c) be clarified to read, “To be eligible, a tribe must certify in its Indian Housing Plan the presence of any eligible households at or below 80 percent of median income.”

    Response: The Committee considered this comment and agrees that § 1000.329(c) be clarified to parallel § 1000.328.

    C. Comments Regarding the Data Sources for the Need Variables (§ 1000.330).

    Comment: Counting and averaging of the U.S. Decennial Census data. Several commenters recommended the U.S. Decennial Census data be adjusted for both over and undercounts for accuracy. The commenters also requested clarification on who determines what is “significant” since it is not defined in the regulations. Other commenters recommended that HUD must determine the actual undercounts on a reservation-by-reservation basis instead of utilizing an average undercount for its adjustment.

    Response: The Committee considered these comments and agreed that the regulation should not make adjustments to add for any statistically significant overcount. The Committee during its eighth session considered how to address undercounts and overcounts reported by the U.S. Census Bureau. The Committee, by consensus, determined that adjustments to data should be made for statistically significant undercounts. The Committee did not reach consensus on any adjustments to data based upon overcounts. The Census reports reviewed during the convening of the Committee did not indicate any statistically significant overcounts. The U.S. Census Bureau determines whether overcounts or undercounts are statistically significant. Currently there is no way to determine actual undercounts or overcounts on a reservation-by-reservation basis.

    Comment: The term “Indian Lands” is ambiguous and needs to be clarified in the undercount adjustment to the U.S. Decennial Census. Several commenters stated that the term “Indian Lands” in § 1000.330(b) needs to be clarified as it pertains to Alaska Native villages in remote Alaska. One commenter stated that the term was not meant to mean “Indian Country” but was meant to refer to the lands within the formula area of the villages (Alaska Native Village Statistical Areas). The commenter recommended that the Committee not change this section if this is the understanding of how this term would be interpreted. The commenter requested, however, that the term be clarified as including those lands comprising the formula areas of the Alaska Native Villages if there is confusion regarding this interpretation.

    Another commenter stated that aggravating the ambiguity is the absence of any definition of the term “Indian Lands” in NAHASDA or the NAHASDA regulations, and the various uses of the term by other Federal agencies (e.g., the Department of Energy under the Alaska Native Claims Settlement Act, 25 U.S.C. 3501). This commenter stated that there are no reservation or trust lands in Remote Alaska other than the Metlakatla Reservation, and concluded that confining the term to reservations and trust lands in this unique context would render the provision meaningless. The commenters asserted that the Committee adopted the term “Indian Lands” in the committee briefings to also include Alaskan Native Village areas in remote Alaska and proposed a documented definition or a technical amendment specifically stating that Alaskan Native Villages or Indian Lands in remote Alaska shall be treated as reservation and trust lands.

    Response: The Committee agreed with the commenters on the ambiguity of the term “Indian Lands,” and clarified the regulation at § 1000.330 by changing “Indian Lands in Remote Alaska” to “For Remote Alaska as designated by the U.S. Census Bureau, Alaska Formula Areas in Remote Alaska shall be treated as Reservation and Trust Lands” for purposes of this paragraph.

    Comment: Require HUD to issue a report on data source and update data source if necessary (Proposed § 1000.330(d)). A commenter recommended that the volatility control provision, in § 1000.331, be retained if HUD proceeds with using the ACS, as adjusted, to determine the variables described in § 1000.324. The commenter also recommended that the rule require HUD to renegotiate this provision if it determines that the use of ACS data or U.S. Census Bureau county level population estimates for Native Americans results in inaccurate figures. Specifically, the commenter recommended the addition of the following provision:

    § 1000.330(d). After fiscal year 2018 but before fiscal year 2023, HUD shall prepare a report on the use of the data sources in this Section, including whether the data sources provide reliable information on the funding variables described on § 1000.324, and provide tribes an opportunity to comment on the report. If the report determines that the data sources used in this section result in unreliable data, HUD shall propose a more reliable data source.

    Response: The Committee considered this comment and agreed not to add the language proposed by the commenter. In reaching this decision, the Committee notes that the language recommended is ambiguous. Additionally, the IHBG Negotiated Rulemaking Data Study Group extensively evaluated all data sources used in the formula during negotiated rulemaking. The resulting report outlining the Committee's Data Study Group's process and final recommendations to the Committee was published with the proposed rule.

    Comment: The American Community Survey (ACS) data is unreliable. One commenter stated that they did not support § 1000.330(b)(ii) because the ACS is neither reflective nor representative of the commenter's tribal community. The commenter also stated that the flaws in the ACS data cannot be fixed by a weighting that uses the ACS count of American Indian and Native persons. Another commenter questioned the accuracy of ACS data given the sampling, response and inclusion rates, as well as its failure to capture tribal enrollment information. The commenter concluded that reliance on these data would harm poorer tribes with the worst housing, and thus disproportionately affect the funding accessible to them via the need component of the IHBG funding formula.

    Response: The Committee's Data Study Group did a thorough review of the ACS as a data source. Although consensus was not achieved on using the ACS as a data source, HUD has determined that the ACS is the most current and accurate data available for measuring the need for funding under the IHBG. The ACS data are more current than the data currently being used in the formula and are available for all eligible tribes, as discussed in the final Data Study Group Report. HUD recognizes that the ACS data does have some limitations. In addition, the 4.88 percent undercount of the 2010 Decennial Census for Reservation and Trust Lands is potentially present in the ACS because the ACS uses the Decennial Census, adjusted for post Census population growth, as its base data for weighting the ACS.

    HUD is committed to work with the Census Bureau to improve the accuracy of the counts. Tribes may still challenge the ACS data.

    D. Comments Regarding Volatility Control (§ 1000.331).

    Comment: The Committee should clarify the volatility control provision. Several commenters stated that a strict construction of § 1000.331(a) would defeat the intent of the Committee in agreeing to the provision. According to these commenters, the intent of § 1000.331(a) was to limit the impact of adopting a new data source (ACS) on those tribes that will be significantly and adversely affected by that conversion. The commenters wrote that as written, however, the relief would only be available if the tribe can show that the greater than 10 percent needs grant decline occurred “solely as a direct result of the introduction” of the ACS. The commenters stated that the record of the Committee proceedings indicates that was not the Committee's intent. One commenter presented several examples, including one which provided that if a tribe suffered a 65 percent reduction and can trace only 64.9 percent of its reduction to adoption of the ACS it would be disqualified from receiving any volatility control assistance, because its decline would not have been “solely as a direct result of the introduction” of ACS. The commenters recommended that § 1000.331(a) be revised by substituting “primarily as a result” for “solely as a direct result.” These same commenters also recommended that the intent of § 1000.331(a) be clarified by adding a definition for “primarily as a result” to read, “As used in this section, `primarily as a result' means that the introduction of a new data source, in-and-of-itself, would result in greater than a 10 percent decline in the tribe's need component allocation, irrespective of any declines attributable to causes other than introduction of that data source.”

    Response: Ensuring that grantees have stable allocations is a priority for the Committee. The original intent of § 1000.331 was to protect tribes against significant fluctuations with the introduction of the Decennial Census and ACS data. When HUD introduces a new data set, HUD will not apply volatility control. When HUD introduces a new data source, HUD will apply volatility control. When HUD first introduces ACS data into the IHBG formula in Fiscal Year 2018, HUD will apply volatility control. When a new ACS data set is available from year to year, HUD will not apply volatility control. When new Decennial Census data is available and is introduced into the formula, HUD will apply volatility control (e.g., 2020 Decennial Census).

    HUD understands, however, the concern expressed by the commenters. HUD is able to isolate the impact on tribes' funding allocations that is due to the introduction of the ACS as a new data source. This ability to isolate the impact, and apply the control on the basis of that impact alone alleviates the concern of the commenters. HUD will continue to apply the same methodology to calculate the impacts of introduction of a new data source to avoid the concerns raised by the commenters with the agreed upon language.

    E. Comments Regarding Demolition and Rebuilding of Formula Current Assisted Stock (FCAS) Units (§ 1000.318(d))

    Comment: Recommended language for demolition and rebuilding should provide maximum flexibility to tribes. One commenter supported the preamble definition of demolition “as occurring only when a recipient voluntarily demolishes units in order to clear a site for a new replacement unit.” The commenter also recommended that the Committee define “demolition” in a way as to provide maximum flexibility to tribes. Flexibility is important, according to the commenter, because a significant problem that many tribes face are housing units that are irreparably contaminated by methamphetamine production and tribes must engage in time-consuming testing of a substance that cannot be seen or smelled.

    The second problem, according to the commenter, is the potentially limited time for rebuilding the home where the weather conditions can delay or completely halt construction from October through May. Tribes should not lose their FCAS funds if these homes are not rebuilt within the one-year time frame. The commenter recommended, therefore, a definition for demolition that takes these concerns into account and allows tribes and TDHEs maximum flexibility in rehabilitation and reconstruction of FCAS units that are destroyed or demolished due to events beyond the control of the tribe/TDHE.

    Response: The Committee appreciates the commenter's recommendation to define demolition in a way that maximizes flexibility for tribes. As stated, the intent of § 1000.318(d) is to incentivize tribes to rebuild expeditiously within a reasonable time period. The Committee understands the unique construction constraints faced by some IHBG recipients due to short building seasons, units contaminated by methamphetamine or other contaminants, remote locations and high construction costs and has considered these factors in the structuring of the demolition provision.

    Comment: Recommended language for demolition and rebuilding. Another commenter stated that section 302(b)(1)(C) of NAHASDA triggers a one-year time period at the time of demolition, regardless of how demolition occurs. The commenter stated that section 302(b)(1)(C) does not require completion of the unit within the one-year period, but requires that the construction process begin within one year of the demolition. Based on this interpretation of the statute, the commenter recommended that the Committee adopt the following language:

    • If a FCAS unit is demolished, it will continue to be eligible as a FCAS unit if the following conditions are met:

    ○ Construction of a replacement unit begins within one year of the time the original unit is demolished. If the unit is demolished by the occurrence of a natural disaster or fire, demolition shall be defined to occur on the date of the event. If the unit is demolished by the voluntary act of the recipient, demolition shall be defined to occur on the date that the replacement unit is demolished to a point where construction can commence;

    ○ The replacement unit is complete within 24 months from the commencement of construction, except that if more than 5 units are being replaced, the time for completion of the units shall be 36 months.

    Response: The Committee appreciates the recommendation submitted by the commenter on the demolition provision pursuant to § 1000.318(d). The Committee considered the proposed language but ultimately concluded that the statute requires that rebuilding be completed within one year of the demolition. The Committee agreed by consensus, however, to a revised § 1000.318(d) that provides that the one-year clock does not begin until demolition is complete.

    Comment: Recommended language for demolition and rebuilding based on defining the terms “demolish” and “rebuilds”. Another commenter wrote that the purposes of the statute is to create an incentive for tribes to expeditiously rebuild housing units that are so badly damaged, as to require demolition and to give tribes a reasonable period of time to rebuild. The commenter wrote that Congressional intent was to incentivize rebuilding in a reasonable time but balance that goal with the realities that Indian country suffers not only from remoteness but short construction seasons. The commenter recommended that the Committee define the terms “demolish” and “rebuilds” using a standard dictionary definition and consistent with Congressional intent. With regard to the term “demolish” the commenter stated that standard dictionary definitions convey a sense of completeness and define this term as requiring a deliberate, human, caused process. In defining “rebuilds” the commenter notes that the statute uses the present active tense. With these foundations, the commenter recommends that the Committee adopt the following provision:

    • If an affordable housing unit is demolished and rebuilding occurs within 1 year of demolition of the unit, the unit may continue to be considered Formula Current Assisted Stock.

    • As used in this subsection:

    ○ Demolition” means the intentional act or process of the tribe, and demolition occurs when the structure is completely destroyed and its component parts, including demolition debris, are removed from the site; and

    ○ Rebuilding occurs when the tribe has made substantial, initial, on-going site improvements to the site of the replacement housing unit, including laying or altering the foundation.

    Response: The Committee appreciates the commenter's thoughtful responses on the demolition issue posed in the proposed rule. Specifically, the comments regarding the past and present tense of the terms “demolish” and “rebuilds” respectively, as used in the statute, offered the Committee a useful starting point for developing a revised section addressing demolition. The Committee also agrees that the purpose of the statute is to create an incentive for tribes to expeditiously rebuild housing units. The revised demolition regulation agreed to by consensus at § 1000.318(d) incorporates and builds on the comments provided.

    F. Other Issues and Comments.

    Comment: There is a need for a federally conducted National Tribal Survey. Several commenters recommended that tribes continue to find common ground on changes to the IHBG funding formula and push for the self-determined goal of building tribally driven data sources. These commenters also stated that it is the duty of HUD and the Federal government to assist tribes in seeking data sources that most appropriately reflect and represent the conditions and characteristics of their tribal communities and that this includes providing tribes the training and technical assistance to develop their own tribal data sources for housing and community development purposes.

    Other commenters recommended that HUD should consider developing or using a federally conducted national tribal survey to collect demographic and enrollment information for NAHASDA-eligible tribes. According to the commenters, a National Tribal Survey, jointly designed by HUD and tribes, would collect demographic data directly related to the IHBG formula. The commenters wrote that the survey could be administered by the Census Bureau under contract from HUD, much the same way the American Housing Survey is now done for special data related to public housing information. The commenters concluded that there would be many advantages to such a survey, including a focus on information essential for IHBG fund allocation, providing flexibility in survey design to accommodate future changes to the IHBG formula, and using said survey to inform a more accurate allocation of funds in other Indian programs like education and health care.

    Response: The Committee emphasizes that the IHBG Negotiated Rulemaking Data Study Group examined the development of a National Tribal Survey that would rely on tribally driven data sources. The pros and cons of the Committee's analysis are presented in the Final Data Study Group Report and, more particularly, the individual data source evaluations in the appendices. No consensus could be reached on using any alternative to ACS data, including a National Tribal Survey. HUD has stated that it does not have the resources to design or administer a National Tribal Survey, or to audit data collection efforts to ensure that data from tribal sources is being collected in a fair and equitable manner, and thus unusable in the IHBG formula.

    Comment: Impact on other organizations that use the IHBG factors or data. One commenter responded to HUD's request for public comment regarding how the proposed changes to the IHBG formula would potentially impact nonprofits, state and local governments, and other organizations that are not IHBG recipients. The commenter stated that the effect of the IHBG formula on outside stakeholders should have no bearing on the implementation of changes to the IHBG formula. The commenter also stated that the purpose of the IHBG formula is to allocate federal Indian Housing resources to eligible recipients to address the housing needs of Alaska Native and American Indian families and that impact on other entities is not within the scope of factors that HUD may consider in the course of negotiating the IHBG formula.

    Response: The Committee is aware that some organizations, such as the U.S. Department of Transportation, use the IHBG formula for various reasons. Nevertheless, the Committee agrees with the commenter that the effect of the IHBG formula on these outside stakeholders should have no bearing on whether such changes are implemented. As stated by the commenter, section 302 of NAHASDA delineates the factors that the Committee must consider in determining the formula. HUD is not authorized to consider in the course of negotiating the IHBG formula how elements of the formula might impact entities that are not IHBG recipients.

    Comment: The negotiated rulemaking was successful. One commenter thanked everyone who was involved in the negotiated rulemaking process and described the process as thoughtful and deliberate, and the final product the best that could be expected given the limitations on current funding for the program. The commenter expressed support for all of the final proposed changes, and described the rule as necessary, fair and consistent with the mission of the Committee and the IHBG Program overall, and developed in the spirit of compromise. The commenter concluded that moving to an updated data source is the single greatest achievement of this Committee and urged HUD to adopt this final language and begin implementation as provided in the proposed rule. Another commenter wrote to recognize the many significant, positive outcomes of this negotiated rulemaking. This commenter stated that despite the somewhat distributive nature of this process, HUD and tribes were able to reach consensus on numerous important issues, including the minimum allocations of carryover funds, the undisbursed funds factor, the volatility control and establishing adjustments for undercounts. Both commenters agreed that the negotiated rulemaking process was successful.

    Response: The Committee appreciates these comments and agrees that this Negotiated Rulemaking was educational, productive and successful. The Committee also extends its appreciation to each tribal representative and to HUD leadership and staff for their hard work and dedication to the Negotiated Rulemaking process, and believes that this final rule reflects the thoughtful and deliberate work of everyone involved in this rulemaking, The Committee believes that the success of the Negotiated Rulemaking rests on the spirit of cooperation and hard work that tribal representatives and HUD leadership and staff brought to the negotiations.

    IV. Findings and Certifications Regulatory Review—Executive Orders 12866 and 13563

    Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This final rule was determined not to be a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and therefore was not reviewed by OMB.

    Paperwork Reduction Act

    The information collection requirements contained in this rule have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0218. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis for any rule that is subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The requirements of this rule apply to Indian tribal governments and their tribal housing authorities. Tribal governments and their tribal housing authorities are not covered by the definition of “small entities” under the RFA. Accordingly, the undersigned certifies that this rule will not have a significant impact on a substantial number of small entities.

    Executive Order 13132, Federalism

    Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

    Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule will not impose any federal mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.

    Environmental Review

    This rule is a statutorily required establishment of a rate determination that does not constitute a development decision that affects the physical condition of specific project areas or buildings sites. Accordingly, under 24 CFR 50.19(c)(6), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance Number (CFDA) for Indian Housing Block Grants is 14.867, and the CFDA for Title VI Federal Guarantees for Financing Tribal Housing Activities is 14.869.

    List of Subjects in 24 CFR Part 1000

    Aged, Community development block grants, Grant programs—housing and community development, Grant programs—Indians, Indians, Individuals with disabilities, Public housing, Reporting and recordkeeping requirements.

    Accordingly, for the reasons described in the preamble, HUD amends 24 CFR part 1000 as follows:

    PART 1000—NATIVE AMERICAN HOUSING ACTIVITIES 1. The authority citation for 24 CFR part 1000 continues to read as follows: Authority:

    25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).

    2. In § 1000.302, revise paragraph (2)(i) of the definition of “Formula area” to read as follows:
    § 1000.302 What are the definitions applicable for the IHBG formula?

    Formula area. * * *

    (2) * * *

    (i) For a geographic area not identified in paragraph (1) of this definition, and for expansion or re-definition of a geographic area from the prior year, including those identified in paragraph (1) of this definition, the Indian tribe must submit, on a form agreed to by HUD, information about the geographic area it wishes to include in its Formula Area, including proof that the Indian tribe, where applicable, has agreed to provide housing services pursuant to a Memorandum of Agreement (MOA) with the tribal and public governing entity or entities of the area, or has attempted to establish such an MOA, and is providing substantial housing services and will continue to expend or obligate funds for substantial housing services, as reflected in its Indian Housing Plan and Annual Performance Report for this purpose.

    § 1000.306 [Amended]
    3. In § 1000.306, remove paragraph (c). 4. Revise § 1000.310 to read as follows:
    § 1000.310 What are the components of the IHBG formula?

    The IHBG formula consists of four components:

    (a) Formula Current Assisted Stock (FCAS) (§ 1000.316);

    (b) Need (§ 1000.324);

    (c) 1996 Minimum (§ 1000.340); and

    (d) Undisbursed IHBG funds factor (§ 1000.342).

    5. In § 1000.316, add paragraph (c) to read as follows:
    § 1000.316 How is the Formula Current Assisted Stock (FCAS) Component developed?

    (c) Conversion. Conversion of FCAS units from homeownership (Mutual Help or Turnkey III) to low-rent or from low-rent to a home ownership program.

    (1) If units were converted before October 1, 1997, as evidenced by an amended ACC, then those units will be counted for formula funding and eligibility purposes as the type of unit to which they were converted.

    (2) If units were converted on or after October 1, 1997, the following applies:

    (i) Funding type. Units that converted after October 1, 1997 will be funded as the type of unit specified on the original ACC in effect on September 30, 1997.

    (ii) Continued FCAS eligibility. Whether or not it is the first conversion, a unit converted after October 1, 1997, will be considered as the type converted to when determining continuing FCAS eligibility. A unit that is converted to low-rent will be treated as a low-rent unit for purposes of determining continuing FCAS eligibility. A unit that is converted to homeownership will be treated as a homeownership unit for purposes of determining continuing FCAS eligibility.

    (3) The Indian tribe, TDHE, or IHA shall report conversions on the Formula Response Form.

    6. Amend § 1000.318 by redesignating paragraphs (b) and (c) as paragraphs (c) and (d), respectively, and adding paragraphs (b) and (e) to read as follows:
    § 1000.318 When do units under Formula Current Assisted Stock cease to be counted or expire from the inventory use for the formula?

    (b)(1) A Mutual Help or Turnkey III unit not conveyed after the unit becomes eligible for conveyance by the terms of the MHOA may continue to be considered Formula Current Assisted Stock only if a legal impediment prevented conveyance; the legal impediment continues to exist; the tribe, TDHE, or IHA has taken all other steps necessary for conveyance and all that remains for conveyance is a resolution of the legal impediment; and the tribe, TDHE, or IHA made the following reasonable efforts to overcome the impediments:

    (i) No later than four months after the unit becomes eligible for conveyance, the tribe, TDHE, or IHA creates a written plan of action, which includes a description of specific legal impediments as well as specific, ongoing, and appropriate actions for each applicable unit that have been taken and will be taken to resolve the legal impediments within a 24-month period; and

    (ii) The tribe, TDHE, or IHA has carried out or is carrying out the written plan of action; and

    (iii) The tribe, TDHE, or IHA has documented undertaking the plan of action.

    (2) No Mutual Help or Turnkey III unit will be considered FCAS 24 months after the date the unit became eligible for conveyance, unless the tribe, TDHE, or IHA provides evidence from a third party, such as a court or state or federal government agency, documenting that a legal impediment continues to prevent conveyance. FCAS units that have not been conveyed due to legal impediments on December 22, 2016 shall be treated as having become eligible for conveyance on December 22, 2016.

    (e) A unit that is demolished pursuant to a planned demolition may be considered eligible as a FCAS unit if, after demolition is completed, the unit is rebuilt within one year. Demolition is completed when the site of the demolished unit is ready for rebuilding. If the unit cannot be rebuilt within one year because of relative administrative capacities and other challenges faced by the recipient, including, but not limited to geographic distribution within the Indian area and technical capacity, the Indian tribe, TDHE or IHA may request approval for a one-time, one-year extension. Requests must be submitted in writing and include a justification for the request.

    7. In § 1000.326, revise paragraph (a)(3), redesignate paragraph (c) as paragraph (d), and add a new paragraph (c) to read as follows:
    § 1000.326 What if a formula area is served by more than one Indian tribe?

    (a) * * *

    (3) In cases where a State recognized tribe's formula area overlaps with the formula area of a Federally recognized Indian tribe, the Federally recognized Indian tribe receives the allocation for the formula area up to its population cap, and the State recognized tribe receives the balance of the overlapping area (if any) up to its population cap.

    (c) Upon receiving a request for expansion or redefinition of a tribe's formula area, if approving the request would create an overlap, HUD shall follow the notice and comment procedures set forth in paragraph (2)(ii) of the definition of “Formula area” in § 1000.302.

    8. Add § 1000.329 to read as follows:
    § 1000.329 What is the minimum total grant allocated to a tribe if there is carryover funds available?

    (a) If in any given year there are carryover funds, then HUD will hold the lesser amount of $3 million or available carryover funds for additional allocations to tribes with grant allocations of less than 0.011547 percent of that year's appropriations. All tribes eligible under this section shall receive a grant allocation equal to 0.011547 percent of that year's appropriations.

    (b)(1) If the set-aside carryover funds are insufficient to fund all eligible tribes at 0.011547 percent of that year's appropriations, the minimum total grant shall be reduced to an amount which can be fully funded with the available set-aside carryover funds.

    (2) If less than $3 million is necessary to fully fund tribes under paragraph (a) of this section, any remaining carryover amounts of the set aside shall be carried forward to the next year's formula.

    (c) To be eligible, an Indian tribe must certify in its Indian Housing Plan the presence of any households at or below 80 percent of median income.

    (d) For purposes of this section, carryover funds means grant funds voluntarily returned to the formula or not accepted by tribes in a fiscal year.

    9. Revise § 1000.330 to read as follows:
    § 1000.330 What are the data sources for the need variables?

    (a) The sources of data for the need variables shall be data that are available and collected in a uniform manner that can be confirmed and verified for all AIAN households and persons living in an identified area. Until fiscal year 2018, the data used are 2000 U.S. Decennial Census data and any HUD-accepted Census challenges. The 2000 U.S. Decennial Census data shall be adjusted annually using IHS projections based upon birth and death rate data provided by the National Center for Health Statistics.

    (b)(1) Beginning fiscal year 2018, the data source used to determine the AIAN persons variable described in § 1000.324(g) shall be the most recent U.S. Decennial Census data adjusted for any statistically significant undercount for AIAN population confirmed by the U.S. Census Bureau and updated annually using the U.S. Census Bureau county level Population Estimates for Native Americans. For Remote Alaska as designated by the U.S. Census Bureau, Alaska Formula Areas in Remote Alaska shall be treated as Reservation and Trust Lands, unless the U.S. Census Bureau includes Remote Alaska in their Census Coverage Measurement or comparable study. The data under this paragraph (b) shall be updated annually using the U.S. Census Bureau county level Population Estimates for Native Americans.

    (2) Beginning fiscal year 2018, the data source used to determine the variables described in paragraphs (a) through (f) of § 1000.324 shall initially be the American Community Survey (ACS) 5-year Estimates.

    (c) Indian tribes may challenge the data described in this section pursuant to § 1000.336.

    10. Add § 1000.331 to read as follows:
    § 1000.331 How will the impacts from adoption of a new data source be minimized as the new data source is implemented?

    (a) To minimize the impact of funding changes based on the introduction of a new data source under § 1000.330, in fiscal year 2018 and each year thereafter, if, solely as a direct result of the introduction of a new data source, an Indian tribe's allocation under the need component of the formula is less than 90 percent of the amount it received under the need component in the immediate previous fiscal year, the Indian tribe's need allocation shall be adjusted up to an amount equal to 90 percent of the previous year's need allocation.

    (b) Nothing in this section shall impact other adjustments under this part, including minimum funding, census challenges, formula area changes, or an increase in the total amount of funds available under the need component.

    (c) In the event of a decrease in the total amount of funds available under the need component, an Indian tribe's adjusted allocation under paragraph (a) of this section shall be reduced by an amount proportionate to the reduced amount available for distribution under the need component of the formula.

    (d) Adjustments under paragraph (b) or (c) of this section shall be made to a tribe's need allocation after adjusting that allocation under paragraph (a) of this section.

    11. Revise § 1000.336 as follows: a. In paragraph (a)(6), remove “and”; b. In paragraph (a)(7), remove the period and add in its place “; and”; c. Add paragraph (a)(8); and d. Revise paragraphs (d), (e), and (f).

    The addition and revisions read as follows:

    § 1000.336 How may an Indian tribe, TDHE, or HUD challenge data or appeal HUD formula determinations?

    (a) * * *

    (8) The undisbursed funds factor.

    (d) An Indian tribe or TDHE that seeks to appeal data or a HUD formula determination, and has data in its possession that are acceptable to HUD, shall submit the challenge or appeal in writing with data and proper documentation to HUD. An Indian tribe or TDHE may appeal the undisbursed funds factor no later than 30 days after the receipt of the formula determination. Data used to challenge data contained in the U.S. Census must meet the requirements described in § 1000.330(a). Further, in order for a census challenge to be considered for the upcoming fiscal year allocation, documentation must be submitted by March 30th.

    (e) HUD shall respond to all challenges or appeals no later than 45 days after receipt and either approve or deny the appeal in writing, setting forth the reasons for its decision.

    (1) If HUD challenges the validity of the submitted data HUD and the Indian tribe or TDHE shall attempt in good faith to resolve any discrepancies so that such data may be included in the formula allocation.

    (2) If HUD denies a challenge or appeal, the Indian tribe or TDHE may request reconsideration of HUD's denial within 30 calendar days of receipt of HUD's denial. The request shall be in writing and set forth justification for reconsideration.

    (3) HUD shall in writing affirm or deny the Indian tribe's or TDHE's request for reconsideration, setting forth HUD's reasons for the decision, within 20 calendar days of receiving the request. HUD's denial of a request for reconsideration shall constitute final agency action.

    (4) If HUD approves the Indian tribe or TDHE's appeal, HUD will adjust to the Indian tribe's or TDHE's subsequent fiscal year allocation to include only the disputed fiscal year(s).

    (f) In the event HUD questions whether the data contained in the formula accurately represents the Indian tribe's need, HUD shall request the Indian tribe to submit supporting documentation to justify the data and, if applicable, to provide a commitment to serve the population indicated in the geographic area.

    12. Add § 1000.342 to subpart D to read as follows:
    § 1000.342 Are undisbursed IHBG funds a factor in the grant formula?

    Yes, beginning fiscal year 2018. After calculating the initial allocation calculation for the current fiscal year by calculating FCAS, need, the 1996 Minimum, and repayments or additions for past over- or under-funding for each Indian tribe, the undisbursed funds factor shall be applied as follows:

    (a) The undisbursed funds factor applies if an Indian tribe's initial allocation calculation is $5 million or more and the Indian tribe has undisbursed IHBG funds in an amount that is greater than the sum of the prior 3 years' initial allocation calculations.

    (b) If subject to paragraph (a) of this section, the Indian tribe's grant allocation shall be the greater of the initial allocation calculation minus the amount of undisbursed IHBG funds that exceed the sum of the prior 3 years' initial allocation calculations, or its 1996 Minimum.

    (c) For purposes of this section, “undisbursed IHBG funds” means the amount of IHBG funds allocated to an Indian tribe in HUD's line of credit control system on October 1 of the fiscal year for which the allocation is made. For Indian tribes under an umbrella TDHE (a recipient that has been designated to receive grant amounts by more than one Indian tribe), if the Indian tribe's initial allocation calculation is $5 million or more, its undisbursed IHBG funds is the amount calculated by multiplying the umbrella TDHE's total balance in HUD's line of credit control system on October 1 of the fiscal year for which the allocation is made by a percentage based on the Indian tribe's proportional share of the initial allocation calculation of all tribes under the umbrella.

    (d) Amounts subtracted from an initial allocation calculation under this section shall be redistributed under the need component among all Indian tribes not subject to paragraph (a) of this section (while also retaining the 1996 Minimum).

    13. Revise appendices A and B of part 1000 to read as follows: Appendix A to Part 1000—Indian Housing Block Grant Formula Mechanics

    This appendix shows the different components of the Indian Housing Block Grant (IHBG) formula. The following text explains how each component of the IHBG formula is calculated.

    1. The first step in running the IHBG formula is to determine the amount available for allocation in the Fiscal Year (FY). It is the sum of:

    (a) The FY appropriation for the IHBG program less amounts in the Appropriations Act mandated for purposes other than the formula allocation.

    (b) The net amount, if any, made available as a result of corrections for over- or under-allocations in prior FYs.

    (c) The amount, if any, made available pursuant to § 1000.536.

    (d) The amounts, if any, made available because tribes voluntarily returned, or did not accept, the amounts allocated to them in prior FYs, defined as “carryover” (see § 1000.329).

    2. If there is carryover as defined in § 1000.329, the amount of carryover up to $3 million, is then held aside for allocation under the minimum total grant provisions of the formula (see 11 below).

    3. The IHBG formula first calculates the amount each tribe is allocated under the Formula Current Assisted Stock (FCAS) component (See §§ 1000.310 through 1000.322). The FCAS component is comprised of two parts, Operating Subsidy (§ 1000.316(a)) and Modernization (§ 1000.316(b)).

    (a) The Operating Subsidy component is calculated in two steps, as follows:

    (i) Each tribe's counts of Low Rent, Homeownership (Mutual Help and Turnkey III), and Section 8 units are multiplied by the National Per Unit Subsidy for operations for that category of unit, which is a 1996 index for the type of unit that is adjusted for inflation (see § 1000.302 defining National Per Unit Subsidy). The amounts are summed to create an initial calculation of the operating subsidy component.

    (ii) The initial operating subsidy component amount is then adjusted for local area costs, using an adjustment factor called the AELFMR. The AELFMR factor is calculated for each tribe in three steps. First, an Allowable Expense Level (AEL) factor is calculated by dividing the tribe's AEL, a historic per-unit measure of operating cost, by the national weighted average AEL (see § 1000.302 defining Allowable Expense Level). Second, a Fair Market Rent (FMR) factor is calculated by dividing the tribe's FMR amount, an area-specific index published annually by HUD (see § 1000.302 Fair Market Rent factor), by the national weighted average FMR. Third, an AELFMR factor is created by assigning each tribe the greater of its AEL or FMR factor, and dividing that figure by the national weighted average AELFMR. In all cases, when the national average figure is calculated, tribes are weighted by the amount of their initial operating subsidy as calculated in 3(a)(i).

    (See § 1000.320).

    (b) The Modernization component is determined using two methods depending on the number of public housing units that a tribe's housing authority operated prior to the Native American Housing and Self-Determination Act.

    (i) For all tribes, the number of Low Rent, Mutual Help, and Turnkey III units are multiplied by the National Per Unit Subsidy for modernization from 1996 adjusted for inflation (see § 1000.302 defining National Per Unit Subsidy).

    (ii) For Indian tribes with an Indian Housing Authority (IHA) that owned or operated fewer than 250 units on October 1, 1997, an alternative modernization component is calculated from the amount of funds the IHA received under the assistance program authorized by Section 14 of the 1937 Act (not including funds provided as emergency assistance) for FYs 1992 through 1997 (see § 1000.316(b)(2)). If this alternative calculation is greater than the amount calculated in paragraph (a) above, it is used to calculate the tribe's modernization component.

    (iii) The Modernization component is then multiplied by a local area cost adjustment factor based on the Total Development Cost (TDC) for the tribe (see § 1000.302) divided by the national weighted average of all TDCs weighted by each tribe's pre-adjustment Modernization calculation in paragraph (b)(i) or (ii) above as applicable.

    4. The total amounts calculated under the FCAS component for each tribe are then added together to determine the national total amount allocated under the FCAS component. That total is subtracted from the funds available for allocation less the carryover amount held aside for allocation under the minimum total grant provision in § 1000.329. The remainder is the total amount available for allocation under the need component of the IHBG formula.

    5. The first step in calculating need component is identifying weighted needs variables and adjusting for local area cost differences.

    (a) Need is first calculated using seven factors, where each factor is a tribe's share of the national totals for each of seven variables. The data used for the seven variables is described in § 1000.330. The person count variable is adjusted for statistically significant undercounts for reservations, trust lands and remote Alaska and for growth in population since the latest Decennial Census. The Population Cap provision in § 1000.302 Formula Area (5) is then applied. Needs data are capped if the American Indian and Alaska Native (AIAN) population counts exceed twice tribal enrollment unless a tribe can demonstrate that it serves more than twice as many non-tribal members as tribal members, in which case the cap is adjusted upward.

    The factors are weighted as set forth in § 1000.324, as follows:

    (i) 22 percent of the amount available for allocation under the needs component are allocated by the share of the total AIAN households paying more than 50 percent of their income for housing and living in each tribe's Formula Area (see § 1000.302);

    (ii) 25 percent are allocated by the share of the total AIAN households living in overcrowded housing and/or without kitchen or plumbing in each tribe's Formula Area;

    (iii) 15 percent are allocated by the share of the total AIAN households with an annual income less than or equal to 80 percent of Formula Median Income (see § 1000.302) living in each tribe's Formula Area less the tribe's number of FCAS.

    (iv) 13 percent are allocated by the share of AIAN households with annual income less than or equal to 30 percent of Formula Median Income living in each tribe's Formula Area;

    (v) 7 percent are allocated by the share of AIAN households with annual income between 30 percent and 50 percent of Formula Median Income living in each tribe's Formula Area;

    (vi) 7 percent are allocated by the share of AIAN households with annual income between 50 percent and 80 percent of Formula Median Income living in each tribe's Formula Area;

    (vii) 11 percent are allocated by the share of AIAN persons living in each tribe's Formula Area.

    (b) The result of these calculations for each tribe is then multiplied by a local area cost adjustment based on the Total Development Cost for the tribe (see § 1000.302) divided by the national weighted average of TDCs weighted by each tribe's pre-adjustment need calculation. (See § 1000.325).

    6. Each tribe's initial need allocation amount is then adjusted under the minimum need allocation provision of § 1000.328. Tribes that are allocated less than $200,000 under the FCAS component of the IHBG formula and that certify the presence of any households at or below 80 percent of median income in their Indian Housing Plans will be allocated no less than a specified minimum under the needs component of the formula. The specified minimum amount shall equal 0.007826 percent of the appropriation for that FY after set-asides. The increase in funding for the tribes allocated the minimum need amount is funded by a reallocation from other tribes whose needs allocation exceeds the minimum need amount. This is necessary in order to keep the total allocation within the appropriation level (See § 1000.328).

    7. Whenever a new Data Source is first introduced, provision is made to moderate extreme impacts through phase down adjustments. For purposes of these adjustments, new data sources (see § 1000.331) include the initial introduction of the American Community Survey and 2010 Decennial Census in 2018, and the initial introduction of the 2020 Decennial Census when it becomes available. Tribes whose allocation under the need component decrease by more than ten percent in the first year of introduction will have that decrease moderated by subsequent adjustments, as required to prevent a drop of more than ten percent per year in the tribes' needs allocation attributable solely to the introduction of the New Data Source. After allocation adjustments are made under § 1000.331 for a FY, the needs allocation of an Indian tribe whose needs allocation increased as a result of the introduction of a New Data Source under § 1000.331 shall be adjusted downward proportionate to its share of the total increase in funding resulting from the introduction of a New Data Source to keep the overall needs allocation within available appropriations.

    8. A tribe's preliminary total allocation for a grant is calculated by summing the amounts calculated under the FCAS and need components. This amount is compared to how much a tribe received in FY 1996 for operating subsidy and modernization under the 1937 Housing Act. If a tribe received more in FY 1996 for operating subsidy and modernization than it does under the IHBG formula allocation, its preliminary total allocation is adjusted up to the FY 1996 amount (See § 1000.340(b)). Indian tribes receiving more under the IHBG formula than in FY 1996 have their grant allocations adjusted downward to offset the upward adjustments for the other tribes.

    9. The initial allocation amount for the current FY is calculated by adding any adjustments for over- or under-funding occurring in prior FYs to the allocation calculated in the previous step. These adjustments typically result from late reporting of FCAS changes, or conveyances which occur in a timely manner following the removal of units from eligibility due to conveyance eligibility.

    10. The Undisbursed Funds Factor component is calculated based on the initial allocation amounts calculated above. Tribes with an initial allocation of $5 million or more and undisbursed IHBG grant amounts (the amount available to the tribe in HUD's line of credit control on October 1 of the FY for which the allocation is being made) in an amount greater than the sum of the prior 3 years' initial allocation calculations will have their initial allocation amount adjusted down by the difference between the tribe's undisbursed grant amounts and the sum of its prior 3 years' initial allocation calculations. If this adjustment would bring the tribe below its FY 1996 minimum (see § 1000.340(b)), then the tribe will be allocated its FY 1996 minimum. The sum of the adjustments will be reallocated among the other tribes proportionally under the need component.

    11. A final adjustment is made under § 1000.329 which allocates available carryover amounts up to $3 million to achieve minimum total allocations. Tribes that certify in their Indian Housing Plans the presence of any eligible households at or below 80 percent of median income and whose current FY formula allocation after the Undisbursed Funds Factor adjustment determined in the preceding step is less than 0.011547 percent of the FY appropriation after set-asides, will have their allocation adjusted upwards to 0.011547 percent of the FY appropriation after set-asides, or to a lesser percentage which can be achieved for all eligible tribes with available carryover held for this adjustment (see 2 above).

    Appendix B to Part 1000—IHBG Block Grant Formula Mechanisms

    1. The first step in running the Indian Housing Block Grant (IHBG) formula is to determine the total amount available for allocation in the current Fiscal Year (FY).

    ALLOCAMT = APPROP + ADJ1 + ADJ2 + CARRYOVER. Where: ALLOCAMT = amount available for allocation under the formula. APPROP = current FY appropriation for the IHBG program less amounts in the Appropriations Act mandated for purposes other than the formula allocation. ADJ1= net amount, if any, made available as a result of corrections for over-or under allocations in prior FYs. ADJ2 = amount, if any, made available under § 1000.536. CARRYOVER = amounts, if any, made available because tribes voluntarily returned, or did not accept, the amounts allocated to them in prior FYs.

    2. If there is carryover as defined in § 1000.329, the amount of carryover up to $3 million, is then held aside for allocation under the minimum total grant provisions of the formula (see Step 10), then:

    MGHOLD = amount set-aside for allocation under minimum total grant provision. If CARRYOVER = 0, MGHOLD = 0. If CARRYOVER > 0 and CARRYOVER < = $3 million, MGHOLD = CARRYOVER. If CARRYOVER > $3 million, MGHOLD = $3 million.

    3. The FCAS component is calculated first. FCAS consists of two parts, Operating Subsidy (OPSUB) and Modernization (MOD), such that:

    FCAS = OPSUB + MOD.

    a. OPSUB is calculated in two steps, as follows:

    (i) First, the number of Low-Rent, Section 8 and homeownership units are multiplied by the applicable national per unit subsidy (§ 1000.302 National Per Unit Subsidy). The amounts are summed to create an initial calculation of the Operating Subsidy component.

    OPSUB1 = [LR * LRSUB] + [(MH + TK) * HOSUB] + [S8 * S8SUB]. Where: OPSUB1 = initial calculation of Operating Subsidy component. LR = number of Low-Rent units. LRSUB = national per unit subsidy for Low-Rent units ($2,440 * INF). INF = adjustment for inflation since 1995, as determined by the Consumer Price Index for housing. MH + TK = number of Mutual Help and Turnkey III units. HOSUB = national per unit subsidy for Homeownership units ($528 * INF). S8 = number of Section 8 units. S8SUB = national per unit subsidy for Section 8 units = ($3,625 * INF).

    (ii) The initial Operating Subsidy component amount is then adjusted for local area costs, using an adjustment factor called the AELFMR. The AELFMR factor is calculated for each tribe in three steps. First, an AEL factor is calculated by dividing the tribe's Allowable Expense Level (AEL), a historic per-unit measure of operating cost, by the national weighted average AEL (see § 1000.302 defining Allowable Expense Level)

    AEL FACTOR = AEL/NAEL. Where: AEL = local Allowable Expense Level. NAEL = national weighted average for AEL, where the weight is a tribe's initial calculation of operating subsidy.

    Second, an FMR factor is calculated by dividing the tribe's Fair Market Rent amount (FMR), an area-specific index published annually by HUD (see § 1000.302 Fair Market Rent factor), by the national weighted average FMR.

    FMR FACTOR = FMR/NFMR. Where: FMR= local Fair Market Rent. NFMR = national weighted average for FMR, where the weight is a tribe's initial calculation of operating subsidy.

    Third, an AELFMR factor is created by assigning each tribe the greater of its AEL or FMR factor, and dividing that figure by the national weighted average AELFMR. In all cases, when the national average figure is calculated, tribes are weighted by the amount of their initial operating subsidy as calculated in 3(a)(i) above. (See § 1000.320).

    AELFMRFACTOR = final local area cost adjustment factor (AELFACTOR or FMRFACTOR)/NAELFMR. Where: NAELFMR = national weighted average for greater of AEL Factor or FMR factor, where weight is a tribe's initial calculation of operating subsidy

    Finally, the AELFMR factor is used to adjust the initial operating subsidy calculation for differences in local area costs.

    OPSUB = OPSUB1 * AELFMRFACTOR. Where: OPSUB = Operating Subsidy component after adjustment for local cost differences.

    b. The modernization component, MOD, is calculated by two different methods, depending on whether the tribe had an Indian housing authority (IHA) that owned or operated more than 250 public housing units on October 1, 1997.

    (i) MOD1 is calculated for all tribes and considers the number of Low-Rent, and Mutual Help and Turnkey III FCAS units. Each of these is adjusted by the national per-unit modernization subsidy

    MOD1 = [LR + MH + TK] * MODPU. Where: LR = number of Low-Rent units. MH = number of Mutual Help units. TK = number of Turnkey III units. MODPU = national per-unit amount for modernization in 1996 adjusted for inflation ($1,974 * INF). INF = adjustment for inflation since 1995, as determined by the Consumer Price Index for housing.

    (ii) MODAVG is calculated only for tribes that had an IHA that owned or operated fewer than 250 public housing units on October 1, 1997, as the annual average amount they received for FYs 1992 through 1997 under the assistance program authorized by section 14 of the 1937 Act (not including emergency assistance). If this alternative calculation is greater than the amount calculated in (i), it is used to calculate the tribe's modernization component.

    MODAVG = Average (FY 1992 to FY 1997) amount received by Section 14 of the 1937 Act. If MODAVG > MOD1, MOD1 = MODAVG.

    c. The modernization calculation is adjusted for local area costs:

    MOD = MOD1 * (TDC/NTDC). Where: TDC = Local Total Development Costs defined in § 1000.302. NTDC = weighted national average for TDC, where the weight is the initial calculation of modernization amount of tribe with CAS.

    4. Now that calculation for FCAS is complete, the amount allocated using the need component of the formula can be determined:

    NEEDALLOCAMT = ALLOCAMT − MGHOLD − NATCAS. Where: NEEDALLOCAMT = amount allocated using the need component of the formula. ALLOCAMT = amount available for allocation under the formula. MGHOLD = amount held for allocation under minimum total grant provision. NATCAS = national summation of FCAS allocation for all tribes.

    5. The first step in calculating needs is identifying weighted needs variables and adjusting for local area cost differences.

    a. The basic needs calculation uses seven weighted criteria based on population and housing data in a tribe's Formula Area or share of Formula Area if Formula Areas overlap (see § 1000.302 Formula Area and § 1000.326) to allocate the funds available for the needs component. The person count variable is adjusted for statistically significant undercounts for reservations, trust lands and remote Alaska and for changes in population since the latest Decennial Census.

    PERADJ = PER * UCFACTOR * POPCHGFACTOR. Where: PER = American Indian and Alaskan Native (AIAN) persons as reported in the most recent Decennial Census. UCFACTOR= 1+ the percentage undercount identified by the Census by type of land (in 2010 1.0488 for reservation and trust lands only and assumed also to apply to remote Alaska). POPCHGFACTOR = the ratio of the most recent AIAN Census population estimate for county to the AIAN count for county from the Decennial Census.

    The Population Cap provision in § 1000.302 Formula Area (5) is then applied. Needs data are capped if AIAN population counts exceed twice tribal enrollment unless a tribe can demonstrate that it serves more than twice as many non-tribal members as tribal members, in which case the cap is adjusted upward.

    POPCAPTEST=1 if PERADJ > TEmultiplier * TE

    If POPCAPTEST=1, (tribes subject to Population Cap) then:

    PER = TEmultiplier * TE POPCAPADJF = PER/PERADJ

    For tribes NOT subject to Population Cap,

    PER = PERADJ and POPCAPADJF = 1.

    Where:

    POPCAPTEST = an indicator showing whether a tribe's needs data must be adjusted downward because its Formula Area population is disproportionally large relative to tribe's enrollment, TEmultiplier = 2, or a larger factor if justified by tribe on annual basis. TE = Tribal enrollment. POPCAPADJF = factor used to adjust household needs variables.

    An initial calculation of the needs component is then calculated by determining each tribe's share of national totals on each variable, and applying weights to the variables as specified in regulation.

    BASENEED = [(0.11 * (PER)/NPER) + (0.13 * HHLE30/NHHLE30) + (0.07 * HH30T50/NHH30T50) + (0.07 * HH50T80/NHH50T80) + (0.25 * OCRPR/NOCRPR) + (0.22 * SCBTOT/NSCBTOT) + (0.15 * HOUSHOR/NHOUSHOR)] * NEEDALLOCAMT. Where: PER = count of AIAN persons after adjustments. NPER = national total of PER. HHLE30 = count of AIAN households less than 30% of formula median income multiplied by POPCAPADJF. NHHLE30 = national total of HHLE30. HH30T50 = count of AIAN households 30% to 50% of formula median income multiplied by POPCAPADJF. NHH30T50 = national total of HH30T50. HH50T80 = count of AIAN households 50% to 80% of formula median income multiplied by POPCAPADJF. NHH50T80 = national total of HH50T80. OCRPR = count of AIAN households crowded or without complete kitchen or plumbing multiplied by POPCAPADJF. NOCRPR = national total of OCRPR. SCBTOT = count of AIAN households paying more than 50% of their income for housing multiplied by POPCAPADJF. NSCBTOT = national total SCBTOT. HOUSHOR = a measure of housing shortage calculated as (HHLE30 + HH30T50 + HH50T80)—(LR + MH + TKIII) NHOUSHOR = national total of HOUSHOR. NEEDALLOCAMT = amount allocated using the need component of the formula.

    b. The basic needs calculation is adjusted to reflect differences in local area costs.

    NEED = BASENEED * (TDC/NATDC). Where: TDC = Local Total Development Costs defined in § 1000.302. NATDC = average for TDC for all tribes weighted using BASENEED.

    6. The need allocation computed above is adjusted to take into account the minimum needs provision. Tribes allocated less than $200,000 under the FCAS component of the IHBG formula and that certify the presence of any households at or below 80 percent of median income in their Indian Housing Plan are allocated an additional amount so their needs allocation equals 0.007826 percent of the available appropriations for that FY after set-asides.

    MINNEED = APPROP * 0.00007826. Where: APPROP = current FY appropriation for the IHBG program less amounts in the Appropriations Act mandated for purposes other than the formula allocation.

    If in the first need computation, a qualified tribe is allocated less than the minimum needs funding level, its need allocation will go up. Other tribes whose needs allocations are greater than the minimum needs amount will have their allocations adjusted downward to keep the total allocation within available funds:

    If NEED < MINNEED and FCAS < $200,000 and income-based need has been identified in a tribe's IHP, then NEED1 = MINNEED. If NEED > = MINNEED, then NEED1 = NEED1 − {UNDERMIN$ * [(NEED1 − MINNEED)/OVERMIN$]}. Where: MINNEED = minimum needs amount. UNDERMIN$ = for all tribes qualifying for an increase under the minimum needs provision, sum of the differences between MINNEED and NEED1. OVERMIN$ = for all tribes with needs allocations larger than the minimum needs amount, the sum of the difference between NEED1 and MINNEED. 7. Whenever a new data source (see § 1000.331) is first introduced, provision is made to moderate extreme impacts through phase down adjustments. Tribes whose allocation under the need component decrease by more than ten percent in the first year of introduction will have that decrease moderated by subsequent adjustments, as required to prevent a drop of more than ten percent per year in the tribes' needs allocation attributable solely to the introduction of the new data source. A phase down adjustment schedule is calculated, containing adjustment amounts (PDADJn) for the first and all subsequent FYs, based on the amount allocated to a tribe under the need component in the FY prior to the introduction of the new data source using the old data source. That is, If NEED1NewDS < 0.9 * NEED1OldDS, then a tribe qualifies for a phase down adjustment (PDADJ) (see § 1000.331(c)). PDADJn = (((0.9n ) * NEED1OldDS)—NEED1NewDS), where n = 1 to ∞ provided PDADJn > 0 for at least one tribe. Where: NEED1NewDS = the amount the tribe would have received in the FY prior to the introduction of the new data source had the new data source been used to determine their need component in that FY. NEED1OldDS = the amount a tribe actually received in the FY prior to the introduction of the new data source based on the old data source. PDADJn = the size of the adjustment that qualifying tribes will receive in each year n, where the n represents the number of years elapsed since the introduction of the new data source and is equal to one in the first year.

    After allocation adjustments are made under § 1000.331 for a FY, the needs allocation of an Indian tribe whose needs allocation increased as a result of the introduction of a new data source shall be adjusted downward proportionate to its share of the total increase in funding resulting from the introduction of a new data source to keep the overall need component within available appropriations. For each tribe which benefitted from the introduction of the new data source, their share of the total gain is calculated and that share is used to determine the amount of contribution they will make in each year following the introduction of the new data source to allow the phase down adjustments to be made without exceeding the amount available for allocation.

    If NEED1NewDS > NEED1OldDS, then tribe gained from the introduction of the new data source and contributes a portion of their gain to offset the phase down adjustments. GAINSHR = (NEED1NewDS -NEED1OldDS)/TOTGAINYR1. CONTRIBn = GAINSHR * TOTPDADJn, Where: NEEDd1NewDS = the amount the tribe would have received in the FY prior to the of introduction of the new data source had the new data source been used to determine their needs funding in that FY. NEED1OldDS = the amount a tribe actually received in the FY prior to the introduction the new data source based on the old data source. GAINSHR = a tribe's share of the total gains realized by all tribes that benefitted from the introduction of the new data source. TOTGAINYR1 = the sum of the amounts that tribes gain from the introduction of the new data source in year one. CONTRIBn = the size of the contribution that non-qualifying tribes give in each year n, where the n represents the number of years elapsed since the introduction of the new data source and equal to one in the first year. TOTPDADJn = the total amount in each year n required to cover the cost of phase down adjustments in that year, i.e. S PDADJn.

    The initial needs allocation for each tribe is adjusted based on the phase down adjustments and contribution amounts in the phase down schedule.

    NEED1PD = NEED1 +_PDADJn − CONTRIBn. Where: NEED1PD = a tribe's allocation under the need component after applying the phase down adjustment schedule. NEED1= the initial calculation of need in the current FY from step 6 above. PDADJn = the size of the adjustment that qualifying tribes will receive in each year n, where the n represents the number of years elapsed since the introduction of the new data source and is equal to one in the first year. CONTRIBn = the size of the contribution that non-qualifying tribes give in each year n, where the n represents the number of years elapsed since the introduction of the new data source and equal to one in the first year.

    PDADJn and CONTRIBn as calculated in the initial phase down adjustment schedule may have to be adjusted downward in subsequent FYs if the total amount available for allocation under the needs Component (i.e. NEEDALLOCAMT in Step 4) is lower than the amount available for that purpose in the FY prior to the introduction of the new data source. If so, both PDADJn and CONTRIBn will be reduced by a factor which is the ratio of NEEDALLOCAMT in current FY to NEEDALLOCAMT in the year prior to the introduction of the new data source.

    Furthermore, when the 2020 Decennial Census or other new data source is introduced, a new phase down adjustment schedule will be calculated in a similar manner as that was calculated for FY 2018.

    8. A tribe's preliminary total allocation is calculated by summing the amounts calculated under the FCAS and need components that will serve as the basis for further adjustments in accordance with § 1000.340.

    GRANT1 = FCAS + NEED1PD. Where: GRANT1 = preliminary total allocation before applying 1996 Operating Subsidy and Modernization minimum funding (see Step 8), Undisbursed Funds Factor (see Step 9) and Minimum Grant provision (see Step 10). FCAS = Formula Current Assisted Stock component equal to OPSUB + MOD. NEED1PD = the Tribe's needs allocation after applying the phase down adjustment schedule.

    GRANT1 is compared to how much a tribe received in FY 1996 for operating subsidy and modernization under the 1937 Housing Act. If a tribe received more in FY 1996 for operating subsidy and modernization than its IHBG formula allocation, its preliminary total allocation is adjusted up to the FY 1996 amount (See § 1000.340(b)). Indian tribes receiving more under the IHBG formula than in FY 1996 have their grant allocations adjusted downward to offset the upward adjustment for the other tribes.

    TEST = GRANT1 − OPMOD96. If TEST is < = than 0, then GRANT2 = OPMOD96. If TEST is greater than 0 and GRANT1 > MINNEED, then: GRANT2 = GRANT1 − [UNDER1996 * (TEST/OVER1996)]. Where: TEST = variable to decide whether tribes qualify for adjustments under 1996 minimum funding. GRANT1 = preliminary total allocation before applying 1996 Operating Subsidy and Modernization minimum funding (see Step 8), Undisbursed Funds Factor (see Step 9) and Minimum Grant provision (see Step 10). OPMOD96 = funding received by tribe in FY 1996 for Operating Subsidy and Modernization. MINNEED = minimum needs amount. UNDER1996 = for all tribes with TEST less than 0, sum of the absolute value of TEST. OVER1996 = for all tribes with TEST greater than 0, sum of TEST. GRANT2 = preliminary total allocation after applying 1996 Operating Subsidy and Modernization minimum funding (see Step 8) but before applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant provision (see Step 10).

    9. The initial allocation amount for the current FY is calculated by adding any adjustments for over- or under-funding occurring in prior FYs to the allocation calculated in the previous step. These adjustments typically result from late reporting of FCAS changes, or conveyances.

    REPGRANT = GRANT2 + ADJUST1. Where: REPGRANT = Initial Allocation Amount in current FY (see § 1000.342). GRANT2 = preliminary total allocation after applying 1996 Operating Subsidy and Modernization minimum funding (see Step 8) but before applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant provision (see Step 10). ADJUST1 = adjustments for over- or under-funding occurring in prior FYs. 10. The Undisbursed Funds Factor is determined by subtracting the sum of each tribe's Initial Allocation Amount for the prior three FYs from the IHBG amounts in HUD's Line of Credit Control System (LOCCS) on October 1 of the FY for which the new allocation is being determined. If the undisbursed funds factor is > $0 and the tribe's initial allocation for the FY exceeds $5 million, its final allocation will be the initial allocation minus the Undisbursed Funds Factor or its 1996 minimum, whichever is greater. Reductions to the initial allocation amounts due to the Undisbursed Funds Factor are summed and redistributed to other tribes in proportion to their initial needs allocation, NEED1PD, calculated above. If REPGRANT > = $5 MILLION and UNDISB$ > (REPGRANTYR1 + REPGRANTYR2 + REPGRANTYR3), then UDFFtest = 1. Where: REPGRANT = Initial Allocation Amount in current FY. REPGRANTYR1 = Initial Allocation Amount in one year prior to current FY. REPGRANTYR2 = Initial Allocation Amount in two years prior to current FY. REPGRANTYR3 = Initial Allocation Amount in three years prior to current FY. UDFFTest = is an indicator as to whether the tribe will give up a portion of its needs allocation due to an excessive amount of undisbursed funds.

    For tribes whose UDFFtest = 1, a reduction will occur as follows: REPGRANTaftUDFF = (GRANT2 − (UNDISB$ − (REPGRANTYR1 + REPGRANTYR2 + REPGRANTYR3)) Except if, OPMOD96 > (GRANT2 − (UNDISB$ − (REPGRANTYR + REPGRANTYR2 + REPGRANTYR3)) then, REPGRANTaftUDFF = OPMOD96. Where: REPGRANTaftUDFF = Initial Allocation Amount in current FY adjusted for the Undisbursed Funds Factor. GRANT2 = preliminary total allocation after applying 1996 Operating Subsidy and Modernization minimum funding (see Step 8) but before applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant provision (see Step 10). UNDISB$ = amount in HUD's LOCCS on October 1 of the FY. REPGRANTYR1 = Initial Allocation Amount in one year prior to current FY. REPGRANTYR2 = Initial Allocation Amount in two years prior to current FY. REPGRANTYR3 = Initial Allocation Amount in three years prior to current FY. OPMOD96 = funding received by tribe in FY 1996 for Operating Subsidy and Modernization.

    So the UDFFadj = REPGRANTaftUDFF − GRANT2 and UDFFadjTOT= Absolute value of the sum of UDFF adjustments for tribes subject to reduction.

    If UDFFtest is not equal to 1, tribes receive a portion of the funds recovered under the UDFF provision based on their share of total needs excluding any tribes with UDFFtest = 1. For these tribes, then:

    UDFFadj = (NEED1PD/S Need1PD) * UDFFadjTOT). REPGRANTaftUDFF = REPGRANT + UDFFadj. Where: UDFFadj = amount of the Undisbursed Fund Factor adjustments. Negative amount represents excess undisbursed funds. Positive represents amounts being transferred to other tribes without excess undisbursed funds. NEED1PD = the Tribe's needs allocation after applying the phase down adjustment schedule. UDFFadjTOT = absolute value of the sum of Undisbursed Fund Factor adjustments for tribes that meet the criteria for reduction and is equal to the sum available for redistribution among other tribes based on their initial needs allocation. REPGRANTaftUDFF = Initial Allocation Amount in current FY adjusted for the Undisbursed Funds Factor. REPGRANT = Initial Allocation Amount in current FY.

    11. A final adjustment is made under § 1000.329 which allocates available carryover amounts up to $3 million to achieve minimum total allocations. Tribes that certify in their Indian Housing Plans the presence of any eligible households at or below 80 percent of median income and whose total allocation determined in the preceding step is less than 0.011547 percent of the FY appropriation after set-asides, will have their allocation adjusted upwards to 0.011547 percent of the FY appropriation after set-asides, or to a lesser percentage which can be achieved for all eligible tribes with available carryover funds set-aside for this purpose.

    MINGRANT = APPROP * 0.0001547. Where: APPROP = current FY appropriation for the IHBG program less amounts in the Appropriations Act mandated for purposes other than the formula allocation.

    If (GRANT2 + UDFFADJ) < MINGRANT and income-based need has been identified in a tribe's IHP, then tribe qualifies for MINGRANTADJ. For Tribes that qualify, calculate:

    MINGRTADJTEST = MINGRANT—(GRANT2 + UDFFADJ). If the Sum for all tribes of MINGRTADJTEST < MGHOLD, then: MINGRANTADJ = MINGRTADJTEST.

    If the Sum for all tribes of MINGRANTADJTEST > MGHOLD, then:

    MINGRANTADJ = MINGRANTADJTEST * (MGHOLD/S MINGRANTADJ) Where: GRANT2 is the approximate grant allocation in any given year for any given tribe. UDFFADJ = amount of UDFF adjustment. MINGRANT = Minimum total allocation established in § 1000.329. MINGRANTADJTEST = amount required to bring all qualifying tribes' allocations up to the minimum total allocation amount. This amount can then be compared. MGHOLD = amount set-aside for allocation under minimum total grant provision (see Step 2). MINGRANTADJ = actual amount of the minimum grant adjustment that can be accommodated with the amount set aside from carryover for this purpose.

    12. A tribe's final allocation consists of the initial current FY formula allocation with three adjustments.

    FINALALLOCATION = GRANT2 + ADJUST1 + UDFFadj + MINGRANTADJ Where: FINALALLOCATION = total amount a tribe is eligible to receive as a grant in the current FY. GRANT2 = preliminary total allocation after applying 1996 Operating Subsidy and Modernization minimum funding (see Step 8) but before applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant provision (see Step 10). ADJUST1 = adjustments for over- or under-funding occurring in prior FYs. UDFFadj = amount of the Undisbursed Fund Factor adjustments. Negative amount represents excess undisbursed funds. Positive represents amounts being transferred to other tribes without excess undisbursed funds. MINGRANTADJ = actual amount of the minimum grant adjustment that can be accommodated with the amount set aside from carryover for this purpose.
    Dated: November 4, 2016. Lourdes Castro Ramirez, Principal Deputy Assistant, Secretary for Public and Indian Housing. Nani A. Coloretti, Deputy Secretary.
    [FR Doc. 2016-27208 Filed 11-21-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF DEFENSE Department of the Air Force 32 CFR Part 842 [Docket ID: USAF-2015-0003] RIN 0701-AA79 Administrative Claims AGENCY:

    Department of the Air Force, DoD.

    ACTION:

    Final rule.

    SUMMARY:

    This rule contains amendments for policy changes and clarification and deletions for the Air Force guidance on Administrative claims and Personnel and Carrier Recovery Claims. The rule relates to the Air Force processes for claims filed for and against the Air Force as well as Air Force processes for filing personnel and carrier recovery claims.

    DATES:

    This rule is effective on December 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Daniel Lemieux (AFLOA/JACC), 1500 West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612-4646, [email protected]

    SUPPLEMENTARY INFORMATION:

    On March 30, 2016 (81 FR 17621-17635), the Department of the Air Force published a proposed rule titled “Administrative Claims” for a 60-day public comment period. At the end of the public comment period, no public comments were received. As a result, no changes were made to the regulatory text.

    Executive Summary I. Purpose of This Regulatory Action

    The purpose of this rule is to provide the public with information necessary to file a claim against the United States Air Force for money damages and to notify the public of the procedures used to collect money from the public for damages to property under the control of the United States Air Force. Additionally, it is to provide the public with information about changes and deletions concerning the settlement and payment of claims under the Military Personnel and Civilian Employee's Claims Act for incident to service loss and damage to personal property.

    II. Summary of the Major Provisions of This Regulatory Action

    This part describes the process and procedures by which claims against the Air Force will be addressed, including who are proper claimants, how, where and when to file a claim, what claims are payable, how the Air Force will adjudicate claims and how to appeal unfavorable decisions. It also describes the process the Air Force will use for asserting claims against persons who damage Air Force property.

    Changes: This part has been substantially revised since last codified and should be reviewed in its entirety to determine the changes made.

    Deletions: This part has been substantially revised since last codified and should be reviewed in its entirety to determine the deletions made.

    III. Costs and Benefits

    The regulations contained herein require the public who wish to file a claim against the Air Force to substantiate their loss, which may result in minor or incidental costs to the claimant. Revised regulations pertaining to how the Air Force asserts claims for damage to Air Force property may result in increased costs to those who cause said damage. The benefits of these regulations include increased safeguards to ensure public funds are not expended for fraudulent claims and to ensure the U.S. government receives adequate compensation for damages to its property wrongfully caused by others.

    Retrospective Review

    This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review,” DoD's full plan and updates can be accessed at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

    Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

    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. The Department of Air Force has assessed this rule and determined this rule to be a “non-significant regulatory action.”

    Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

    Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

    It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

    Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

    This rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

    Executive Order 13132, “Federalism”

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State and local governments.

    List of Subjects in 32 CFR Part 842

    Administrative claims.

    Accordingly, 32 CFR part 842 is amended as follows:

    PART 842—[AMENDED] 1. The authority citation for 32 CFR part 842 continues to read as follows: Authority:

    Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013, except as otherwise noted; 28 CFR 14.11, except as otherwise noted.

    2. The Note for part 842 is revised to read as follows: Note:

    Air Force Regulations are available on the e-Publishing Web site at http://www.e-publishing.af.mil/ for downloading. This part is derived from Air Force Instruction 51-501, Tort Claims, and Air Force Instruction 51-502, Personnel and Carrier Recovery Claims.

    3. Amend part 842 by revising all references to “HQ USAF/JACC” to read “AFLOA/JACC.” 4. Revise § 842.0 to read as follows:
    § 842.0 Scope.

    This part establishes standard policies and procedures for all administrative claims resulting from Air Force activities and for which the Air Force has assigned responsibility.

    5. Amend § 842.2 by: a. Revising paragraph (f). b. Removing paragraph (g). c. Redesignating paragraphs (h) through (o) as (g) through (n). d. Revising newly redesignated paragraph (g).

    The revisions read as follows:

    § 842.2 Definitions.

    (f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.

    (g) Owner. A holder of a legal title or an equitable interest in certain property. Specific examples include:

    (1) For real property. The mortgagor, and the mortgagee if that individual can maintain a cause of action in the local courts involving a tort to that specific property.

    (2) For personal property. A bailee, lessee, mortgagee and a conditional vendee. A mortgagor, conditional vendor, title loan company or someone else other than the owner, who has the title for purposes of security are not owners.

    6. Revise § 842.4 to read as follows:
    § 842.4 Where to file a claim.

    File a claim at the base legal office of the unit or installation at or nearest to where the accident or incident occurred. If the accident or incident occurred in a foreign country where no Air Force unit is located, file the claim with the Defense Attache (DATT) or Military Assistance Advisory Group (MAAG) personnel authorized to receive claims (DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is unable to obtain adequate assistance in filing a claim, the claimant may contact the nearest Air Force SJA. The SJA then advises AFLOA/JACC through claims channels of action taken and states why the DATT or MAAG was unable to adequately assist the claimant.

    § 842.9 [Removed]
    7. Remove § 842.9. Subpart B—[Removed] 8. Remove subpart B, consisting of §§ 842.10 through 842.14. Subpart C—[Redesignated as Subpart B] 9. Redesignate subpart C, consisting of §§ 842.15 through 842.20, as subpart B, consisting of §§ 842.9 through 842.14, respectively. 10. Amend newly redesignated § 842.10 by revising paragraphs (a), (b), and (d) to read as follows:
    § 842.10 Definitions.

    (a) Appointing commander. The commander exercising special court-martial jurisdiction over the offender.

    (b) Board of officers. One to three commissioned officers appointed to investigate a complaint of willful property damage or wrongful taking by Air Force personnel.

    (d) Willful damage. Damage or destruction caused intentionally, knowingly, and purposely, without justifiable excuse.

    11. Amend newly redesignated § 842.12 by adding paragraphs (g) through (i) to read as follows:
    § 842.12 Claims not payable.

    (g) Claims involving wrongful taking stemming from larceny, forgery or deceit, which are not accompanied by riotous or violent action.

    (h) Claims against Air National Guard members unless they are performing duty under Title 10 U.S.C.

    (i) Claims for indirect, consequential or remote damages.

    12. Revise newly redesignated § 842.13 to read as follows:
    § 842.13 Limiting provisions.

    (a) A complaint must be submitted within 90 days of the date of the incident. The appointing commander may find good cause for the delay and accept a late claim. The appointing commander's determination of good cause is final and not reviewable.

    (b) Assessment of damages in excess of $5,000 against an offender's pay for a single incident requires AFLOA/JACC approval.

    13. Revise newly redesignated § 842.14 to read as follows:
    § 842.14 Filing a claim.

    Claimant complains (orally or in writing) to the commander of a military organization or unit of the alleged offending member or members or to the commander of the nearest military installation. If the claim is made orally, the individual must assist the commander to reduce the complaint to writing within a reasonable time. The complainant need not request a sum certain in writing at the time the complaint is filed, but they must present such value and evidence before settlement is made.

    Subpart D—[Redesignated as Subpart C] 14. Redesignate subpart D, consisting of §§ 842.21 through 842.35, as subpart C, consisting of §§ 842.15 through 842.29.
    § 842.16 [Amended]
    15. Amend newly redesignated § 842.16 by: a. Removing paragraphs (a), (c), (e), and (g). b. Redesignating paragraphs (b), (d), (f), and (h) as paragraphs (a), (b), (c), and (d). 16. Revise newly designated § 842.17 to read as follows:
    § 842.17 Delegations of authority.

    (a) Settlement authority. The Secretary of the Air Force has delegated the authority to assign areas of responsibility and designate functional responsibility for claims under the Military Personnel and Civilian Employees' Claims Act to The Judge Advocate General (TJAG).

    (b) Reconsideration authority. A settlement authority has the same authority specified in paragraph (a) of this section. However, with the exception of TJAG, a settlement authority may not deny a claim on reconsideration that it, or its delegate, had previously denied.

    (c) Authority to reduce, withdraw and restore delegated settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority.

    17. Amend newly designated § 842.18 by revising paragraph (a) to read as follows:
    § 842.18 Filing a claim.

    (a) How and when to file a claim. A claim is filed when a federal military agency receives from a claimant or duly authorized agent a properly completed AF Form 180, DD Form 1842 or other written and signed demand for a determinable sum of money.

    (1) A claim is also filed when a federal military agency receives from a claimant or duly authorized agent an electronic submission, through a Department of Defense claims Web site, indicating that the claimant intends for the appropriate military branch to consider a digitally signed demand for a determinable sum of money.

    (2) A claim is also filed when the Air Force receives from a claimant or duly authorized agent an electronic submission, through the Air Force claims Web site, a digitally signed demand for a determinable sum of money.

    18. Revise newly designated § 842.19 introductory text to read as follows:
    § 842.19 Partial payments.

    Upon request of a claimant, a settlement authority may make a partial payment in advance of final settlement when a claimant experiences personal hardship due to extensive property damage or loss. Partial payments are made if a claim for only part of the loss is submitted and is readily provable, up to the amount of the settlement authority. (The claimant may later amend the claim for the remainder of the loss.) If the total payable amount of the claim exceeds the payment limits of the settlement authority, send it with recommendations to the proper settlement authority.

    19. Revise newly designated § 842.21 to read as follows:
    § 842.21 Who may file a claim.

    A claim may be filed by:

    (a) A proper claimant.

    (b) An authorized agent or legal representative of a proper claimant.

    (c) A survivor of a deceased proper claimant in this order:

    (1) Spouse.

    (2) Children.

    (3) Father or mother.

    (4) Brothers or sisters.

    20. Amend newly designated § 842.24 by revising paragraph (d) to read as follows:
    § 842.24 General provisions.

    (d) Property that is owned by the claimants, or their immediate families, or borrowed for their use, or in which the claimants or their immediate families has an enforceable ownership interest.

    21. Amend newly designated § 842.25 by revising the introductory text and paragraphs (a) and (b) to read as follows:
    § 842.25 Claims payable.

    Claims may be payable for loss of or damage to tangible personal property when the damage occurs incident to service. For loss of or damage to property to be incident to service, it must occur at a place and time that is connected to the service of an active duty military member or employment of a civilian employee.

    (a) Authorized location. Claims are only payable when the claimed property is located in an authorized location. There must be some connection between the claimant's service and the location of the claimed property. Duty locations where personal property is used, stored or held because of official duties are authorized places. Other authorized places may include:

    (1) Any location on a military installation not otherwise excluded.

    (2) Any office, building, recreation area, or real estate the Air Force or any other DoD element uses or controls.

    (3) Any place a military member is required or ordered to be pursuant to their duties and while performing those duties.

    (4) Assigned Government housing or quarters in the United States or provided in kind. The Military Personnel and Civilian Employees' Claims Act specifically prohibits payment for loss of or damage to property in quarters within the US unless the housing or quarters are assigned or otherwise provided in kind. Base housing that has not been privatized is generally considered assigned or provided in kind wherever it is located.

    (i) Privatized housing or quarters within the United States subject to the Military Housing Privatization Initiative located within the fence line of a military installation or on federal land in which the DoD has an interest is considered assigned or otherwise provided in kind for the purposes of the Military Personnel and Civilian Employees' Claims Act.

    (ii) [Reserved]

    (5) Housing or quarters outside the United States. Outside the US, authorized off-base quarters, as well as assigned quarters, including quarters in US territories and possessions, are authorized places. The residence of a civilian employee is not an authorized location if the employee is a local inhabitant.

    (6) Temporary duty (TDY) quarters and locations en route to the TDY destination. Significant deviations from the direct travel route are not authorized locations.

    (7) Permanent change of station (PCS) temporary quarters and locations enroute to the PCS destination. Significant deviations from the direct travel route are not authorized locations.

    (8) Entitlement and benefit locations. For these locations to be authorized, the claimant must be using them for the intended purpose and the property must be reasonably linked to that purpose.

    (9) Locations where personal property shipped or stored at government expense are found. Government facilities where property is stored at the claimant's expense or for their convenience without an entitlement are not authorized places.

    (b) Payable causes of loss incident to service. Because the Personnel Claims Act (PCA) is not a substitute for private insurance, loss or damage at quarters or other authorized locations may only be paid if caused by:

    (1) An unusual occurrence;

    (2) Theft, vandalism or other malfeasance;

    (3) Hostile action;

    (4) A carrier, contractor, warehouseman or other transportation service provider storing or moving goods or privately owned vehicles at government expense;

    (5) An agent of the US; or

    (6) A permanent seizure of a witness' property by the Air Force.

    22. Amend newly designated § 842.26 by: a. Revising paragraphs (d), (j), (m), (n), (u), (y), and (z). b. Remove paragraphs (aa), (bb), (cc), and (dd).

    The revisions read as follows:

    § 842.26 Claims not payable.

    (d) The loss is recovered or recoverable from an insurer or other source unless the settlement authority determines there is good cause for not claiming against the insurer.

    (j) It is an appraisal fee, unless the settlement authority requires one to adjudicate the claim.

    (m) It is an item acquired, possessed, shipped, or stored in violation of any US Armed Force directive or regulation.

    (n) It is an item fraudulently claimed.

    (u) It is an inconvenience expense.

    (y) It is damage to, or loss of a rental vehicle which TDY or PCS orders authorized.

    (z) It is a cost to relocate a telephone or mobile or manufactured home due to a government ordered quarters move.

    Subpart E—[Removed] 23. Remove subpart E. Subpart F—[Redesignated as Subpart D] 24. Redesignate subpart F, consisting of §§ 842.40 through 842.54, as subpart D consisting of §§ 842.30 through 842.44. 25. Revise newly redesignated § 842.30 to read as follows:
    § 842.30 Scope of this subpart.

    This subpart establishes policies and procedures for all administrative claims under the Military Claims Act for which the Air Force has assigned responsibility.

    26. Amend newly redesignated § 842.31 by revising paragraph (b) to read as follows:
    § 842.31 Definitions.

    (b) Final denial. A letter mailed from the settlement authority to the claimant or authorized agent advising the claimant that the Air Force denies the claim. Final denial letters mailed from within the United States shall be sent by US Mail, certified mail, return receipt requested.

    27. Amend newly redesignated § 842.32 by: a. Revising paragraphs (a)(1) introductory text, (a)(3) introductory text, (a)(3)(ii) and (iii), (a)(4) and (5), (b), and (f) introductory text. b. Removing paragraph (f)(8) and redesignating paragraphs (f)(9) through (11) as paragraphs (f)(8) through (10).

    The revisions read as follows:

    § 842.32 Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has authority to:

    (3) The following individuals have delegated authority to settle claims for $25,000 or less and to deny claims in any amount:

    (ii) The Director, Civil Law and Litigation.

    (iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort Litigation Division.

    (4) SJAs of the Air Force component commander of the US geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or deny claims filed for $25,000 or less.

    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, or deny claims filed for $15,000 or less.

    (b) Redelegation of authority. The Chief, Claims and Tort Litigation Division may redelegate his or her authority to Staff Judge Advocates. A settlement authority may redelegate his or her authority for claims not exceeding $25,000, to a subordinate judge advocate or civilian attorney in writing. The Chief, AFLOA/JACC may redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/JACC and, upon request, may authorize installation Staff Judge Advocates to redelegate their settlement authority to paralegals under their supervision.

    (f) Special exceptions. Do not settle or deny claims for the following reasons without AFLOA/JACC approval:

    28. Amend newly redesignated § 842.33 by revising paragraph (a) to read as follows:
    § 842.33 Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a Standard Form 95 or other written document. It must be signed by the Claimant or authorized agent, be for money damages in a sum certain, and lay out a basic statement as to the nature of the claim that will allow the Air Force to investigate the allegations contained therein.

    29. Revise newly redesignated § 842.34 to read as follows:
    § 842.34 Advance payments.

    Subpart P of this part sets forth procedures for advance payments.

    30. Amend newly redesignated § 842.35 by revising paragraphs (a) and (c) to read as follows:
    § 842.35 Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal Tort Claims Act should be applied with respect to the Military Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.

    (c) A claim filed after the statute of limitations has run is considered if the US is at war or in an armed conflict when the claim accrues or if the US enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.

    31. Revise newly redesignated § 842.37 to read as follows:
    § 842.37 Who are proper claimants.

    (a) Citizens and inhabitants of the United States. US inhabitants includes dependents of the US military personnel and federal civilian employees temporarily outside the US for purposes of US Government service.

    (b) US military personnel and civilian employees. Note: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.

    (c) Foreign military personnel when the damage or injury occurs in the US. Do not pay for claims under the Military Claims Act (MCA) for personal injury or death of a foreign military personnel that occurred incident to their service.

    (d) States, state agencies, counties, or municipalities, or their political subdivisions.

    (e) Subrogees of proper claimants to the extent they have paid for the claim in question.

    32. Revise newly redesignated § 842.38 to read as follows:
    § 842.38 Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.

    (b) Agencies and nonappropriated fund instrumentalities (NAFIs) of the US Government.

    (c) Subrogees of § 842.42(a) and (b).

    (d) Inhabitants of foreign countries.

    33. Amend newly redesignated § 842.39 by: a. Revising paragraph (a). b. Removing paragraphs (c), (d), and (f). c. Redesignating paragraph (e) as paragraph (c).

    The revision reads as follows:

    § 842.39 Claims payable.

    (a) Claims arising from negligent or wrongful acts or omissions committed by United States military or civilian personnel while acting in the scope of their employment, subject to the exceptions listed in this subpart.

    34. Revise newly redesignated § 842.40 to read as follows:
    § 842.40 Claims not payable.

    (a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.

    (1) MCA claims arising from noncombat activities in the US are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the MCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (i.e., duty, breach, causation, and damages); that is, they are fault based. Noncombat activity claims under the MCA are based solely on causation and damages. Because MCA claims for noncombat activities are not fault based, they are not covered by the FTCA.

    (2) Claims for incident-to-service damage to vehicles caused by the negligence of a member or employee of the armed forces acting in the scope of employment are paid under the MCA, instead of the Military Personnel and Civilian Employees' Claims Act.

    (b) Arises with respect to the assessment or collection of any customs duty, or the detention of any goods or merchandise by any US officer of customs or excise, or any other US law enforcement officer. Note: This includes loss or damage to property detained by members of the Security Forces or Office of Special Investigation (OSI).

    (c) Is cognizable under US admiralty and maritime law, to include:

    (1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.

    (2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.

    (3) The Public Vessels Act, 46 U.S.C. 31101 and following.

    (4) Exception: Claims arising from noncombat activities may be paid under the MCA, even if they are also cognizable under paragraphs (c)(1) through (3) of this section.

    (d) Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process. Exception: Unless such actions were committed by an investigative or law enforcement officer of the US who is empowered by law to conduct searches, seize evidence, or make arrests for violations of federal law.

    (e) Arises out of libel, slander, misrepresentation, or deceit.

    (f) Arises out of an interference with contract rights.

    (g) Arises out of the combat activities of US military forces.

    (h) Is for the personal injury or death of a member of the Armed Forces of the US incident to the member's service.

    (i) Is for the personal injury or death of any person for workplace injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 8101, and following.

    (j) Is for the personal injury or death of any employee of the US, including nonappropriated fund employees, for workplace injuries covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901, and following.

    (k) Is for a taking of property, e.g., by technical trespass or over flight of aircraft.

    (l) Is for patent or copyright infringement.

    (m) Results wholly from the negligent or wrongful act of the claimant.

    (n) Is for the reimbursement of medical, hospital, or burial expenses furnished at the expense of the US, either directly or through contractual payments.

    (o) Arises from contractual transactions, express or implied (including rental agreements, sales agreements, leases, and easements), that:

    (1) Are payable or enforceable under oral or written contracts; or

    (2) Arise out of an irregular procurement or implied contract.

    (p) Is for the personal injury or death of military or civilian personnel of a foreign government incident to their service.

    (q) Is based on an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Claims under the noncombat activities provision of this subpart may be paid even if this paragraph (q) applies. Is based on the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or a Federal Government employee, whether or not the discretion involved is abused. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Exception: Claims under the noncombat activities provision may be paid even if this paragraph (q) applies.

    (r) Is not in the best interests of the US, is contrary to public policy, or is otherwise contrary to the basic intent of the MCA. Examples include, but are not limited to, when a claimant's criminal conduct or failure to comply with a nonpunitive regulation is a proximate cause of the loss. Prior approval must be obtained from USAF/JACC before denying claims solely on this exception.

    (s) Arises out of an act or omission of any employee of the government in administering the provisions of the Trading With the Enemy Act, 50 U.S.C. app. 1-44.

    (t) Is for damages caused by the imposition or establishment of a quarantine by the US.

    (u) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system.

    (v) Arises from the activities of the Tennessee Valley Authority.

    (w) Arises from the activities of a federal land bank, a federal intermediate credit bank, or a bank for cooperatives.

    (x) Is for the personal injury or death of any government contractor employee for whom benefits are available under any worker's compensation law, or under any contract or agreement providing employee benefits through insurance, local law, or custom when the US pays insurance either directly or as part of the consideration under the contract. Only USAF/JACC may act on these claims.

    (y) Is for damage, injury or death from or by flood or flood waters at any place.

    (z) Is for damage to property or other losses of a state, commonwealth, territory, or the District of Columbia caused by Air National Guard personnel engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained by that state, commonwealth, territory, or the District of Columbia.

    (aa) Is for damage to property or for any death or personal injury arising out of activities of any federal agency or employee of the government in carrying out the provisions of the Disaster Relief Act of 1974 (42 U.S.C. 5121, et seq.), as amended.

    (bb) Arises from activities that present a political question.

    (cc) Arises from private, as distinguished from government, transactions.

    (dd) Is based solely on compassionate grounds.

    (ee) Is for rent, damage, or other expenses or payments involving the regular acquisition, use, possession, or disposition of real property or interests therein by and for the US.

    (ff) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the US., or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is, and at the time of the incident was, friendly to the US. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the US otherwise payable. Forward claims considered not payable under this paragraph (ff), with recommendations for disposition, to USAF/JACC.

    (gg) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter by the US Postal Service or its agents or employees.

    (hh) Is for damage to or loss of bailed property when the bailor specifically assumes such risk.

    (ii) Is for property damage, personal injury, or death occurring in a foreign country to an inhabitant of a foreign country.

    (jj) Is for interest incurred prior to the payment of a claim.

    (kk) Arises out of matters which are in litigation against the US.

    (ll) Is for attorney fees or costs in connection with pursuing an administrative or judicial remedy against the US or any of its agencies.

    (mm) Is for bail, interest or inconvenience expenses incurred in connection with the preparation and presentation of the claim.

    (nn) Is for a failure to use a duty of care to keep premises owned or under the control of the US safe for use for any recreational purpose, or for a failure by the US to give any warning of hazardous conditions on such premises to persons entering for a recreational purpose unless there is a willful or malicious failure to guard or warn against a dangerous condition, or unless consideration was paid to the US (including a nonappropriated fund instrumentality) to use the premises.

    35. Revise newly redesignated § 842.41 to read as follows:
    § 842.41 Applicable law.

    This section provides the existing law governing liability, measurement of liability and the effects of settlement upon awards.

    (a) Federal preemption. Many of the exclusions in this subpart are based upon the wording of 28 U.S.C. 2680 or other federal statutes or court decisions interpreting the Federal Tort Claims Act. Federal case law interpreting the same exclusions under the Federal Tort Claims Act is applied to the Military Claims Act. Where state law differs with federal law, federal law prevails.

    (b) Extent of liability. Where the claim arises is important in determining the extent of liability.

    (1) Applicable law. When a claim arises in the United States, its territories or possessions, the same law as if the claim was cognizable under the FTCA will be applied.

    (2) Claims in foreign countries. In claims arising in a foreign country, where the claim is for personal injury, death, or damage to or loss of real or personal property caused by an act or omission alleged to be negligent, wrongful, or otherwise involving fault of military personnel or civilian officers or employees of the United States acting within the scope of their employment, liability or the United States is determined according to federal case law interpreting the FTCA. Where the FTCA requires application of the law of the place where the act or omission occurred, settlement authorities will use the rules set forth in the currently adopted edition of the Restatement of the Law, published by the American Law Institute, to evaluate the liability of the Air Force, subject to the following rules:

    (i) Foreign rules and regulations governing the operation of motor vehicles (rules of the road) are applied to the extent those rules are not specifically superseded or preempted by United States military traffic regulations.

    (ii) Absolute or strict liability will not apply for claims not arising from noncombat activities.

    (iii) Hedonic damages are not payable.

    (iv) The collateral source doctrine does not apply.

    (v) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.

    (vi) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.

    (c) Claims not payable. Do not approve payment for:

    (i) Punitive damages.

    (ii) Cost of medical or hospital services furnished at the expense of the United States.

    (iii) Cost of burial expenses paid by the United States.

    (d) Settlement by insurer or joint tortfeasor. When settlement is made by an insurer or joint tortfeasor and an additional award is warranted, an award may be made if both of the following are present:

    (1) The United States is not protected by the release executed by the claimant.

    (2) The total amount received from such source is first deducted.

    36. Amend newly redesignated § 842.42, by revising paragraphs (a) and (c) to read as follows:
    § 842.42 Appeal of final denials.

    (a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day time limit for good cause.

    (c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. Any higher settlement authority may act upon an appeal.

    Subpart G—[Redesignated as Subpart E] 37. Redesignate subpart G, consisting of §§ 842.55 through 842.68, as subpart E, consisting of §§ 842.45 through 842.58, respectively. 38. Revise newly redesignated § 842.47 to read as follows:
    § 842.47 Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has the authority to:

    (i) Settle claims for payment of $100,000 or less.

    (ii) Settle claims for more than $100,000, pay the first $100,000, and report the excess to the Department of the Treasury for payment.

    (iii) Deny claims in any amount.

    (2) The Judge Advocate General, Deputy Judge Advocate General, Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff are FCCs and have delegated authority to:

    (i) Settle claims for payment of $100,000 or less.

    (ii) Deny claims in any amount.

    (3) The SJAs of the Air Force component commander of the US geographic combatant commands are FCC for claims arising in their respective combatant command Areas of Responsibility (AORs) and may deny claims of $50,000 or less and will pay claims filed in any amount when payment is for $50,000 or less.

    (b) Redelegating settlement authority. A settlement authority appointed as a FCC in paragraph (a) of this section may appoint one or more subordinate judge advocates or civilian attorneys to act as FCC, and redelegate all or part of that settlement authority to such persons.

    (c) Settlement negotiations. A settlement authority may settle a claim in any sum within its settlement authority, regardless of the amount claimed. Send uncompromised claims in excess of the delegated authority through claims channels to the level with settlement authority. Unsuccessful negotiations at one level do not bind higher authority.

    (d) Special exceptions. Do not settle claims for medical malpractice without HQ USAF/JACC approval.

    39. Amend newly redesignated § 842.48 by revising paragraph (a) to read as follows:
    § 842.48 Filing a claim.

    (a) How and when filed. A claim is filed when the Air Force receives from a claimant or authorized agent a properly completed SF 95 or other signed and written demand for money damages in a sum certain. A claim may be presented orally only if oral claims are the custom in the country where the incident occurred and the claimant is functionally illiterate. In any case where an oral claim is made, claims personnel must promptly reduce the claim to writing with all particulars carefully noted. A claim belonging to another agency is promptly transferred to the appropriate agency.

    40. Revise newly redesignated § 842.49 to read as follows:
    § 842.49 Advance payments.

    Subpart P of this part outlines procedures for advance payments.

    41. Amend newly redesignated § 842.50 by revising paragraph (a) to read as follows:
    § 842.50 Statute of limitations.

    (a) A claim must be presented to the Air Force within 2 years after it accrues. It accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss or injury.

    42. Amend newly redesignated § 842.52 by revising paragraphs (a) and (b) to read as follows:
    § 842.52 Who are proper claimants.

    (a) Foreign nationals. In a wrongful death case, if the decedent is an inhabitant of a foreign country, even though his or her survivors are US inhabitants, the FCA will apply.

    (b) US nationals residing abroad, unless the claim arises from a benefit, privilege or service provided to them by the US Government, or they reside in the foreign country primarily because they are employed directly by the United States, or sponsored by or accompanying such a person, or employed by a US civilian contractor in furtherance of a contract with the US Government, or sponsored by or accompanying such a person.

    43. Amend newly redesignated § 842.53 by revising paragraphs (b), (c), and (e) to read as follows:
    § 842.53 Who are not proper claimants.

    (b) Persons determined to be US inhabitants. US inhabitants include dependents of US military personnel and US Government civilian employees.

    (c) Foreign military personnel suffering personal injury, or death arising incident to service or pursuant to combined and/or joint military operations. Such operations include, but are not limited to, military exercises and United Nations, NATO, and other regional peacekeeping and humanitarian missions.

    (e) National governments and their political subdivisions engaging in war or armed conflict with the United States or its allies. This includes factions that have not necessarily been recognized by the international community as a legitimate nation state.

    44. Amend newly redesignated § 842.54 by: a. Revising paragraph (a). b. Removing paragraph (b). c. Redesignating paragraph (c) as paragraph (b).

    The revision reads as follows:

    § 842.54 Payment criteria.

    (a) The incident causing the damage or injury must arise in a foreign country and be caused by noncombatant activities of the US Armed Forces or by the negligent or wrongful acts of civilian employees or military members of the Armed Forces.

    (1) It is a prerequisite to US responsibility if the employee causing the damage or injury is a local inhabitant, a prisoner of war, or an interned enemy alien. These persons are “employees” within the meaning of the Foreign Claims Act (FCA) only when in the service of the United States. Ordinarily, a slight deviation as to time or place does not constitute a departure from the scope of employment. The purpose of the activity and whether it furthers the general interest of the United States is considered. If the claim arose from the operation or use of a US Armed Forces vehicle or other equipment by such a person, pay it provided local law imposes liability on the owner of the vehicle or other equipment in the circumstances involved.

    (2) It is immaterial when the claim arises from the acts or omissions of any US Armed Forces member or employee not listed in § 842.64(c)(1). The Act imposes responsibility on the United States when it places a US citizen or non-US citizen employee in a position to cause the injury or damage. If the cause is a criminal act clearly outside the scope of employment, ordinarily pay the claim and consider disciplinary action against the offender.

    45. Amend newly redesignated § 842.55 by: a. Revising paragraphs (a), (c), (f), (h), (m), (o), and (q). b. Adding paragraphs (s) and (t).

    The revisions and additions read as follows:

    § 842.55 Claims not payable.

    (a) Is waived under an applicable international agreement, or pursuant to an applicable international agreement, a receiving state should adjudicate and pay the claim. However, if a foreign government subject to such an international agreement disputes its legal responsibilities under the agreement, and the claimant has no other means of compensation, USAF/JACC may authorize payment.

    (c) Is for attorney fees, punitive damages, a judgment or interest on a judgment, bail, or court costs. FCC should consider providing early notice to claimants that attorney fees are not payable as an item of damage under the FCA.

    (f) Is a paternity claim.

    (h) Results wholly from the negligent or wrongful act of the claimant or agent.

    (m) Results from an action by an enemy, or directly or indirectly from an act of the US Armed Forces in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the US Armed Forces, including its airborne ordnance, indirectly related to combat, and occurring while preparing for or going to, or returning from a combat mission.

    (o) Arises out of personal activities of family members, guests, servants, or activities of the pets of members and employees of the US Armed Forces.

    (q) Is covered under US admiralty or maritime laws, unless authorized by The Judge Advocate General or Chief, Claims and Tort Litigation Staff.

    (s) Is not in the best interest of the United States, is contrary to public policy, or otherwise contrary to the basic intent of the FCA. Claims considered not payable on this basis will be forwarded to USAF/JACC for final decision.

    (t) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country unless the settlement authority determines the claimant is, and at the time of the incident was, friendly to the United States. Exception: A prisoner of war or interned enemy alien is not excluded from filing a claim for damage, loss, or destruction of personal property within the US Armed Forces' custody if the claim is otherwise payable.

    46. Revise newly redesignated § 842.56 to read as follows:
    § 842.56 Applicable law.

    This section provides guidance to determine the applicable law for assessment of liability.

    (a) In adjudicating FCA claims, settlement authorities will follow the law, customs, and standards of the country where the claim arose, except:

    (1) Causation is determined based upon general principles of US tort law found in federal case law and standard legal publications.

    (2) Joint and several liability does not apply. Payment is based solely on the portion of loss, damage, injury or death attributable to the US Armed Forces.

    (3) If lost income or lost profits is recoverable under the law where the claim arose, they shall be limited to net lost income or net lost profits, taking into account appropriate deductions for taxes, regular business expenditures, and in the case of wrongful death, personal consumption during the loss period.

    (b) Settlement authorities will not deduct compensation from collateral sources except for:

    (1) Direct payments by a member or civilian employee of the US Armed Forces for damages (not solatia).

    (2) Any payments recovered or recoverable from an insurance policy when premiums were paid, directly or indirectly, by the United States, or a member or civilian employee of the US Armed Forces; or when the member or employee has the benefit of the insurance (such as when a US member or employee borrows a vehicle of a local national, and the vehicle carries insurance for the benefit of any driver with permission to drive the vehicle).

    47. Revise newly redesignated § 842.57 to read as follows:
    § 842.57 Reconsideration of final denials.

    This section provides the procedures used to reconsider a final denial.

    (a) An FCC has the inherent authority to reconsider a final decision. The mere fact that a request for reconsideration is received does not obligate the settlement authority to reopen the claim.

    (b) The FCC does not mention a reconsideration right in the original denial letter.

    (c) A settlement authority must reconsider the final action when there is:

    (1) New and material evidence concerning the claim; or

    (2) Obvious errors in the original decision.

    (d) The FCC must document in the claim file the reason for reconsideration.

    (e) A FCC above the original settlement authority may direct a claim be forwarded to a higher FCC for reconsideration.

    48. Revise newly redesignated § 842.58 to read as follows:
    § 842.58 Right of subrogation, indemnity, and contribution.

    The Air Force has all the rights of subrogation, indemnity and contribution, as local law permits. However, settlement authorities will not seek contribution or indemnity from US military members or civilian employees whose conduct gave rise to US Government liability, or whenever it would be harmful to international relations.

    Subpart H—[Redesignated as Subpart F] 49. Redesignate subpart H, consisting of §§ 842.69 through 842.72, as subpart F, consisting of §§ 842.59 through 842.62, respectively. 50. Revise newly redesignated § 842.59 to read as follows:
    § 842.59 Scope of this subpart.

    This subpart governs Air Force actions in investigating, processing, and settling claims under the International Agreement Claims Act.

    51. Amend newly redesignated § 842.60 by revising paragraphs (a), (d), (e), (f), and (g) to read as follows:
    § 842.60 Definitions.

    (a) Civilian component. Civilian personnel accompanying and employed by an international agreement contracting force. Local employees, contractor employees, or members of the American Red Cross are not a part of the civilian component unless specifically included in the agreement.

    (d) Legally responsible. A term of art providing for settlement of claims under cost sharing international agreements in accordance with the law of the receiving state. Often, employees who are local inhabitants, not part of the civilian component of the force, could cause the sending state to be legally responsible under a respondeat superior theory.

    (e) Receiving state. The country where the force or civilian component of another contracting party is temporarily located. It is often thought of as the “host nation.”

    (f) Sending state. The country sending the force or civilian component to the receiving State. In cases where US personnel are stationed in a foreign country, the US is the sending state.

    (g) Third parties. A term of art used in International Agreements. Parties other than members of the force and civilian component of the sending or receiving States. Dependents, tourists, and other noninhabitants of a foreign country are third parties (and therefore can generally make a claim under a SOFA) unless the international agreement, or an understanding between the countries involved, specifically excludes them.

    52. Revise newly redesignated § 842.61 to read as follows:
    § 842.61 Delegations of authority.

    (a) Overseas settlement authority. Staff Judge Advocates of the Air Force component commands of the US geographic combatant commands will, within their combatant command AORs, fulfill US obligations concerning claims abroad subject to 10 U.S.C. 2734a for which the Air Force has settlement authority. Consistent with 10 U.S.C. 2734a and the international agreement, they may reimburse or pay the pro rata share of a claim as agreed, or if inconsistent with the IACA or the international agreement, they may object to a bill presented,

    (b) Settlement authority. The Secretary of the Air Force, The Judge Advocate General, the Deputy Judge Advocate General, The Director of Civil Law and Chief of the Claims and Tort Litigation Division may also exercise settlement authority under 10 U.S.C. 2734a.

    (c) Redelegation of authority. A settlement authority may redelegate his or her authority to a subordinate judge advocate or civilian attorney in writing.

    (d) Authority to reduce, withdraw, and restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority.

    53. Amend newly redesignated § 842.62 by revising paragraph (b) to read as follows:
    § 842.62 Filing a claim.

    (b) Claims arising in the United States. The claimant files tort claims arising from the act or omission of military or civilian personnel of another contracting party at any US military installation. The Staff Judge Advocate for the installation where such military or civilian personnel is assigned or attached will promptly notify the Foreign Claims Branch of USAF/JACC as well as the Commander, US Army Claims Service. If the claimant files said claim at an installation other than the location where said military or civilian personnel is assigned, the Staff Judge Advocate for that installation will promptly forward the claim to the appropriate installation Staff Judge Advocate.

    Subpart I—[Redesignated as Subpart G] 54. Redesignate subpart I, consisting of §§ 842.73 through 842.81 as subpart G, consisting of §§ 842.63 through 842.71, respectively. 55. Revise newly redesignated § 842.63 to read as follows:
    § 842.63 Scope of this subpart.

    This subpart explains how to settle and pay claims against the United States, for property damage, personal injury, or death incident to the use of a government vehicle or any other government property on a government installation which are not payable under any other statute.

    56. Amend newly redesignated § 842.65 by revising paragraph (a)(5) to read as follows:
    § 842.65 Delegations of authority.

    (a) * * *

    (5) SJA of the Air Force component commands of the US geographic combatant commands.

    57. Amend newly redesignated § 842.68 by: a. Removing the parentheses in the second sentence of paragraph (a). b. Revising paragraph (c).

    The revision reads as follows:

    § 842.68 Claims payable.

    (c) Arose from the use of a government vehicle at any place or from the use of other government property on a government installation.

    58. Amend newly redesignated § 842.69 by adding paragraph (e) to read as follows:
    § 842.69 Claims not payable.

    (e) For pain and suffering or other general damages.

    59. Revise newly redesignated § 842.71 to read as follows:
    § 842.71 Settlement agreement.

    Do not pay a claim unless the claimant accepts the amount offered in full satisfaction of the claim and signs a settlement agreement to that effect, in which the claimant agrees to release any and all claims against the United States, its employees and agents arising from the incident in question. Use the settlement agreement approved for use by the Department of Justice for the settlement of FTCA claims, tailored to this claim.

    Subpart J—[Redesignated as Subpart H] 60. Redesignate subpart J, consisting of §§ 842.82 through 842.85, as subpart H, consisting of §§ 842.72 through 842.75, respectively. 61. Amend newly redesignated § 842.74 by: a. Revising paragraph (a)(1)(i). b. Removing and reserving paragraph (a)(1)(ii) and removing paragraph (a)(1)(iii). c. Revising paragraph (b)(3)(iv).

    The revisions read as follows:

    § 842.74 Delegations of authority.

    (a) * * *

    (1) * * *

    (i) Settle or deny a claim in any amount. Settlements for payment of more than $500,000 are certified to Congress for payment.

    (b) * * *

    (3) * * *

    (iv) The Chief and Deputy Chief, Claims and Tort Litigation Division.

    62. In newly redesignated § 842.75, add paragraph (c) to read as follows:
    § 842.75 Reconsidering claims against the United States.

    (c) There is no time limit for submitting a request for reconsideration, but it is within the discretion of the settlement authority to decline to reconsider a claim based on the amount of time passed since the claim was originally denied.

    Subpart K—[Removed] 63. Remove subpart K, consisting of §§ 842.86 through 842.91. 64. Add new subpart I, consisting of §§ 842.76 through 842.79, to read as follows: Subpart I—Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 2402, 2671, 2672, 2674-2680) Sec. 842.76 Scope of this subpart. 842.77 Delegations of authority. 842.78 Settlement agreements. 842.79 Administrative claim; when presented. Subpart I—Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 2402, 2671, 2672, 2674-2680)
    § 842.76 Scope of this subpart.

    This subpart, promulgated under the authority of 28 CFR 14.11, governs claims against the United States for property damage, personal injury, or death, from the negligent or wrongful acts or omission of Air Force military or civilian personnel while acting within the scope of their employment.

    § 842.77 Delegations of authority.

    (a) Settlement authority. The following individuals are delegated the full authority of the Secretary of the Air Force to settle and deny claims:

    (1) The Judge Advocate General.

    (2) The Deputy Judge Advocate General.

    (3) The Director of Civil Law.

    (4) The Division Chief of Claims and Tort Litigation.

    (5) The Division Chief of Environmental Law and Litigation.

    (b) Redelegation of authority. A settlement authority may be redelegated, in writing, to a subordinate judge advocate or civilian attorney. The Chief, AFLOA/JACC may redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/JACC and, upon request, may authorize installation Staff Judge Advocates to redelegate their settlement authority to paralegals under their supervision.

    (c) Authority to reduce, withdraw, and restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority.

    (d) Settlement negotiations. A settlement authority may settle a claim filed in any amount for a sum within the delegated authority. Unsettled claims in excess of the delegated authority will be sent to the next highest level with settlement authority. Unsuccessful negotiations at one level do not bind higher authority.

    § 842.78 Settlement agreements.

    The claimant must sign a settlement agreement and general release before any payment is made.

    § 842.79 Administrative claim; when presented.

    When the Air Force is the proper agency to receive a claim pursuant to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b), 2672 and 2675, a claim shall be deemed to have been presented when it is received by:

    (a) The office of the Staff Judge Advocate of the Air Force installation nearest the location of the incident; or

    (b) The Claims and Tort Litigation Division, 1500 West Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.

    Subpart L—[Redesignated as Subpart J] 65. Redesignate subpart L, consisting of §§ 842.92 through 842.99, as subpart J, consisting of §§ 842.80 through 842.87, respectively. 66. Revise newly redesigated § 842.80 to read as follows:
    § 842.80 Scope of this subpart.

    This subpart describes how to assert, administer, and collect claims for damage to or loss or destruction of government property and lost wages of Air Force servicemembers through negligent or wrongful acts. It does not cover admiralty, hospital recovery, or nonappropriated fund claims.

    67. Amend newly redesignated § 842.81 by revising paragraph (a) to read as follows:
    § 842.81 Delegations of authority.

    (a) Settlement authority. (1) The following individuals have delegated authority to settle, compromise, suspend, or terminate action on claims asserted for $100,000 or less and to accept full payment on any claim:

    (i) The Judge Advocate General.

    (ii) The Deputy Judge Advocate General.

    (iii) The Director of Civil Law.

    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.

    (2) Installation staff judge advocates have authority to assert claims in any amount, accept full payment on any claim and to compromise, suspend or terminate action on claims asserted for $25,000 or less.

    68. Amend newly redesignated § 842.82 by revising paragraphs (a)(2), (c), and (e) to read as follows:
    § 842.82 Assertable claims.

    (a) * * *

    (2) Less than $100 but collection is practicable and economical.

    (c) The claim is for property damage arising from the same incident as a hospital recovery claim.

    (e) The claim is assertable as a counterclaim under an international agreement. (The claim should be processed under subpart G of this part).

    69. Amend newly redesignated § 842.83 by revising paragraph (b)(2) and adding paragraph (f) to read as follows:
    § 842.83 Non-assertable claims.

    (b) * * *

    (2) Caused by a person who has accountability and responsibility for the damaged property under the Report of Survey system.

    (f) Loss or damage caused by an employee of another federal agency while the employee was acting in the scope of his employment.

    70. Revise newly redesignated § 842.85 to read as follows:
    § 842.85 Referring a claim to the US Attorney or the Department of Justice.

    If collection efforts are unsuccessful, AFLOA/JACC may refer a claim to the appropriate US Attorney's Office or the Department of Justice for initiation of a lawsuit.

    Subpart M—[Redesignated as Subpart K] 71. Redesignate subpart M, consisting of §§ 842.100 through 842.114, as subpart K, consisting of §§ 842.88 through 842.102, respectively. 72. Revise newly redesignated § 842.88 to read as follows:
    § 842.88 Scope of this subpart.

    This subpart establishes policies and procedures for all administrative claims under the National Guard Claims Act for which the Air Force has assigned responsibility. Unless otherwise outlined in this subpart, follow procedures as outlined in subpart E of this part for claims arising out of noncombat activities.

    73. Revise newly redesignated § 842.89 to read as follows:
    § 842.89 Definitions.

    (a) Air National Guard (ANG). The federally recognized Air National Guard of each state, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam.

    (b) ANG member. An ANG member is one who is performing duty under 32 U.S.C., section 316, 502, 503, 504, or 505 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.

    (c) ANG duty status—(1) Active federal service. ANG members may serve on active Federal duty under 10 U.S.C. to augment the active Air Force under certain circumstances or for certain types of duty or training (e.g., overseas training exercises and ANG alert duty). Duty under 10 U.S.C. does not fall under this subpart.

    (2) Federally funded duty. ANG members perform specified federally funded duty or training under 32 U.S.C. such as weekend drills, annual training, field exercises, range firing, military schooling, full time unit support, or recruiting duties. Duty under 32 U.S.C. falls under this subpart for noncombat activities.

    (3) State duty. State duty is duty not authorized by federal law but required by the governor of the state and paid for from state funds. Such duty includes civil emergencies (natural or other disasters), civil disturbances (riots and strikes), and transportation requirements for official state functions, public health, or safety. State duty does not fall under this subpart.

    (d) ANG technicians. An ANG technician is a Federal employee employed under 32 U.S.C. 709. Tort claims arising out of his or her activity are settled under the Federal Tort Claims Act (FTCA).

    74. Amend newly redesignated § 842.90 by: a. Removing the introductory text. b. Revising paragraphs (a)(4) and (5) and (b). c. Removing paragraph (f)(1) and redesignating paragraphs (f)(2) and (3) as (f)(1) and (2), respectively.

    The revisions read as follows:

    § 842.90 Delegations of authority.

    (a) * * *

    (4) The SJAs of the Air Force component commander of the US geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or to deny claims filed for $25,000 or less.

    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, and deny claims filed, for $15,000 or less.

    (b) Redelegation of authority. A settlement authority may redelegate up to $25,000 of settlement authority to a subordinate judge advocate or civilian attorney. This redelegation must be in writing and can be for all claims or limited to a single claim. The Chief, AFLOA/JACC may redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/JACC and, upon request, may authorize installation Staff Judge Advocates to redelegate their settlement authority to paralegals under their supervision.

    75. Revise newly redesignated § 842.91 to read as follows:
    § 842.91 Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a Standard Form 95 or other written document. It must be signed by the Claimant or authorized agent, be for money damages in a sum certain, and lay out a basic statement as to the nature of the claim that will allow the Air Force to investigate the allegations contained therein.

    (b) Amending a claim. A claimant may amend a claim at any time prior to final action. To amend a claim the claimant or his or her authorized agent must submit a written, signed demand.

    76. Revise newly redesignated § 842.92 to read as follows:
    § 842.92 Advance payments.

    Subpart P of this part sets forth procedures for such payments.

    77. Revise newly redesignated § 842.93 to read as follows:
    § 842.93 Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal Tort Claims Act should be applied with respect to the National Guard Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.

    (b) The statutory time period excludes the day of the incident and includes the day the claim was filed.

    (c) A claim filed after the statute of limitations has run is considered if the US is at war or in an armed conflict when the claim accrues or if the US enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.

    78. Revise newly redesignated § 842.94 to read as follows:
    § 842.94 Who may file a claim.

    The following individuals may file a claim under this subpart.

    (a) Owners of the property or their authorized agents may file claims for property damage.

    (b) Injured persons or their duly authorized agents may file claims for personal injury.

    (c) Duly appointed guardians of minor children or any other persons legally entitled to do so under applicable local law may file claims for minors' personal injuries.

    (d) Executors or administrators of a decedent's estate or another person legally entitled to do so under applicable local law, may file claims based on:

    (1) An individual's death.

    (2) A cause of action surviving an individual's death.

    (e) Insurers with subrogation rights may file claims for losses paid in full by them. The parties may file claims jointly or individually, to the extent of each party's interest, for losses partially paid by insurers with subrogation rights.

    (f) Authorized agents signing claims show their title or legal capacity and present evidence of authority to present the claims.

    79. Revise newly redesignated § 842.95 to read as follows:
    § 842.95 Who are proper claimants.

    (a) Citizens and inhabitants of the United States. US inhabitants includes dependents of the US military personnel and federal civilian employees temporarily outside the US for purposes of US Government service.

    (b) US military personnel and civilian employees. Note: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.

    (c) Foreign military personnel when the damage or injury occurs in the US. Do not pay for claims under the MCA for personal injury or death of a foreign military personnel that occurred incident to their service.

    (d) States, state agencies, counties, or municipalities, or their political subdivisions.

    (e) Subrogees of proper claimants to the extent they have paid for the claim in question.

    80. Revise newly redesignated § 842.96 to read as follows:
    § 842.96 Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.

    (b) Agencies and nonappropriated fund instrumentalities of the US Government including the District of Columbia government.

    (c) Inhabitants of foreign countries.

    (d) The state, territory and its political subdivisions whose Air National Guard member caused the loss.

    (e) Subrogees of the claimants in paragraphs (a) through (d) of this section.

    81. Revise newly redesignated § 842.97 to read as follows:
    § 842.97 Claims payable.

    Claims arising from noncombat activities of the United States when caused by ANG members performing duty under 32 U.S.C. and acting within the scope of their employment, whether or not such injuries or damages arose out of their negligent or wrongful acts or omissions.

    82. In newly redesignated § 842.98, revise paragraphs (a), (b), and (c) to read as follows:
    § 842.98 Claims not payable.

    (a) Claims covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.

    (b) NGCA claims arising from noncombat activities in the US are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the NGCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (i.e., duty, breach, causation, and damages); that is, they are fault based. Noncombat activity claims under the NGCA are based solely on causation and damages. Because NGCA claims for noncombat activities are not fault based, they are not covered by the FTCA.

    (c) See subpart E of this part for other claims not payable.

    83. Revise newly redesignated § 842.99 to read as follows:
    § 842.99 Applicable law.

    (a) Federal preemption. Many of the exclusions in this subpart are based upon the wording of 28 U.S.C. 2680 or other federal statutes or court decisions interpreting the Federal Tort Claims Act. Federal case law interpreting the same exclusions under the Federal Tort Claims Act is applied to the National Guard Claims Act. Where state law differs with federal law, federal law prevails.

    (b) Extent of liability. Where the claim arises is important in determining the extent of liability.

    (1) Applicable law. When a claim arises in the United States, its territories or possessions, the same law as if the claim was cognizable under the FTCA will be applied.

    (2) Claims in foreign countries. In claims arising in a foreign country, where the claim is for personal injury, death, or damage to or loss of real or personal property caused by an act or omission alleged to be negligent, wrongful, or otherwise involving fault of military personnel or civilian officers or employees of the United States acting within the scope of their employment, liability or the United States is determined according to federal case law interpreting the FTCA. Where the FTCA requires application of the law of the place where the act or omission occurred, settlement authorities will use the rules set forth in the currently adopted edition of the Restatement of the Law, published by the American Law Institute, to evaluate the liability of the Air Force, subject to the following rules:

    (i) Absolute or strict liability will not apply for claims not arising from noncombat activities.

    (ii) Hedonic damages are not payable.

    (iii) The collateral source doctrine will not apply.

    (iv) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.

    (v) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.

    (c) Claims not payable. Do not approve payment for:

    (1) Punitive damages.

    (2) Cost of medical or hospital services furnished at US expense.

    (3) Cost of burial expenses paid by the United States.

    (d) Settlement by insurer or joint tortfeasor. When settlement is made by an insurer or joint tortfeasor and an additional award is warranted, an award may be made if both of the following are present:

    (1) The United States is not protected by the release executed by the claimant.

    (2) The total amount received from such source is first deducted.

    84. Revise newly redesignated § 842.100 to read as follows:
    § 842.100 Appeal of final denials.

    This section explains the steps to take when a denial is appealed.

    (a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day time limit for good cause.

    (b) Upon receipt of the appeal, the original settlement authority reviews the appeal.

    (c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. Any higher settlement authority may act upon an appeal.

    (d) The decision of the appellate authority is the final administrative action on the claim.

    85. Revise newly redesignated § 842.101 to read as follows:
    § 842.101 Government's right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs or under contract. Do not seek contribution or indemnity from ANG members whose conduct gave rise to Government liability.

    86. Revise newly redesignated § 842.102 to read as follows:
    § 842.102 Attorney fees.

    In the settlement of any claim pursuant to 32 U.S.C. 715 and this subpart, attorney fees will not exceed 20 percent of any award provided that when a claim involves payment of an award over $1,000,000, attorney fees on that part of the award exceeding $1,000,000 may be determined by the Secretary of the Air Force. For the purposes of this section, an award is deemed to be the cost to the United States at the time of purchase of a structured settlement, and not its future value.

    Subpart N—[Redesignated as Subpart L] 87. Redesignate subpart N, consisting of §§ 842.115 through 842.125 as subpart L, consisting of §§ 842.103 through 842.113, respectively. 88. Revise newly redesignated § 842.103 to read as follows:
    § 842.103 Scope of this subpart.

    This subpart explains how the United States asserts and settles claims for costs of medical care, against third parties under the Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various other laws.

    89. Amend newly redesignated § 842.104 by revising the introductory text and paragraph (a) and adding paragraphs (h) and (i) to read as follows:
    § 842.104 Definitions.

    This section defines terms which are used within this subpart.

    (a) Medical Cost Reimbursement Program Regional Field Offices. The Chief of the Medical Cost Reimbursement Program (MCRP) Branch determines and assigns geographic responsibility for all regional field offices. Each field office is responsible for investigating all potential claims and asserting claims within their jurisdiction for the cost of medical care provided by either a Medical Treatment Facility or at a civilian facility through Tricare.

    (h) Accrued pay. The total of all pay accrued to the account of an active duty member during a period when the member is unable to perform military duties. It does not include allowances.

    (i) Future care. Medical care reasonably expected to be provided or paid for in the future treatment of an injured party as determined during the investigative process.

    90. Revise newly redesignated § 842.105 to read as follows:
    § 842.105 Delegations of authority.

    (a) Settlement authority. The following individuals have delegated authority to settle, compromise, or waive MCRP claims for $300,000 or less and to accept full payment on any claim:

    (1) The Judge Advocate General.

    (2) The Deputy Judge Advocate General.

    (3) The Director of Civil Law.

    (4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.

    (b) Redelegation of authority. The individuals described in paragraph (a) of this section may re-delegate a portion or all of their authority to subordinates, subject to the following limitations:

    (1) SJAs, when given Medical Cost Reimbursement (MCR) claims jurisdiction, are granted authority to waive, compromise, or settle claims in amounts of $25,000 or less. This authority may be re-delegated in writing with authority to re-delegate to subordinates.

    (2) SJAs of numbered Air Forces, when given MCR claims jurisdiction, are granted authority to waive, compromise, or settle claims in amounts of $40,000 or less. This authority may be re-delegated in writing with authority to re-delegate to subordinates.

    (3) SJAs of single base GCMs, the SJAs of GCMs in PACAF and USAFE, and the SJAs of each Air Force base, station, or fixed installation have delegated authority to compromise or waive claims for $15,000 or less and to accept full payment on any claim.

    (c) Authority to assert a claim. Each settlement authority has authority to assert a claim in any amount for the reasonable value of medical care.

    (d) Authority to reduce, withdraw, and restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority.

    (e) Settlement negotiations. A settlement authority may settle a claim filed for an amount within the delegated settlement authority. Claims in excess of the delegated authority must be approved by the next higher settlement authority. Unsuccessful negotiations at one level do not bind higher authority.

    Note to paragraph (e):

    Telephonic approvals, in the discretion of the higher settlement authority, are authorized.

    (f) Special exceptions. Only the Department of Justice (DOJ) may approve claims involving:

    (1) Compromise or waiver of a claim for more than $300,000.

    (2) Settlement previously referred to DOJ.

    (3) Settlement where a third party files suit against the US or the injured party arising out of the same incident.

    91. Revise newly redesignated § 842.107 to read as follows:
    § 842.107 Nonassertable claims.

    The following are considered nonassertable claims and should not be asserted:

    (a) Claims against any department, agency, or instrumentality of the United States. “Agency or instrumentality” includes any self-insured nonappropriated fund activity whether revenue producing, welfare, or sundry. The term does not include private associations.

    (b) Claims for care furnished a veteran by the Department of Veterans Affairs (VA) for service connected disability. However, claims may be asserted for the reasonable value of medical care an Air Force member receives prior to his or her discharge and transfer to the VA facility or when the Air Force has reimbursed the VA facility for the care.

    (c) Claims for care furnished a merchant seaman under 42 U.S.C. 249. A claim against the seaman's employer should not be filed.

    (d) Government contractors. In claims in which the United States must reimburse the contractor for a claim according to the terms of the contract, settlement authorities investigate the circumstances surrounding the incident to determine if assertion is appropriate. If the US is not required to reimburse the contractor, the MCR authority may assert a claim against the contractor.

    (e) Foreign governments. Settlement authorities investigate any claims that might be made against foreign governments, their political subdivisions, armed forces members or civilian employees.

    (f) U.S. personnel. Claims are not asserted against members of the uniformed services; employees of the US, its agencies or instrumentalities; or an individual who is a dependent of a service member or employee at the time of assertion unless they have insurance to pay the claim, they were required by law or regulation to have insurance which would have covered the Air Force, or their actions, which necessitated the medical treatment provided at government expense, constituted willful misconduct or gross negligence.

    92. Amend newly redesignated § 842.108 by revising paragraphs (a) and (b) to read as follows:
    § 842.108 Asserting the claim.

    (a) MCR personnel assert a claim against a tortfeasor or other third party using a formal letter on Air Force stationery. The assertion is made against all potential payers, including insurers. The demand letter should state the legal basis for recovery and sufficiently describe the facts and circumstances surrounding the incident giving rise to medical care. Applicable bases of recovery include US status as a third-party beneficiary under various types of insurance policies, workers' compensation laws, no-fault laws, or other Federal statutes, including Coordination of Benefits (COB) or FMCRA.

    (b) The MCR authority must promptly notify the injured parties or their legal representatives, in writing, that the United States will attempt to recover from the third parties the reasonable value of medical care furnished or to be furnished and that they:

    (1) Should seek advice from a legal assistance officer or civilian counsel.

    (2) Must cooperate in the prosecution of all actions of the United States against third parties.

    (3) Must furnish a complete statement regarding the facts and circumstances surrounding the incident which caused the injury.

    (4) Must not execute a release or settle any claim which exists as a result of the injury without prior notice to the MCR authority.

    93. Revise newly redesignated § 842.109 to read as follows:
    § 842.109 Referring a claim to the US Attorney.

    (a) All cases that require forwarding to the DoJ must be routed through the Chief, MCRP. The MCR authority ensures that personnel review all claims for possible referral not later than two years after the date of the incident for tort based cases.

    (b) The United States or the injured party on behalf of the United States must file suit within 3 years after an action accrues. This is usually 3 years after the initial treatment is provided in a federal medical facility or after the initial payment is made by Tricare, whichever is first.

    94. Revise newly redesignated § 842.111 to read as follows:
    § 842.111 Recovery rates in government facilities.

    The Federal Register contains the rates set by the Office of Management and Budget, of which judges take judicial notice. Apply the rates in effect at the time of care to claims.

    95. Revise newly redesignated § 842.112 to read as follows:
    § 842.112 Waiver and compromise of United States interest.

    Waivers and compromises of government claims can be made. This section lists the basic guidance for each action. (See this subpart for claims involving waiver and compromise of amounts in excess of settlement authorities' delegated amounts.)

    (a) Convenience of the Government. When compromising or waiving a claim for convenience of the Government, settlement authorities should consider the following factors:

    (1) Risks of litigation.

    (2) Questionable liability of the third party.

    (3) Costs of litigation.

    (4) Insurance (Uninsured or Underinsured Motorist and Medical Payment Coverage) or other assets of the tortfeasor available to satisfy a judgment for the entire claim.

    (5) Potential counterclaim against the US.

    (6) Jury verdict expectancy amount.

    (7) Amount of settlement with proposed distribution.

    (8) Cost of any future care.

    (9) Tortfeasor cannot be located.

    (10) Tortfeasor is judgment proof.

    (11) Tortfeasor has refused to pay and the case is too weak for litigation.

    (b) Hardship on the injured party. When compromising or waiving a claim to avoid undue hardship on the injured party, settlement authorities should consider the following factors:

    (1) Permanent disability or disfigurement of the injured party.

    (2) Decreased earning power of the injured party.

    (3) Out of pocket losses to the injured party.

    (4) Financial status of the injured party.

    (5) Pension rights of the injured party.

    (6) Other government benefits available to the injured party.

    (7) An offer of settlement from a third party which includes virtually all of the thirty party's assets, although the amount is considerably less than the calculation of the injured party's damages.

    (8) Whether the injured party received excessive treatment.

    (9) Amount of settlement with proposed distribution, including reductions in fees or damages by other parties, medical providers, or attorneys in order to reduce the hardship on the injured party.

    (c) Compromise or waiver. A compromise or waiver can be made upon written request from the injured party or the injured party's legal representative.

    96. Revise newly redesignated § 842.113 to read as follows:
    § 842.113 Reconsideration of a waiver for undue hardship.

    A settlement authority may reconsider its previous action on a request for waiver or compromise whether requested or not. Reconsideration is normally on the basis of new evidence or discovery of errors in the waiver submission or settlement, but can be based upon a re-evaluation of the claim by the settlement authority.

    Subpart O—[Removed] 97. Remove subpart O, consisting of §§ 842.126 through 842.136. 98. Add new subpart M, consisting of §§ 842.114 through 842.117, to read as follows: Subpart M—Nonappropriated Fund Claims Sec. 842.114 Scope of this subpart. 842.115 Definitions. 842.116 Payment of claims against NAFIs. 842.117 Claims by customers, members, participants, or authorized users.
    § 842.114 Scope of this subpart.

    This subpart describes how to settle claims for and against the United States for property damage, personal injury, or death arising out of the operation of nonappropriated fund instrumentalities (NAFIs). Unless stated below, such claims will follow procedures outlined in other subparts of this part for the substantive law applicable to the particular claim. For example, a NAFI claim adjudicated under the Federal Tort Claims Act will follow procedures in this subpart as well as subpart K of this part.

    § 842.115 Definitions.

    (a) Army and Air Force Exchange Service (AAFES). The Army and Air Force Exchange Service is a joint command of the Army and Air Force, under the jurisdiction of the Chiefs of Staff of the Army and Air Force, which provides exchange and motion picture services to authorized patrons.

    (b) Morale, welfare, and recreation (MWR) activities. Air Force MWR activities are activities operated directly or by contract which provide programs to promote morale and well-being of the Air Force's military and civilian personnel and their dependents. They may be funded wholly with appropriated funds, primarily with nonappropriated funds (NAF), or with a combination of appropriated funds and NAFs.

    (c) Nonappropriated funds. Nonappropriated funds are funds generated by Department of Defense military and civilian personnel and their dependents and used to augment funds appropriated by the Congress to provide a comprehensive morale-building, welfare, religious, educational, and recreational program, designed to improve the well-being of military and civilian personnel and their dependents.

    (d) Nonappropriated funds instrumentality. A nonappropriated fund instrumentality is a Federal Government instrumentality established to generate and administer nonappropriated funds for programs and services contributing to the mental and physical well-being of personnel.

    § 842.116 Payment of claims against NAFIs.

    Substantiated claims against NAFIs must not be paid solely from appropriated funds. Claims are sent for payment as set out in this subpart. Do not delay paying a claimant because doubt exists whether to use appropriated funds or NAFs. Pay the claim initially from appropriated funds and decide the correct funding source later.

    § 842.117 Claims by customers, members, participants, or authorized users.

    (a) Customer complaints. Do not adjudicate claims complaints or claims for property loss or damage under this subpart that the local NAFI activity can satisfactorily resolve.

    (b) Claims generated by concessionaires. Most concessionaires must have commercial insurance. Any unresolved claims or complaints against concessionaires or their insurers are sent to the appropriate contracting officers.

    Subpart P—[Redesignated as Subpart N] 99. Redesignate subpart P, consisting of §§ 842.137 through 842.143, as subpart N, consisting of §§ 842.118 through 842.124. 100. Revise newly redesignated § 842.118 to read as follows:
    § 842.118 Scope of this subpart.

    (a) This subpart explains how to process certain administrative claims:

    (1) Against the United States for property damage, personal injury, or death, arising out of Air Force assigned noncombat missions performed by the Civil Air Patrol (CAP), as well as certain other Air Force authorized missions performed by the CAP in support of the Federal Government.

    (2) In favor of the United States for damage to US Government property caused by CAP members or third parties.

    (b) Unless stated in this subpart, such claims will follow procedures outlined in other subparts of this part for the substantive law applicable to the particular claim. For example, a CAP claim adjudicated under the Military Claims Act will follow procedures in this subpart as well as subpart E of this part.

    §§ 842.120 and 842.121 [Removed]
    101. Remove newly redesignated §§ 842.120 and 842.121.
    §§ 842.122 through 842.124 [Redesignated as §§ 842.120 through 842.122]
    102. Newly redesignated §§ 842.122 through 842.124 are further redesignated as §§ 842.120 through 842.122, respectively. Subpart Q—[Redesignated as Subpart O] 103. Redesignate subpart Q, consisting of §§ 842.144 through 842.150, as subpart O, consisting of §§ 842.123 through 842.129. 104. Revise newly redesignated § 842.123 to read as follows:
    § 842.123 Scope of this subpart.

    This subpart tells how to make an advance payment before a claim is filed or finalized under the Military Claims, Foreign Claims and National Guard Claims Acts.

    105. In newly redesignated § 842.124, revise paragraph (c)(4) to read as follows:
    § 842.124 Delegation of authority.

    (c) * * *

    (4) SJAs of the Air Force component commander of the U.S. geographic combatant commands for claims arising within their respective combatant command areas of responsibility.

    106. In newly redesignated § 842.126, revise paragraph (b) to read as follows:
    § 842.126 When authorized.

    (b) The potential claimant has an immediate need amounting to a hardship for food, shelter, medical or burial expenses, or other necessities. In the case of a commercial enterprise, severe financial loss or bankruptcy will result if the Air Force does not make an advance payment.

    Henry Williams, Acting Air Force Federal Liaison Officer.
    [FR Doc. 2016-25554 Filed 11-21-16; 8:45 am] BILLING CODE 5001-10-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2014-0492; FRL-9955-50-OAR] RIN 2060-AR97 Clarification of Requirements for Method 303 Certification Training AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing revisions to better define the requirements associated with conducting Method 303 training courses. Method 303 is an air pollution test method used to determine the presence of visible emissions (VE) from coke ovens. This action adds language that clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method. These revisions will help entities interested in conducting the required training courses by clearly defining the requirements necessary to do so.

    DATES:

    The final rule is effective on December 22, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0492. 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:

    Ms. Kim Garnett, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Measurement Technology Group (Mail Code: E143-02), Research Triangle Park, NC 27711; telephone number: (919) 541-1158; fax number: (919) 541-0516; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? B. What action is the agency taking? C. Judicial Review II. Background III. Changes Included in the Final Method 303 Clarification IV. Summary of Major Comments and Responses A. Technology Improvement B. Training Requirements V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Does this action apply to me?

    This action applies to you if you are a potential provider of Method 303 training services, someone seeking training to conduct Method 303, or a facility subject to Method 303.

    B. What action is the agency taking?

    This final action adds language that further clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method.

    C. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by January 23, 2017. Under section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.

    II. Background

    On October 27, 1993, we published Method 303 for determining VE from coke ovens (58 FR 57898). Method 303 is applicable for the determination of VE from the following by-product coke oven battery sources: Charging systems during charging; doors, topside port lids and offtake systems on operating coke ovens; and collecting mains. Method 303 is also applicable to qualifying observers for visually determining the presence of VE from by-product coke ovens. The EPA received inquiries from state/local agencies seeking the specifics of the procedures used to qualify observers. The EPA proposed these clarifications on February 25, 2016 (81 FR 9407). We received public comments from two individuals.

    III. Changes Included in the Final Method 303 Clarification

    Method 303 section 10.1 (40 CFR part 63, appendix B) presently states that “The Method 303 course shall be conducted by or under the sanction of the EPA and shall consist of classroom instruction, field observation, and a proficiency test. . . .” We are amending this language by removing the statement indicating that these courses be conducted by or under the sanction of the EPA. Instead, Administrator-approved training providers will be allowed to conduct Method 303 training and certification. We are, therefore, revising Method 303 to define the administrative and recordkeeping requirements that must be followed by Method 303 training providers. This action: (1) Defines Administrator approval of Method 303 training providers, clarifies the minimum training course requirements, and details the recordkeeping requirements that the training provider must follow in order to attain Administrator approval (section 10.1); (2) adds language to clarify that VE readers must demonstrate a perfect score on the recertification exam (section 10.1.2); (3) updates and expands the criteria used to determine who is qualified to participate on the proficiency test panel (section 10.1.3); (4) adds criteria for training certificates, submittal of this information, and recordkeeping (sections 10.1.4-10.1.6); and (5) defines conditions for suspension of the training provider's approval by the Administrator (section 10.1.7). There are no changes to the requirements for conducting the test method.

    IV. Comments and Responses A. Technology Improvement

    The first commenter suggested that the EPA should require the inspector to utilize digital imagery to document the visible emission observation. This comment is beyond the scope of the present action. This action does not involve the merits of Method 303, but rather training requirements in order for observers to be qualified to conduct Method 303 testing. No change to the rule was made in response to this comment.

    B. Training Requirements

    The first commenter, also, stated that the quality of third-party Method 9 lectures is simply not good enough to ensure that any level of training is achieved, and seems to suggest that the Method 9 lecture is the only training involved. While attending the lecture portion of Method 9 is a prerequisite to receiving Method 303 certification, this requirement is to ensure individuals have a basic understanding of opacity measurement. It is not the sole training requirement. For example, the trainee must successfully complete the Method 303 training course, satisfy the field observation requirement, and demonstrate adequate performance and sufficient knowledge of Method 303 (see section 10.1). A trainee must also verify completion of at least 12 hours of field observation prior to attending the Method 303 certification course (see section 10.1.1). There are numerous other requirements as well. Therefore, the EPA believes an approved Method 303 training course will be comprehensive enough to assure that individuals who receive certification to determine VE from coke oven battery sources are proficient regardless of any perceived inadequacy of Method 9 lectures. No change to the rule was made in response to this comment.

    The second commenter expressed concerns over the possible use of ad hoc panel members, stating these panel members may have inconsistent interpretations of Method 303 and different inspection practices at the plants. The EPA agrees with the comment regarding the make-up of the certification panel, and is amending the Method 303 rule language in section 10.1.3 to specify that the composition of the panel will be approved by the Administrator as part of the training course approval process. During this approval process, the experience of each panel member will be reviewed in order to ensure consistency.

    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 (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.

    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. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more for 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. This action clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method. 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 (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action 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 action would make corrections and updates to an existing protocol for assessing the precision and accuracy of alternative test methods to ensure they are comparable to the methods otherwise required; thus, it does not modify or affect the impacts to human health or the environment of any standards for which it may be used.

    K. Congressional Review Act

    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. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 23, 2017.

    Clarification of Requirements for Method 303 Certification Training List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Test methods.

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

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

    PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. In Appendix A, amend Method 303: a. In section 5.0 by revising paragraph 5.2; and b. In section 10.0 by: i. Revising paragraphs 10.1, 10.1.1, 10.1.2, and 10.1.3; ii. Adding paragraphs 10.1.4, 10.1.5, 10.1.6, and 10.1.7; and iii. Revising paragraph 10.2.

    The revisions and additions read as follows.

    Appendix A to Part 63—Test Methods Method 303—Determination of Visible Emissions From By-Product Coke Oven Batteries 5.0 Safety

    5.2 Safety Training. Because coke oven batteries have hazardous environments, the training materials and the field training (section 10.0) shall cover the precautions required to address health and safety hazards.

    10.0 Calibration and Standardization

    10.1 Certification Procedures. This method requires only the determination of whether VE occur and does not require the determination of opacity levels; therefore, observer certification according to Method 9 in appendix A to part 60 of this chapter is not required to obtain certification under this method. However, in order to receive Method 303 observer certification, the first-time observer (trainee) shall have attended the lecture portion of the Method 9 certification course. In addition, the trainee shall successfully complete the Method 303 training course, satisfy the field observation requirement, and demonstrate adequate performance and sufficient knowledge of Method 303. The Method 303 training provider and course shall be approved by the Administrator and shall consist of classroom instruction, field training, and a proficiency test. In order to apply for approval as a Method 303 training provider, an applicant must submit their credentials and the details of their Method 303 training course to Group Leader, Measurement Technology Group (E143-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. Those details should include, at a minimum:

    (a) A detailed list of the provider's credentials.

    (b) An outline of the classroom and the field portions of the class.

    (c) Copies of the written training and lecture materials, to include:

    (1) The classroom audio-visual presentation(s).

    (2) A classroom course manual with instructional text, practice questions and problems for each of the elements of the Method 303 inspection (i.e., charging, doors, lids and offtakes, and collecting mains). A copy of Method 303 and any related guidance documents should be included as appendices.

    (3) A copy of the Method 303 demonstration video, if not using the one available at: http://www3.epa.gov/ttn/emc/methods/method303trainingvideo.mp4.

    (4) Multiple-choice certification tests, with questions sufficient to demonstrate knowledge of the method, as follows: One (1) Initial certification test and three (3) third-year recertification tests (the questions on any one recertification test must be at least 25 percent different from those on the other recertification tests).

    (5) A field certification checklist and inspection forms for each of the elements of the Method 303 inspection (i.e., charging, doors, lids and offtakes, and collecting mains).

    (6) The criteria used to determine proficiency.

    (7) The panel members to be utilized (see Section 10.1.3) along with their qualifications.

    (8) An example certificate of successful course completion.

    10.1.1 A trainee must verify completion of at least 12 hours of field observation prior to attending the Method 303 certification course. Trainees shall observe the operation of a coke oven battery as it pertains to Method 303, including topside operations, and shall also practice conducting Method 303 or similar methods. During the field observations, trainees unfamiliar with coke battery operations shall receive instruction from an experienced coke oven observer who is familiar with Method 303 or similar methods and with the operation of coke batteries.

    10.1.2 The classroom instruction shall familiarize the trainees with Method 303 through lecture, written training materials, and a Method 303 demonstration video. Successful completion of the classroom portion of the Method 303 training course shall be demonstrated by a perfect score on the initial certification test. Those attending the course for third-year recertification must complete one of the recertification tests selected at random.

    10.1.3 All trainees must demonstrate proficiency in the application of Method 303 to a panel of three certified Method 303 observers, including an ability to differentiate coke oven emissions from condensing water vapor and smoldering coal. The composition of the panel must be approved by the Administrator as part of the training course approval process. The panel members will be EPA, state or local agency personnel, or industry contractors listed in 59 FR 11960 (March 15, 1994) or qualified as part of the training provider approval process of section 10.1 of this method.

    Each panel member shall have at least 120 days experience in reading visible emissions from coke ovens. The visible emissions inspections that will satisfy the experience requirement must be inspections of coke oven battery fugitive emissions from the emission points subject to emission standards under subpart L of this part (i.e., coke oven doors, topside port lids, offtake system(s), and charging operations), using either Method 303 or predecessor state or local test methods. A “day's experience” for a particular inspection is a day on which one complete inspection was performed for that emission point under Method 303 or a predecessor state or local method. A “day's experience” does not mean 8 or 10 hours performing inspections, or any particular time expressed in minutes or hours that may have been spent performing them. Thus, it would be possible for an individual to qualify as a Method 303 panel member for some emission points, but not others (e.g., an individual might satisfy the experience requirement for coke oven doors, but not topside port lids). Until November 15, 1994, the EPA may waive the certification requirement (but not the experience requirement) for panel members. The composition of the panel shall be approved by the EPA.

    The panel shall observe the trainee in a series of training runs and a series of certification runs. There shall be a minimum of 1 training run for doors, topside port lids, and offtake systems, and a minimum of 5 training runs (i.e., 5 charges) for charging. During training runs, the panel can advise the trainee on proper procedures. There shall be a minimum of 3 certification runs for doors, topside port lids, and offtake systems, and a minimum of 15 certification runs for charging (i.e., 15 charges). The certification runs shall be unassisted. Following the certification test runs, the panel shall approve or disapprove certification based on the trainee's performance during the certification runs. To obtain certification, the trainee shall demonstrate, to the satisfaction of the panel, a high degree of proficiency in performing Method 303. To aid in evaluating the trainee's performance, a checklist, approved by the EPA, will be used by the panel members.

    10.1.4 Those successfully completing the initial certification or third-year recertification requirements shall receive a certificate showing certification as a Method 303 observer and the beginning and ending dates of the certification period.

    10.1.5 The training provider will submit to the EPA or its designee the following information for each trainee successfully completing initial certification or third-year recertification training: Name, employer, address, telephone, cell and/or fax numbers, email address, beginning and ending dates of certification, and whether training was for 3-year certification or 1-year recertification. This information must be submitted within 30 days of the course completion.

    10.1.6 The training provider will maintain the following records, to be made available to EPA or its designee on request (within 30 days of a request):

    (a) A file for each Method 303 observer containing the signed certification checklists, certification forms and test results for their initial certification, and any subsequent third-year recertifications. Initial certification records must also include documentation showing successful completion of the training prerequisites. Testing results from any interim recertifications must also be included, along with any relevant communications.

    (b) A searchable master electronic database of all persons for whom initial certification, third-year recertification or interim recertification. Information contained therein must include: The observer's name, employer, address, telephone, cell and fax numbers and email address, along with the beginning and ending dates for each successfully completed initial, third-year and interim recertification.

    10.1.7 Failure by the training provider to submit example training course materials and/or requested training records to the Administrator may result in suspension of the approval of the provider and course.

    10.2 Observer Certification/Recertification. The coke oven observer certification is valid for 1 year. The observer shall recertify annually by reviewing the training material, viewing the training video and answering all of the questions on the recertification test correctly. Every 3 years, an observer shall be required to pass the proficiency test in section 10.1.3 in order to be certified. The years between proficiency tests are referred to as interim years.

    [FR Doc. 2016-28097 Filed 11-21-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0488; FRL-9953-40] Spodoptera frugiperda Multiple Nucleopolyhedrovirus Strain 3AP2; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2 in or on all food commodities when used in accordance with label directions and good agricultural practices. MacIntosh and Associates, Inc. (on behalf of AgBiTech Pty Ltd.) submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2 under FFDCA.

    DATES:

    This regulation is effective November 22, 2016. Objections and requests for hearings must be received on or before January 23, 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-2015-0488, 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:

    Robert McNally, Biopesticides and Pollution Prevention Division (7511P), 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 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(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0488 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 23, 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-2015-0488, 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. Background

    In the Federal Register of November 25, 2015 (80 FR 73695) (FRL-9937-14), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 5F8361) by MacIntosh and Associates, Inc., 1203 Hartford Ave., St. Paul, MN 55116-1622 (on behalf of AgBiTech Pty Ltd, 8 Rocla Ct., Glenvale, Queensland 4350, Australia). The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Spodoptera frugiperda multiple nucleopolyhedrovirus—3AP2 in or on food crops. That document referenced a summary of the petition prepared by the petitioner MacIntosh and Associates, Inc. (on behalf of AgBiTech Pty Ltd), which is available in the docket via http://www.regulations.gov. There were no comments received in response to the notice of filing.

    III. Final Rule A. EPA's Safety Determination

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption 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 . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of a particular pesticide's . . . residues and other substances that have a common mechanism of toxicity.”

    EPA evaluated the available toxicity and exposure data on Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2 and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which EPA relied and its risk assessment based on that data can be found within the August 31, 2016, document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Spodoptera frugiperda Multiple Nucleopolyhedrovirus strain 3AP2.” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES. Based upon its evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2. Therefore, an exemption from the requirement of a tolerance is established for residues of Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2 in or on all food commodities when used in accordance with label directions and good agricultural practices.

    B. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes for the reasons contained in the August 31, 2016, document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Spodoptera frugiperda Multiple Nucleopolyhedrovirus strain 3AP2” and because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

    IV. Statutory and Executive Order Reviews

    This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. 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 exemption in this action, 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. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA 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, EPA 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 EPA's 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).

    V. 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 20, 2016. Jack E. Housenger, Director, 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. Add § 180.1339 to subpart D to read as follows:
    § 180.1339 Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2; exemption from the requirement of a tolerance.

    An exemption from the requirement of a tolerance is established for residues of Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2 in or on all food commodities when used in accordance with label directions and good agricultural practices.

    [FR Doc. 2016-28099 Filed 11-21-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket No. 10-90; FCC 16-143] Connect America Fund AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) adopts tailored service obligations for Alaska Communications Systems (ACS), a carrier serving a non-contiguous area that elected to receive nearly $20 million annually in Connect America Phase II frozen support amounts in lieu of model-based support.

    DATES:

    Effective December 22, 2016, except for the certification in paragraph 33 which contains a new information collection requirement that will not be effective until approved by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date for that certification.

    FOR FURTHER INFORMATION CONTACT:

    Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order in WC Docket No. 10-90; FCC 16-143, adopted on October 24, 2016 and released on October 31, 2016. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, or at the following Internet address: http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db1031/FCC-16-143A1.pdf.

    I. Introduction

    1. In this Order, the Commission adopts tailored service obligations for Alaska Communications Systems (ACS), a carrier serving a non-contiguous area that elected to receive nearly $20 million annually in Connect America Phase II frozen support amounts in lieu of model-based support. The Commission finds these obligations are in the public interest and will advance the Commission's goal of ensuring universal availability of modern networks capable of providing voice and broadband service. Specifically, ACS will receive Phase II frozen support for a 10-year term and be required to offer voice service and broadband service at the same speed, latency, usage and pricing metrics as established for Phase II model-based carriers to at least 31,571 locations, primarily in census blocks identified as high-cost that are unserved by unsubsidized competitors, with limited exceptions. These service obligations strike the appropriate balance of ensuring Alaska consumers receive broadband service while also allowing ACS the flexibility to provide that service in a way that is logical, maximizes its network and is reasonable considering the unique climate and geographic conditions of its service territory.

    II. Discussion

    2. As described below, the Commission adopts specific service obligations for ACS as a non-contiguous carrier electing to receive Phase II frozen support. The service obligations established today maintain many of the same public interest standards as those established for model-based price cap carriers, but allow flexibility in both buildout locations and the deployment schedule to account for the distinctive geographic and climate challenges of building and providing voice and broadband service in Alaska. By adopting these standards today, the Commission establishes clear deadlines for planning and deploying new broadband services to consumers in Alaska, as well as clear obligations to maintain existing service. The Commission finds these service obligations are in the public interest as ACS will provide advanced communication service to at least 31,571 locations.

    3. Speed. The Commission adopts 10/1 Mbps as the minimum broadband speed requirement for ACS's Phase II broadband deployment.

    4. ACS stated in its comments in response to the April 2014 Connect America FNPRM, 79 FR 39196, July 9, 2014, that it intends to provide speeds of at least 10/1 Mbps in its service territory and did not request a lesser speed in any location. In fact, ACS stated that it prefers a 10/1 Mbps service obligation, and planned its proposal accordingly. ACS explains that providing 10/1 Mbps service is more costly, however, than providing 4/1 Mbps service and requests that the 10/1 Mbps standard only be adopted if a ten-year term of support is adopted.

    5. In the December 2014 Connect America Order, 80 FR 4446, January 27, 2015, the Commission adopted 10/1 Mbps as the minimum broadband speed for all ETCs subject to broadband performance obligations. Although the Commission has determined that 25/3 Mbps reflects “advanced” capabilities, the Commission has explained that “[b]y setting a lower baseline for Connect America funding, the Commission establishes a framework to ensure a basic level of service to be available for all Americans, while at the same time working to provide access to advanced services.” Based on the record before us, the Commission sees no reason to apply a different standard to ACS. Accordingly, the Commission adopts 10/1 Mbps as the minimum broadband speed requirement for deployment of broadband services to a specified number of locations in the ACS service territory and as a condition of receiving frozen support. While this represents the minimum, consistent with our recent decision to improve oversight over the outcomes achieved by rate-of-return carriers, ACS will also report to us the number of locations that will receive 25/3 Mbps service so that the Commission can track progress over time in achieving higher speeds.

    6. Latency. The Commission adopts a roundtrip provider network latency requirement of 100 ms or less for ACS's Phase II broadband deployment.

    7. In the April 2014 Connect America FNPRM, the Commission proposed that non-contiguous carriers be required to meet a roundtrip provider network latency of 100 ms or less. The Commission proposed that non-contiguous carriers choosing frozen support conduct their latency network testing from the customer location to a point at which traffic is consolidated for transport to an Internet exchange point in the continental United States. The Commission also proposed exempting non-contiguous carriers from the latency requirements to the extent the carriers rely exclusively on satellite backhaul facility and certify annually that no terrestrial backhaul options exist.

    8. ACS stated in its comments that it intends to meet the Phase II parameters for roundtrip latency of 100 ms or less. Further, ACS confirms that none of the areas where it proposes to deploy new broadband rely exclusively on the use of satellite backhaul to deliver service. Accordingly, there is no reason in the record before us to relax the latency standard for ACS' proposed Phase II deployment. The Commission adopts the same requirement as implemented by the Bureau for model-based carriers in the Phase II Service Obligations Order, 78 FR 70881, November 27, 2013. Specifically, ACS must certify that 95 percent or more of all peak period measurements (also referred to as observations) of network round trip latency are at or below 100 ms. The measurements should be conducted over a minimum of two consecutive weeks during peak hours for at least 50 randomly-selected customer locations within the census blocks for which the provider is receiving frozen support using existing network management systems, ping tests, or other commonly available network measurement tools. ACS should conduct its latency network testing from the customer location to a point at which traffic is consolidated for transport to an Internet exchange point in the continental United States. The Commission adopts this latency standard for deployment of broadband services in the ACS service territory and as a condition of receiving of frozen support.

    9. Usage Allowance. The Commission concludes that ACS will be required to provide a usage allowance that evolves over time to remain reasonably comparable to usage by subscribers in urban areas, similar to the approach adopted for price cap carriers.

    10. In the April 2014 Connect America FNPRM, the Commission proposed that non-contiguous carriers continuing to receive frozen support be subject to the same usage allowance as that specified by the Bureau for price cap carriers receiving model-based support. Under the approach previously implemented by the Bureau for Phase II model-based support, price cap carriers must either provide a usage allowance based on the nationwide annual urban rate survey, or a usage allowance consistent with the usage level of 80 percent of their own broadband subscribers including those subscribers that live outside of Phase II-funded areas, subject to a 100 gigabyte (GB) per month floor. The Commission sought comment on whether—in light of the potentially unique circumstances in non-contiguous areas—it would be appropriate to relax the 100 GB minimum usage allowance for non-contiguous carriers and instead allow them to meet their usage requirements based on a comparison to 80 percent of their entire subscriber base. The Commission also proposed exempting non-contiguous carriers from the usage requirements to the extent the carriers rely exclusively on satellite backhaul facility and certify annually that no terrestrial backhaul options exist.

    11. ACS stated in its comments that it intends to meet the Phase II obligations for usage and did not suggest any relaxation of the usage requirement was necessary. ACS also later explained that it is not its practice or policy to impose a data usage cap on its customers, and ACS has no intention of limiting usage in the future. ACS proposes to be subject to the same usage standard as that required for those carriers accepting the offer of model-based support.

    12. Earlier this year, the Bureau announced that, based on the most recent publicly available Measuring Broadband America data, 80 percent of cable subscribers nationwide are using 156 GB, and it therefore set the 2016 minimum usage allowance for eligible telecommunications carriers subject to broadband public interest obligations at 150 GB per month. The Commission concludes that ACS as a non-contiguous carrier should be subject to the same general approach as implemented by the Bureau for the carriers that accepted model-based support. Like the price cap carriers receiving model-based support, the Commission requires ACS to offer at least one service option that provides a usage allowance that meets or exceeds the usage level of 80 percent of cable or fiber-based fixed broadband subscribers, whichever is higher, according to the most current publicly available Measuring Broadband America usage data. This minimum will be announced annually by the Bureau. Alternatively, ACS may offer a usage allowance consistent with the usage level of 80 percent of its own broadband subscribers, including those subscribers that live outside of Phase II-funded areas, subject to a 150 GB floor. The Commission concludes it appropriate to update the minimum floor that ACS will be subject to in light of the more current information regarding usage trends. The Commission expects that ACS should have no problems meeting this requirement given its representation that it does not currently impose a usage limit on its customers or have any intent to do so in the future.

    13. Reasonably Comparable Rates. ACS will be subject to the same obligation as all other recipients of high-cost universal service support to provide voice and broadband service at reasonably comparable rates.

    14. In the April 2014 Connect America FNPRM, the Commission proposed to require non-contiguous carriers electing frozen support to offer both voice and broadband service at rates reasonably comparable to those services offered in urban areas. The Commission proposed the same two options for showing reasonable comparability as were adopted for model-based carriers: compliance with reasonable comparability benchmarks or a certification by the carrier that it offers the same or lower rates in rural areas as it does in urban areas. The Commission sought comment on whether non-contiguous carriers would face any challenges meeting this requirement. ACS stated in its comments that it does not anticipate challenges in meeting the statutory requirement to provide voice and broadband service at rates reasonably comparable to those offered in urban areas.

    15. In a separate order, the Commission recently directed the Wireline Competition Bureau to establish an Alaska-specific reasonable comparability benchmark using data from its urban rate survey or other sources, as appropriate. The Commission will provide ACS the same two options for demonstrating compliance with this statutory requirement: by meeting the Alaska-specific benchmark or offering the same or lower rates in rural areas as it does in urban areas. As with model-based carriers, ACS will be required to certify annual compliance with this requirement as explained further below.

    16. The Commission adopts a 10-year term of support for ACS's Phase II frozen support (2016-2025). As noted above, in the April 2014 Connect America FNPRM, the Commission sought comment on whether to specify a five-year term for those non-contiguous carriers that elect to receive frozen support, and whether there is a need to modify the term of support for such non-contiguous carriers. The Commission sought comment on any specific extenuating circumstances in non-contiguous areas that would require extending the term of frozen support for longer than five years.

    17. ACS stated in its proposal that it will require a 10-year term of support to complete buildout to the stated number of locations and that buildout within five years is impossible. ACS explained that due to the harsh weather conditions of Alaska it is forced into a shortened construction season of three to four summer months throughout its service territory and thus a slower pace of progress. Further, ACS states it is challenged by decreased availability of experienced and qualified professionals knowledgeable in designing and deploying these services in Alaska—extending the time required to plan for deployment. Also, due to its remote northern location and unique construction limitations, ACS claims that it also confronts higher costs for broadband deployment. Ultimately, ACS argues these factors together require a 10-year term of support.

    18. The Commission recognizes the climate and geographic challenges ACS faces in serving Alaska and find that adopting a 10-year term of support for ACS is in the public interest. While the Commission expects ACS to use its best efforts to expedite deployment, the Commission recognizes the shortened construction season and limited availability of experienced personnel is a unique limitation for ACS in Alaska that could slow the pace of buildout. Accordingly, the Commission adopts a 10-year term of support for ACS as a non-contiguous carrier electing Phase II frozen support, which will run from January 1, 2016, and end on December 31, 2025. For administrative reasons, the Commission finds it necessary to conform the term of support to the calendar year, to align reporting and other monitoring activities with that of other carriers. As discussed more completely below, ACS will be required to report its proposed list of locations by October 1, 2018. In year eight, the Commission expects it will conduct a rulemaking to determine how support will be awarded to serve these locations after the end of the ten-year period.

    19. In the April 2014 Connect America FNPRM, the Commission sought comment on the specific build out obligations that non-contiguous carriers receiving frozen support would have in those census blocks that do not currently have broadband service meeting the Commission's requirements. Specifically, the Commission asked whether non-contiguous carriers receiving frozen support should be required to deploy voice and broadband-capable networks and offer services meeting the adopted performance metrics to all locations in those funded areas, consistent with the state-level commitments required of carriers receiving model-based support. In the alternative, the Commission asked whether these carriers should be allowed to serve some subset of locations within their respective service areas where the average cost equals or exceeds the funding benchmark established by the Bureau. Lastly, the Commission asked whether they should also be required to extend broadband-capable networks to locations in census blocks determined by the model to be above the extremely high-cost threshold.

    20. ACS elected to receive Phase II frozen support for its entire service territory, and therefore, none of the census blocks in its service territory are eligible for the Phase II competitive bidding process. Below, the Commission addresses the specific geographic parameters for ACS' provision of voice and broadband service within its existing designated service territory and provide ACS with flexibility in its broadband deployment to account for the unique nature of serving Alaska. The Commission also provides ACS with forbearance relief consistent with the relief it provided other price cap carriers.

    21. Number of Locations. The Commission requires ACS to offer voice and broadband service to a minimum of 31,571 locations that are not served by an unsubsidized competitor at 10/1 Mbps or better to meet its Phase II obligations, subject to the flexibility described below.

    22. ACS proposes to use Phase II frozen support to offer service to a minimum of 26,000 locations that are not served by any provider, which would occur in those census blocks that were identified as high-cost by the cost model with certain exceptions discussed below. Initially, ACS proposed to offer service to 29,418 locations but later revised that number to 26,000. ACS explains that its initial calculation was based on CAM v4.1.1 and the revision was due to a recalculation using newer data from CAM v4.2, which excluded locations served by subsidized competitors. ACS then adjusted its initial estimate to exclude the off-road census blocks in the Alaskan Bush that ACS does not propose to serve with broadband at this time.

    23. While ACS proposes to establish a deployment obligation with a minimum number of locations, it does not provide a specific list of proposed census blocks or locations at this time. Instead, ACS suggests that two years will be necessary for planning, coordination and identifying the total number and precise locations for buildout. ACS claims that it needs this time to “fully explore the most efficient options for network infrastructure deployment.” Once the pre-planning and coordination stage is completed, ACS intends to submit a list to the Commission of its proposed locations.

    24. Based on our review of June 2015 FCC Form 477 data for the number of high-cost locations, the Commission finds that requiring ACS to serve 31,571 locations is reasonable, given the other flexibility provided in this Order. While the Commission hopes that ACS will find after it engages in this planning process that it is possible to offer broadband services to more than 31,571 locations with the amount of funding provided, the Commission adopts this number as a strict minimum. Additionally, while ACS has proposed to select these locations using coverage data from the 2014 National Broadband Map, the Commission instead requires ACS to select its locations in blocks not served by a qualifying competitor using the June 2015 FCC Form 477 data. The Commission also adopts a challenge process for locations in blocks where another provider is reporting service, and for those blocks it requires ACS to utilize more recent publicly available data. This will ensure that support is targeted appropriately to those areas where there are no other providers offering broadband service meeting the Commission's requirements for high-cost support.

    25. Consistent with the approach taken with respect to other price cap carriers, the Commission does not dictate which specific locations ACS must serve within its eligible areas, so long as it provides voice and broadband service meeting the obligations described in this Order to the minimum number of required locations, subject to the specific parameters adopted below. The Commission emphasizes, however, that it will hold ACS to its commitment to continue providing voice service throughout the Phase II term of support to all locations where it currently provides voice service, including those in the Alaskan Bush.

    26. Partially-served Census Blocks. In satisfaction of its Phase II deployment obligations, the Commission will allow ACS the flexibility to deploy to up to 7,900 locations unserved by any provider within census blocks that also have locations served by an unsubsidized competitor, which the Commission refers to as “partially served census blocks,” subject to the conditions described below.

    27. In the April 2014 Connect America FNPRM, the Commission proposed that non-contiguous carriers receiving frozen support not use such support in any areas where there is a terrestrial provider of fixed residential voice and broadband service that meets our Phase II performance requirements. However, the Commission also asked whether allowing substitution in partially-served census blocks could enable more effective network deployment and bring service to unserved consumers in those partially-served census blocks. In the December 2014 Connect America Order, the Commission declined to adopt the flexibility for non-contiguous carriers receiving frozen support to use support in any census block where there is a competitor providing service of 10/1 Mbps or greater to at least one location within the census block, and instead required them to relinquish the relevant Phase II frozen support for those areas. At the same time, the Commission acknowledged that all parties potentially interested in Connect America support have an interest in building economically efficient networks, which may not neatly align with census boundaries, and the Commission encouraged stakeholders to work together towards proposals that help ensure unserved consumers in partially served census blocks are not left behind.

    28. ACS requests the flexibility to substitute up to 25 percent of its eligible locations with unserved locations in partially-served census blocks. ACS explains these substitutions are necessary, because even though the census block is treated as served, due to the geography and topography of the census block, some specific locations within a census block are not in fact served by any carrier. Compared to other states, Alaska has relatively large census blocks. ACS argues it would be more logical and economically efficient for ACS to serve these “stranded” customer locations, because in many cases these locations are very near or contiguous to ACS service territory and are clearly not easily served by the competitor given the particular geography of the census block. ACS proposes a public challenge process to ensure the substituted locations are actually unserved. ACS promises the substitutions would be made conservatively and would be limited to unserved locations in eligible census blocks in outlying areas—primarily surrounding Fairbanks and on the Kenai Peninsula.

    29. In the USF/ICC Transformation Order, 76 FR 73830, November 29, 2011, the Commission decided to target Phase II support to those census blocks that are not served by an unsubsidized competitor. However, the Commission did not foreclose other ways of supporting high-cost locations within partially-served census blocks. Where, as here, there are physically isolated and distinct unserved locations within large census blocks, the Commission is willing to implement an approach that allows it to extend service to unserved consumers, while balancing our policy goal of not providing high-cost support to overbuild locations that are already served by another competitor. The Commission has recognized in other contexts that the fact a competitor reports service on FCC Form 477 does not mean it serves all of the locations within a census block. Therefore, the Commission finds that it is in the public interest to permit ACS to substitute unserved locations in partially-served census blocks for eligible model-based locations, because such locations may not otherwise receive service from ACS or a competitor. However, as suggested by ACS, the Commission limits ACS to no more than 7,900 unserved locations in partially-served census blocks. The Commission also requires ACS to certify that it does not itself serve the locations in such blocks at the time it submits its list, no later than October 1, 2018.

    30. Challenge Process. The Commission will conduct a challenge process to ensure that all of the selected locations in partially served blocks in fact are unserved by any provider at 10/1 Mbps or better. The coverage data utilized in the cost model was State Broadband Initiative data as of June 2013. The Commission finds that it is in the public interest to ensure that the locations selected are unserved by any fixed, terrestrial competitors, including those that currently receive high-cost universal service support, before allowing ACS to build and deploy services to those locations. ACS suggested a format for conducting challenges for partially-served census blocks similar to the Phase II challenge process. The Commission concludes the process can be streamlined by using an approach similar to that previously adopted by the Commission for reporting changes to planned deployment for Phase I incremental support. Under this approach, the Commission requires ACS to submit its proposed list of geocoded locations in partially served census blocks as soon as possible, but no later than October 1, 2018, along with certification of notice filed on any carrier that reports service in the relevant census block according to the most recent FCC Form 477 data available at that time, the Regulatory Commission of Alaska, and any relevant Tribal government. To ensure that the public is aware of the proposed deployment plan, the Commission directs the Bureau to issue a public notice announcing the proposed deployment plan, census blocks and geocoded locations. This will give any existing provider the opportunity to notify ACS and the Commission that the provider already serves the identified census blocks and specific locations with service meeting the Commission's standards for an unsubsidized competitor, thereby furthering the Commission's objective of not supporting areas where there are competitors already offering service. The Commission concludes that it is reasonable and most efficient to provide potential existing providers 45 days from the release of the Bureau's public notice to file a response notifying ACS and the Commission that they are currently providing service meeting the requisite requirements to the locations selected by ACS. Any identified locations that receive no response will automatically be deemed eligible for deployment with Phase II frozen support. The Commission delegates to the Bureau the authority to implement this process consistent with prior delegations regarding other challenge processes.

    31. Non-High-Cost Census Blocks. The Commission adopts the additional flexibility for ACS to deploy to unserved locations within census blocks that were not identified as high-cost by the adopted version of the CAM, subject to the several limitations described below.

    32. ACS requests the flexibility to substitute up to 10 percent of its eligible locations with unserved locations in census blocks that were not deemed high-cost by the cost model. ACS argues that the cost model did not accurately capture all of the costs of serving particular census blocks in Alaska, and excluded unserved areas and customers that are truly rural and where the cost to deploy service is in-fact high. For example, ACS explains there are several instances where all the census blocks surrounding a location are identified as high-cost, i.e., eligible for support, but the middle “land locked” census block is not identified as such. ACS argues these census blocks are not served today, leaving hundreds of stranded customers without broadband service or the opportunity to be served in the future. ACS argues that it makes good policy and economic sense to let ACS deploy services to the unserved non-high-cost locations that can efficiently be reached during deployment to the eligible high-cost locations. ACS suggests a 10 percent cap on such substitutions.

    33. The Commission grants ACS the flexibility to count towards its service obligation up to 2,714 locations in census blocks identified by the model as low-cost, so long as those locations are unserved with broadband by either ACS or a competitor, and the “low-cost” census block is immediately adjacent to high-cost census blocks. The Commission finds that it is in the public interest to permit ACS to use its Phase II frozen support to deploy to these unserved locations given the unique geographic characteristics of Alaska. However, as suggested by ACS, the Commission finds a limitation is appropriate. The model calculates that there are 2,714 low-cost, unserved, on-road locations, using June 2015 FCC Form 477 data. As such, the Commission finds it is reasonable and in the public interest to limit ACS to no more than 2,714 location substitutions in such census blocks that are not identified as high-cost by the model. Further, for each location ACS substitutes under the terms of this flexibility, the Commission requires ACS to certify that deployment to that location was, in fact, high cost. Specifically, the Commission requires ACS to certify that the capital expenditures (capex) it incurs to build out to each location within a qualifying “low-cost” census block was at least $5,000. According to the model, the average capital expenditure for high-cost locations in Alaska is at least $5,007.95, so the Commission concludes that ACS should only be able to count towards its total these locations if they in fact require at least this amount of capex to newly serve the location. This certification will be due along with the annual location report. ACS may be required to produce documentation regarding its actual capex for such locations to support its certification when USAC validates completion of its deployment obligations or in the course of an audit. Any location that cannot meet this certification will not be counted toward the minimum location requirement.

    34. Forbearance. The Commission takes the opportunity today to adopt the same forbearance for ACS as it did for other price cap carriers in the December 2014 Connect America Order. As the Commission did in that order and for the same reasons, it now concludes that it is in the public interest to forbear, pursuant to section 10 of the Communications Act of 1934, as amended (the Act) from enforcing a federal high-cost requirement that ACS offer voice telephony service throughout its service territory pursuant to section 214(e)(1)(A) in three types of geographic areas: (1) Census blocks determined by the adopted cost model to be low-cost, (2) census blocks served by an unsubsidized competitor, to the extent ACS does not identify locations within partially-served census blocks to meet its deployment obligation, and (3) in census blocks where another ETC is receiving high-cost support to deploy modern networks capable of providing voice and broadband to fixed locations. ACS will be able to avail itself of this forbearance upon the conclusion of the Bureau's review of ACS's submitted locations, and finalization of the specific census blocks containing locations to be served.

    35. Phase I Obligations. ACS seeks clarification regarding the relationship between Phase I and Phase II obligations with regard to the issue of upgrading facilities. ACS asks whether it can use Phase II frozen support to upgrade locations built in Phase I that are currently served with 4/1 Mbps broadband, and are in census blocks eligible for support in Phase II. The Commission finds it is not in the public interest for ACS to use Phase II funding to upgrade Phase I locations. Consistent with Commission goals of universal service, the Commission finds it is an economically inefficient use of funds at this time to provide support to deploy service to a location and then provide support to upgrade that location while other locations remain unserved entirely. Instead, the Commission's goals are better served by reaching new customers that do not currently have any advanced communication. Therefore, the Commission concludes it is not in the public interest to allow ACS to use its Phase II frozen support funds to upgrade the existing Phase I locations served with 4/1 Mbps to 10/1 Mbps service.

    36. Timeline. ACS supports interim buildout milestones and requests a timeline that reflects its proposed ten-year term of support. As discussed above, ACS suggests that it needs two years to determine its broadband buildout plan before ACS can begin deployment. Accordingly, ACS suggests buildout milestones that are “backloaded” as compared with the model-based timeline—30 percent completion by year four, 60 percent completion by year seven, and full completion by year ten.

    37. Above the Commission adopted a 10-year term of support. The Commission also acknowledged the unique challenges that ACS confronts as a non-contiguous carrier building in Alaska. However, the Commission also wants to ensure that ACS begins construction no later than 2019. Accordingly, the Commission adopts a timeframe that requires ACS to complete its planning by October 1, 2018, with the remaining time to complete deployment of voice and broadband-capable networks. As such, the Commission will require ACS to complete initial planning and submit its proposed list of census blocks and locations to the Commission by October 1, 2018. Thereafter, as explained above, the Commission will conduct an efficient challenge process for those locations in partially served blocks to determine final deployment locations, which the Commission anticipates will be completed during first quarter 2019. ACS will then be able to commence deployment in those partially served census blocks no later than the summer of 2019. Full completion of the planning process is not a requisite, however, for it to begin deployment in the high-cost census blocks not subject to a challenge process. The Commission emphasizes that ACS is not precluded from, and indeed it is encouraged to begin, extending broadband to unserved locations in those high-cost blocks (the high-cost blocks lacking an unsubsidized competitor according to the June 2015 FCC Form 477 data).

    38. The Commission is not persuaded that ACS should only be subject to two intermediate milestones for the 10-year term. The Commission recently adopted evenly spaced interim deployment milestones for rate-of-return carriers electing to receive Phase II model-based support. For similar reasons, the Commission concludes here that annual interim milestones are appropriate for ACS. This will enable the Commission to monitor ACS' progress throughout the term of support. Accordingly, the Commission adopts the following timeline for offering broadband service meeting the Commission's requirements: 30 percent of all locations by the end of 2018, 40 percent by the end of 2019, 50 percent by the end of 2020, 60 percent by the end of 2021, 70 percent by the end of 2022, 80 percent by the end of 2023, 90 percent by the end of 2024, and all locations by the end of 2025.

    39. Standard for Meeting Deployment Obligation. ACS asks that it be allowed to serve between 95-100 percent of its minimum required number of locations, with a reduction in support for the locations not served if those locations are identified by a date certain in the planning process. ACS argues this flexibility is needed due to the inaccuracy of the cost model to determine proper high-cost census blocks in Alaska, and due to the lack of interest in building to these locations should ACS not deploy services there. ACS explains that while the substitution flexibilities will go a long way to correcting the alleged imprecisions of the cost model to provide service to those consumers that need it most, it simply is not enough flexibility.

    40. In the December 2014 Connect America Order, the Commission allowed price cap carriers the flexibility of deploying to between 95-100 percent of required locations subject to a required refund of support based on the number of required locations left unserved at the end of the support term. The Commission recognized that there may be a variety of unforeseen factors, after the initial planning stage, that can cause significant changes as a network is actually being deployed in the field. The Commission balanced our goal of advancing the availability of broadband to these high-cost locations with this flexibility and adopted a metric to recover support. This metric was based on the assumption that many of the locations left unserved would have higher than the average costs calculated by the model. In particular, the Commission calculated the factor based on the average support for the top five percent of the funded locations nationwide compared to the average support for all funded locations. The Commission then divided that nationwide figure by one-half, in recognition that the average could vary widely between carriers and states.

    41. Consistent with the general approach adopted for price cap carriers accepting model-based support in the December 2014 Connect America Order, the Commission accepts the ACS proposal and allow ACS the flexibility to build to between 95-100 percent of its minimum required locations, subject to the requirement to refund support based on the number of unserved locations as the end of the 10-year support term. Accordingly, the Commission establishes a similar metric for refunding support calculated specifically for Alaska. The average support for the top five percent of ACS high-cost locations is 8.2 times the average for all of ACS' funded high-cost locations. The Commission does not divide that figure in half, as this is an Alaska-specific and carrier-specific number. Therefore, should ACS fail to build to 100 percent of its required minimum locations at the end of its support term, the Commission will require ACS to refund a support amount based on the number of locations left unserved times $51,152—the average per-location Phase II frozen support ACS receives multiplied by 8.2.

    42. The Commission requires ACS to comply with our existing high-cost reporting and oversight mechanisms, unless otherwise modified as described below. In the April 2014 Connect America FNPRM, the Commission sought comment on how to monitor and enforce compliance by non-contiguous carriers receiving frozen support once the Commission determined their specific service obligations. The Commission asked about measures that must be in place to ensure that it has the ability to monitor compliance with these service obligations. The Commission asked whether there were considerations specific to non-contiguous areas that it should account for when determining whether these carriers have complied with their service obligations.

    43. Annual Reporting Requirements. Pursuant to section 54.313 of the Commission's rules, ACS must continue to file its FCC Form 481 on July 1 each year. ACS supports monitoring and enforcement measures and did not request accommodations with regard to compliance standards. Further, consistent with the relief granted to other price cap carriers in the 2016 Rate-of-Return Reform Order, 79 FR 24282, April 25, 2016, the Commission also eliminates the requirement that ACS file the five-year service quality improvement plan and annual updates, as it instead will be filing annual progress updates throughout the term. The Commission also adopts the same reporting obligation for ACS as required of the model-based price cap carriers to report the total amount of Connect America Phase II support, if any, it used for capital expenditures in the previous calendar year.

    44. Location Reporting Requirements. In the December 2014 Connect America Order, the Commission required all price cap carriers accepting model-based support to include in their annual reports a list of the geocoded locations to which they have newly deployed facilities using Connect America support in the prior year. The Commission also required those companies to report with their first list (i.e. the one due on July 1, 2016) geocoded locations where the carrier already was offering service meeting the Commission's requirements. The list must identify which locations are located in a Phase II-funded block and which locations are located in extremely high-cost census blocks. In the 2016 Rate-of-Return Reform Order, the Commission updated the Phase II location reporting obligations—moving this data collection out of the annual report and revising deadlines for submission. Specifically, instead of reporting geocoded location information in the annual report, due July 1 for the prior calendar year, the Commission concluded that it will serve the public interest for price cap carriers to report on deployment by March 1 every year with respect to the prior calendar year, rather than six months later. The Commission also required all rate-of-return ETCs to report annually to the Commission on the number of geocoded locations where they are offering 4/1 Mbps, 10/1 Mbps or 25/3 Mbps. The Commission directed the Bureau to work with USAC to develop an online portal that will enable all carriers to submit their geocoded information on a rolling basis throughout the year. Further, the Commission decided that price cap carriers will continue to make annual certifications that they are meeting their public interest obligations, but will do so when submitting the information to USAC by this deadline, rather than in their annual reports.

    45. Additionally, price cap ETCs' geolocation data and associated deployment certifications no longer be are provided pursuant to the deadlines specified in section 54.313. The penalties in section 54.313(j) for failure to timely file that information do not apply absent additional conforming modifications to our rules. Therefore, as is the case for rate-of-return ETCs, the penalties for price cap ETCs to fail to timely file geolocation data and associated deployment certifications are located in new section 54.316(c).

    46. The Commission adopts similar reporting obligations for ACS as a recipient of Phase II frozen high-cost support. ACS will be required to submit the requisite information to USAC no later than March 1 of each year, for locations where they offered service in the prior year. Similar to the rate-of-return carriers, ACS will be required to separately identify the number of locations where it is offering speeds of at least 10/1 Mbps or 25/3 Mbps. While ACS's deployment obligation is to offer at least 10/1 Mbps broadband to the requisite number of locations, depending on network design, some of those locations may receive better than 10/1 Mbps service, and the Commission sees value in tracking progress at the higher speed tier as well. As with other carriers subject to obligations to report their progress in broadband deployment, ACS is encouraged to submit information on a rolling basis throughout the year, as soon as service is offered, to avoid filing all of its locations at the deadline.

    47. Reductions in Support. Today, the Commission adopts specific defined deployment milestones for ACS. Based on the record before us, the Commission finds no reason to relax our compliance standards for ACS as a non-contiguous carrier electing frozen support. The table below summarizes the regime previously adopted by the Commission for non-compliance with defined deployment milestones.

    Non-Compliance Measures Compliance gap Non-Compliance measure 5% to less than 15% Quarterly reporting. 15% to less than 25% Quarterly reporting + withhold 15% of monthly support. 25% to less than 50% Quarterly reporting + withhold 25% of monthly support. 50% or more Quarterly reporting + withhold 50% of monthly support for six months; after six months withhold 100% of monthly support and recover percentage of support equal to compliance gap plus 10% of support disbursed to date.

    48. Appropriate Uses of Support. The Commission clarifies, at ACS's request, that ACS may use Phase II frozen support for middle mile costs and reasonable operation expenses, so long as it otherwise meets the obligations to offer service meeting the requirements of this Order to 31,571 locations. Recipients of model-determined support are free to use such support to defray the cost of middle mile transport necessary to deliver broadband service meeting the Commission's requirements to end-user customers. The Commission sees no reason to treat ACS differently because it is receiving Phase II frozen support as opposed to Phase II support calculated by the cost model.

    49. The Commission also finds that ACS's Phase II frozen support is sufficient to carry out its deployment obligations as well as maintain existing voice service in the high-cost and extremely high-cost census blocks in its territory, and the Commission clarifies that ACS may use its support for either such purpose.

    III. Procedural Matters

    50. This Order contains a modified information collection, which will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new information collection requirement contained in this Order. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, it previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission describes impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Supplemental Final Regulatory Flexibility Analysis (FRFA) below, infra.

    51. The Commission previously sent a copy of the December 2014 Connect America Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act and will supplement this filing with a copy of this Order.

    52. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analyses (IRFA) was incorporated in the Further Notice of Proposed Rulemaking adopted in November 2011 (USF/ICC Transformation FNPRM) and the Further Notice of Proposed Rulemaking adopted in April 2014 (April 2014 Connect America FNPRM) in this proceeding. The Commission included a Final Regulatory Flexibility Analysis (FRFA) in Appendix B of the December 2014 Connect America Order. This Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the FRFA to reflect the actions taken in this Order and conforms to the RFA.

    53. In this Order, the Commission adopts tailored public service obligations for Alaska Communications Systems (ACS), a price-cap carrier serving Alaska, to support the deployment of voice and broadband-capable networks in Alaska.

    54. In the USF/ICC Transformation Order, the Commission recognized that price cap carriers serving specific non-contiguous areas of the United States, including Alaska, face difference operating conditions and challenges from those faced by carriers in the contiguous 48 states. In April 2014, the Commission proposed to establish the same service obligations but sought comment the flexibility required for non-contiguous carriers to meet the standards. In December 2014, the Commission concluded tailored service obligations for each non-contiguous carrier was the best approach.

    55. In this Order, the Commission adopts targeted changes to the price cap model-based support public service obligations to accommodate the unique circumstances of ACS service in Alaska. Specifically, the Commission makes an adjustment to the term of support, establish a minimum number of locations where service must be offered, establish a planning phase deadline, adopt revised interim deployment milestones, and allow a limited number of location substitutions—allowing ACS to use its support to provide service in locations that are in partially-served census blocks and “high-cost” locations in “low-cost” census blocks. The Commission establishes a challenge process for determining the substitute locations in partially-served census blocks, and amend the location certification requirement to effectively monitor substitutions in “low-cost” census blocks. The Commission also forbears from the federal high-cost universal service obligation of ACS to offer voice service in low-cost areas where it does not receive high-cost support, in areas served by an unsubsidized competitor, and in areas where ACS is replaced by another eligible telecommunications carrier (ETC).

    56. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.

    57. As noted above, a FRFA was incorporated into the December 2014 Connect America Order. In that analysis, the Commission described in detail the small entities that might be significantly affected by the rules adopted in the Order. Those entities may be found in a number of services including, e.g.: wired telecommunications carriers, local exchange carriers, incumbent local exchange carriers, competitive local exchange carriers, interexchange carriers, local resellers, toll resellers, wireless telecommunications carriers, broadband personal communications service, advanced wireless services, satellite telecommunications, cable companies and systems, cable system operators, internet service providers, and all other information services. In this Order, the Commission hereby incorporates by reference the descriptions and estimates of the number of small entities from the previous FRFA in this proceeding.

    58. The rule changes in this Order will affect one entity, Alaska Communications Systems, which fits the descriptions of entities outlined in the FRFA.

    59. The data, information and document collection required by the December 2014 Connect America Order as described in the previous FRFA in this proceeding is hereby incorporated by reference. The actions taken in this Order amend the collection by altering the reporting milestones, adding one reporting requirement, and adding one certification requirement.

    60. In this Order, the Commission amends the reporting requirements by requiring ACS to file a report at the conclusion of its planning phase, and no later than October 1, 2018. This report will provide the Commission with a list of the proposed locations to which ACS intends to offer service over the 10-year support term.

    61. In this Order, the Commission amends the interim milestones reports to accommodate the extended term. ACS will be provided support for a 10-year term and will be required to offer voice and broadband service meeting certain latency, data usage, speed and reasonably comparable rate obligations to a certain number of locations. Accordingly, ACS will be required to report that it has built 30 percent of all locations by the end of 2018, 40 percent by the end of 2019, 50 percent by the end of 2020, 60 percent by the end of 2021, 70 percent by the end of 2022, 80 percent by the end of 2023, 90 percent by the end of 2024, and all locations by the end of 2025. Should ACS fail to meet these milestones, it will be subject to certain non-compliance measures, including support reductions and reporting.

    62. Lastly, in this Order, the Commission amends the collection to include a new cost certification requirement. In that certification, ACS must certify that the capital investment cost incurred to newly extend service to a location in a “low-cost” census block is at least $5,000. ACS may be required to maintain documentation regarding this certification. The Commission concludes that requiring this certification will ensure that the Commission can monitor compliance with the section 254(b) principle that “[c]onsumers in all regions of the Nation . . . including . . . those in . . . high cost areas, should have access to telecommunications and information services . . .”

    63. The analysis of the Commission's efforts to minimize the possible significant economic impact on small entities as described in the previous FRFA in this proceeding is hereby incorporated by reference. It is unchanged by this Order, save the addition of the reporting and certification obligations described above. This increased burden is outweighed by the importance of monitoring the use of the public's funds and ensuring support is used for its intended purpose.

    64. The Commission notes that the reporting and certification requirements it adopts for ACS are tailored to its unique circumstance. Additionally, the information that the Commission is requiring ACS report and certify is information it expects the company will already be tracking to ensure its system is built economically and effectively.

    65. People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    IV. Ordering Clauses

    66. Accordingly, it is ordered, pursuant to the authority contained in sections 1, 2, 4(i), 5, 10, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 405 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154(i), 155, 160, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, 405, 1302, and sections 1.1, 1.427, and 1.429 of the Commission's rules, 47 CFR 1.1, 1.427, and 1.429, that this Order, Is Adopted, effective thirty (30) days after publication of the text or summary thereof in the Federal Register, except for the certification in paragraph 33, which contains information collections subject to PRA review and Shall Become Effective immediately upon announcement in the Federal Register of OMB approval.

    67. It is further ordered that the Commission Shall Send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2016-28114 Filed 11-21-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 376 Lease and Interchange of Vehicles by Mexico-Domiciled Motor Carriers AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Notice on applicability.

    SUMMARY:

    Section 219(d) of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) restricted Mexico-domiciled motor carriers from leasing commercial motor vehicles (CMVs) to U.S. carriers to transport property into the United States until the international obligations under the North American Free Trade Agreement (NAFTA) chapter on cross-border trade in services were met. Given FMCSA's acceptance of applications for long-haul operating authority from Mexico-domiciled motor carriers following the conclusion of the U.S.-Mexico Cross Border Long-Haul Trucking Pilot Program, the obligations are fulfilled and the restriction is no longer applicable.

    DATES:

    Effective November 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Bryan Price, Chief, North American Borders Division, FMCSA, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone (202) 366-2995; email [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The Motor Carrier Safety Improvement Act of 1999 1 (MCSIA) created FMCSA and transferred authority for motor carrier safety from the Federal Highway Administration.

    1 Public Law 106-159, 113 Stat. 1748, 1768, December 9, 1999.

    Section 219(d) prohibited the leasing by a Mexico-domiciled motor carrier (lessor) of its equipment to a U.S. motor carrier (lessee) for operation beyond the commercial zones on the U.S.-Mexico border. This restriction specifically applied “Before the implementation of the land transportation provisions of NAFTA . . .” The second clause in section 219(d) further states that this prohibition exists “during any period in which a suspension, condition, restriction or limitation imposed under section 13902(c) of title 49 . . . applies to a [long-haul] motor carrier (as defined in section 13902(e)).” Section 13902(c) addresses “Restrictions on motor carriers domiciled in or owned or controlled by nationals of a contiguous foreign country.”

    Section 13902(c)(3) provides that only “The President” or his delegate may “remove or modify in whole or in part any action taken under paragraph (1)(A) if the President or such delegate determines that such removal or modification is consistent with the obligations of the United States under a trade agreement or with United States transportation policy.” In November 2002, President Bush issued a presidential memorandum lifting the moratorium on granting long-haul operating authority to qualified Mexico-domiciled motor carriers of property and of passengers.2 The only limitation that remained following this presidential action was the restriction on point-to-point transportation within the United States, which did not impact the NAFTA land transportation provisions.

    2 67 FR 71795 (November 27, 2002).

    In March 2002, FMCSA issued Interim Final Rules that fulfilled a Congressional mandate to ensure the safe operation of Mexican vehicles in the United States. Several organizations filed suit in the U.S. Court of Appeals for the Ninth Circuit challenging those rules. The Court set aside the rules, and the United States sought Supreme Court review of the decision. In 2004, the Supreme Court reversed the Ninth Circuit and upheld the Agency's Interim Final Rules (Department of Transportation, et al. v. Public Citizen, et al., 541 U.S. 752 (2004)).

    Congress, however, subsequently passed Section 6901 of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007,3 imposing further limitations on the Agency's ability to expend appropriated funds to issue operating authority to Mexico-domiciled motor carriers. The Agency was unable to process applications for long-haul operating authority from Mexico-domiciled motor carriers until a pilot program was completed pursuant to these new requirements.

    3 Public Law 110-28, 121 Stat. 112, 183, (May 25, 2007).

    From October 14, 2011, through October 10, 2014, FMCSA conducted a pilot program to determine the ability of Mexican motor carriers to operate safely in the United States. FMCSA delivered the requisite report to Congress in January, 2015. On January 15, 2015 (80 FR 2179), FMCSA announced that it would begin accepting and processing applications for long-haul operating authority from Mexico-domiciled property carriers under 49 U.S.C. 13902.

    Because Mexico-domiciled motor carriers may now apply for and receive long-haul operating authority, the land transportation provisions of NAFTA for property carriers have been implemented. Therefore, the previous leasing restrictions are not applicable, consistent with Section 219(d) of MCSIA.

    This notice is being issued to prevent inconsistent enforcement of a law that is no longer applicable. It also serves to inform all motor carriers and the general public that, in accordance with NAFTA and MCSIA, Mexican-domiciled motor carriers (lessors) are allowed to lease their equipment to U.S. motor carriers (lessees) regardless of the destination of the cargo, as long as the carriers meet the requirements of 49 CFR part 376. Included in part 376 are requirements that the “authorized carrier” (in this case, the U.S. motor carrier) assume “complete responsibility for the operation of the equipment for the duration of the lease” [49 CFR 376.12(c)]. These types of leasing arrangements are compliant with MCSIA and the Agency's regulations.

    Issued on: November 9, 2016. T.F. Scott Darling, III, Acting Administrator.
    [FR Doc. 2016-28018 Filed 11-21-16; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151130999-6225-01] RIN 0648-XF035 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer AGENCY:

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

    ACTION:

    Temporary rule; approval of quota transfer.

    SUMMARY:

    NMFS announces its approval of a transfer of 2016 commercial bluefish quota from the State of Maine to the State of Rhode Island. The approval of the transfer complies with the Atlantic Bluefish Fishery Management Plan quota transfer provision. This announcement also informs the public of the revised commercial quotas for Maine and Rhode Island.

    DATES:

    Effective November 21, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, (978) 281-9112.

    SUPPLEMENTARY INFORMATION:

    Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.

    The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan was published in the Federal Register on July 26, 2000 (65 FR 45844), and provided a mechanism for transferring bluefish quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can request approval of a transfer of bluefish commercial quota under § 648.162(e)(1)(i) through (iii). The Regional Administrator must first approve any such transfer based on the criteria in § 648.162(e).

    Maine and Rhode Island have requested the transfer of 32,000 pounds (lb) (14,515 kilogram (kg)) of bluefish commercial quota from Maine to Rhode Island. Both states have certified that the transfer meets all pertinent state requirements. This quota transfer was requested by Rhode Island to ensure that its 2016 quota would not be exceeded. The Regional Administrator has approved this quota transfer based on his determination that the criteria set forth in § 648.162(e)(1)(i) through (iii) have been met. The revised bluefish quotas for calendar year 2016 are: Maine, 655 lb (297 kg); and Rhode Island, 464,561 lb (210,721 kg). These quota adjustments revise the quotas specified in the final rule implementing the 2016-2018 Atlantic Bluefish Specifications published on August 4, 2016 (81 FR 51370), and reflect all subsequent commercial bluefish quota transfers completed to date. For information of previous transfers for fishing year 2016 visit: http://go.usa.gov/xZT8H.

    Classification

    This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 17, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28089 Filed 11-21-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 151023986-6763-02] RIN 0648-XE284 Pacific Island Pelagic Fisheries; 2016 Commonwealth of the Northern Mariana Islands Bigeye Tuna Fishery; Closure AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean because the fishery will reach the 2016 allocation limit for the Commonwealth of the Northern Mariana Islands (CNMI). This action is necessary to comply with regulations managing this fish stock.

    DATES:

    Effective 12:01 a.m. local time December 1, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ariel Jacobs, NMFS PIRO Sustainable Fisheries, 808-725-5182.

    SUPPLEMENTARY INFORMATION:

    On July 22, 2016, NMFS restricted the retention, transshipment and landing of bigeye tuna captured by longline gear in the western and central Pacific Ocean (WCPO) because the U.S. longline fishery reached 2016 U.S. bigeye tuna limit of 3,554 mt (81 FR 45982, July 15, 2016). Regulations at 50 CFR 300.224(d) provide an exception to this closure for bigeye tuna caught by U.S. longline vessels identified in a valid specified fishing agreement under 50 CFR 665.819(c). Further, 50 CFR 665.819(c)(9) authorized NMFS to attribute catches of bigeye tuna made by U.S. longline vessels identified in a valid specified fishing agreement to the U.S. territory to which the agreement applies.

    Effective on September 9, 2016, NMFS specified a 2016 catch limit of 2,000 mt of longline-caught bigeye tuna for the U.S. territories of American Samoa, Guam and the Commonwealth of the Northern Mariana Islands or CNMI (81 FR 63145, September 14, 2016). NMFS also authorized each territory to allocate up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP).

    On September 9, 2016, the Western Pacific Fishery Management Council, through its Executive Director, transmitted to NMFS a specified fishing agreement between the CNMI and Quota Management, Inc. (QMI) dated April 14, 2016. NMFS reviewed the agreement and determined that it was consistent with the requirements at 50 CFR 665.819, the FEP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws (81 FR 64356, September 20, 2016). The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, followed the procedures in 50 CFR 665.819—Territorial catch and fishing effort limits.

    In accordance with 50 CFR 300.224(d) and 50 CFR 665.819(c)(9), NMFS began attributing bigeye tuna caught in the WCPO by vessels identified in the CNMI/QMI agreement to the CNMI, beginning on September 9, 2016. NMFS monitored catches of longline-caught bigeye tuna by the CNMI longline fisheries, including catches made by U.S. longline vessels operating under the CNMI/QMI agreement. Based on this monitoring, NMFS forecasted that the CNMI territorial allocation limit of 1,000 mt will be reached by December 1, 2016, and is, as an accountability measure, prohibiting the catch and retention of longline-caught bigeye tuna by vessels in the CNMI/QMI agreement.

    Notice of Closure and Temporary Rule

    Effective 12:01 a.m. local time December 1, 2016, through December 31, 2016, NMFS closes the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean as a result of the fishery reaching the 2016 allocation limit of 1,000 mt for the CNMI.

    During the closure, a U.S. fishing vessel operating under the CNMI/QMI agreement may not retain on board, transship, or land bigeye tuna captured by longline gear in the WCPO, except that any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and landed, provided that they are landed within 14 days of the start of the closure; that is, by December 15, 2016. Additionally, U.S. fishing vessels operating under the CNMI/QMI agreement are also prohibited from transshipping bigeye tuna caught in the WCPO by longline gear to any vessel other than a U.S. fishing vessel with a valid permit issued under 50 CFR 660.707 or 665.801.

    During the closure, all other restrictions and requirements NMFS established on July 22, 2016, as a result of the U.S. longline fishery reaching the 2016 U.S. bigeye tuna limit of 3,554 mt (81 FR 45982, July 15, 2016) shall remain valid and effective.

    If, prior to December 1, 2016, NMFS receives a valid specified fishing agreement between a U.S. longline fishing vessel(s) and another U.S. territory, any vessel included in the CNMI/QMI agreement that is also included in the subsequent agreement may continue to transship, retain, and land bigeye tuna caught by longline gear in the WCPO. Additionally, if any such vessel is engaged in a longline fishing trip in the WCPO on December 1, 2016, that vessel would not need to return to port before December 15, 2016. NMFS would announce any valid specified fishing agreement in the Federal Register.

    Classification

    There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this action, because it would be impracticable and contrary to public interest, as discussed below. This rule closes the U.S. longline fishery for bigeye tuna in the WCPO as a result of reaching the bigeye tuna allocation limit established by the 2016 specification for catch and allocation limits of bigeye tuna for the CNMI, and the specified fishing agreement between the Government of the CNMI and QMI dated April 14, 2016.

    NMFS forecasted that the fishery would reach the 2016 CNMI allocation limit by December 1, 2016. Fishermen have been subject to longline bigeye tuna limits in the western and central Pacific since 2009. They have received ongoing, updated information about the 2016 catch and progress of the fishery in reaching the U.S. bigeye tuna limit via the NMFS Web site, social media, and other means. The publication timing of this rule, moreover, provides longline fishermen with seven days' advance notice of the closure date, and allows two weeks to return to port and land their catch of bigeye tuna. This action is intended to comply with regulations managing this stock, and, accordingly NMFS finds it impracticable and contrary to the public interest to have prior notice and public comment.

    For the reasons stated above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this temporary rule. NMFS must close the fishery to ensure that fishery does not exceed the allocation limit. NMFS implemented the catch and allocation limits for the CNMI consistent with management objectives to sustainable manage the bigeye tuna stock and restore the stock to levels capable of producing maximum sustainable yield on a continuing basis. Failure to close the fishery before the limit is reached would be inconsistent with bigeye tuna management objections and in violation of Federal law.

    This action is required by 50 CFR 665.819(d), and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 17, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28061 Filed 11-17-16; 11:15 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE958 Fisheries of the Exclusive Economic Zone Off Alaska; Inseason Adjustment to the 2016 Gulf of Alaska Pollock Seasonal Apportionments AGENCY:

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

    ACTION:

    Temporary rule; inseason adjustment.

    SUMMARY:

    NMFS is adjusting the 2016 D seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. This action is necessary to provide opportunity for harvest of the 2016 pollock TAC, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), November 17, 2016, until 2400 hours A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The annual pollock TACs in Statistical Areas 610, 620, and 630 of the GOA are apportioned among four seasons, in accordance with § 679.23(d)(2). Regulations at § 679.20(a)(5)(iv)(B) allow the underharvest of a seasonal apportionment to be added to subsequent seasonal apportionments, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal apportionment for a given statistical area. Therefore, NMFS is increasing the D season apportionment of pollock in Statistical Areas 620 and 630 of the GOA to reflect the underharvest of pollock in those areas during the B season. In addition, any underharvest remaining beyond 20 percent of the originally specified seasonal apportionment in a particular area may be further apportioned to other statistical areas. Therefore, NMFS also is increasing the D season apportionment of pollock to Statistical Areas 610 and 630 based on the underharvest of pollock in Statistical Areas 620 of the GOA. These adjustments are described below.

    The D seasonal apportionment of the 2016 pollock TAC in Statistical Area 610 of the GOA is 24,421 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the D season apportionment for Statistical Area 610 by 3,508 mt to account for both the Statistical Area 610 C season overharvest of 1,376 mt and the Statistical Areas 620 C season TAC underharvest. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 610. Therefore, the revised D seasonal apportionment of the pollock TAC in Statistical Area 610 is 27,929 mt (24,421 mt plus 3,508 mt).

    The D seasonal apportionment of the pollock TAC in Statistical Area 620 of the GOA is 15,402 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the D seasonal apportionment for Statistical Area 620 by 3,080 mt to account for the underharvest of the TAC in Statistical Areas 620 in the C season. This increase is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 620. Therefore, the revised D seasonal apportionment of the pollock TAC in Statistical Area 620 is 18,482 mt (15,402 mt plus 3,080 mt).

    The D seasonal apportionment of pollock TAC in Statistical Area 630 of the GOA is 19,822 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the D seasonal apportionment for Statistical Area 630 by 3,964 mt to account for the underharvest of the TAC in Statistical Areas 620 and 630 in the C season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised D seasonal apportionment of pollock TAC in Statistical Area 630 is 23,786 mt (19,822 mt plus 3,964 mt).

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would provide opportunity to harvest increased pollock seasonal apportionments. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 16, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 16, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28056 Filed 11-17-16; 11:15 am] BILLING CODE 3510-22-P
    81 225 Tuesday, November 22, 2016 Proposed Rules SMALL BUSINESS ADMINISTRATION 13 CFR Part 131 RIN 3245-AG02 Office of Women's Business Ownership: Women's Business Center Program AGENCY:

    Small Business Administration.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Small Business Administration (SBA) is seeking comments on this Notice of Proposed Rulemaking (NPRM) regarding the Women's Business Center (WBC) Program. An Advance Notice of Proposed Rulemaking (ANPRM) was published on April 22, 2015, which received eight comments. This NPRM is being issued to continue the consultative process with stakeholders to examine the proposed WBC regulations. This NPRM also proposes to codify policy and procedural changes that have been included in the Notice of Award, such as language on risk determination as required by, limitations on carryovers, who is considered key personnel and a reduction in the reporting requirements. Implementing these regulations will result in standardization and transparency to the delivery of the WBC Program.

    DATES:

    Comments must be received on or before January 23, 2017.

    ADDRESSES:

    You may submit comments, identified by RIN 3245-AG02, by one of the following methods:

    (1) Federal Rulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments;

    (2) Mail/Hand Delivery/Courier: U.S. Small Business Administration, Attn: Bruce Purdy, Deputy Assistant Administrator for the Office of Women's Business Ownership (DAA/OWBO), 409 3rd Street SW., Washington, DC 20416;

    (3) Facsimile: (202) 481-0554; or

    (4) Email: [email protected]

    The SBA will post all comments on www.regulations.gov. If you wish to submit confidential business information (CBI) as defined in the User Notice at www.regulations.gov, you must submit such information to the U.S. Small Business Administration, Attn: Bruce Purdy, Deputy Assistant Administrator for the Office of Women's Business Ownership (DAA/OWBO), 409 3rd Street SW., Washington, DC 20416, or via facsimile to (202) 481-0554, or submit them via email to [email protected] Highlight the information that you consider to be CBI and explain why you believe the SBA should hold this information as confidential. The SBA will review your information and determine whether it will make the information public.

    FOR FURTHER INFORMATION CONTACT:

    Sheila Williams, Lead Program Analyst, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416, telephone number (202) 205-7285 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background A. Statutory

    The Women's Business Center (WBC) Program was created under the authority of Title II of the Women's Business Ownership Act of 1988(Pub. L. 100-533). The WBC Program authority is now codified in section 29 of the Small Business Act (the Act), 15 U.S.C. 656. The initial Demonstration Training Program, later renamed the WBC Program, was created with the congressional intent to remove barriers to the creation and development of small businesses owned and controlled by women and to stimulate the economy by aiding and encouraging the growth and development of such businesses. The specific objectives of the Demonstration Training Program were to provide long-term Training and Counseling to potential and current women business owners, including those who are Socially and Economically Disadvantaged as defined in 13 CFR 124.103 and 124.104.

    Since its creation, the Women's Business Center Program has changed through a number of public laws that have turned the WBC Program from a Demonstration Training Program into a permanent program. The laws that have impacted the WBC Program include: The Women's Business Development Act of 1991 (Pub. L. 102-191); The Women's Business Centers Sustainability Act of 1999 (Pub. L. 106-165): U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 (Pub. L. 110-28); and, The Small Business Jobs Act of 2010 (Pub. L. 111-240).

    Section 29 of the Act, 15 U.S.C. 656, authorizes the SBA to provide financial assistance to private nonprofit organizations to conduct 5-year projects for the benefit of small business concerns owned and controlled by women. The Act further authorizes SBA to renew a grant for additional 3-year periods and provides that there are no limitations on the number of times a grant may be renewed.

    B. History

    On April 22, 2015, the SBA published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting comments on the interpretations of statutory language, including “distinct population that would otherwise not be served,” “whose services are targeted to women” and “full-time program director or program manager to manage the program” (80 FR 22434). The SBA also requested comments on how to define what is acceptable for activities that fall under “in-kind,” what guidelines grantees should use in determining reasonable costs associated with in-kind activities, acceptable guidelines for documenting in-kind match, selection criteria used in deciding whether to award an initial WBC grant, guidelines SBA should use in evaluating “the experience of the Applicant Organization” and “the proposed location for the women's business center,” and what an appropriate “minimum amount of time” would be to commence operating as a women's business center following receipt of an award. Comments from the ANPRM have been considered in the drafting of these proposed regulations.

    Currently, there are over 100 nonprofit entities that participate in the WBC Program and provide services as described in the Act. These participants are known as SBA Women's Business Centers (WBCs) and receive annual Federal funding limited by the authority of the Act and subject to the appropriations of Congress and the nonprofit's ability to provide the required Matching Funds.

    Through its authority, the SBA's Office of Women's Business Ownership oversees the WBC Program and the portfolio of WBCs that participate in the WBC Program. Since 1988, the number of participating WBCs has grown along with the number of women entrepreneurs assisted by these centers. The SBA has managed the performance and compliance of the WBCs through Cooperative Agreements with each individual nonprofit entity that hosts a WBC project, through regular reporting and programmatic and financial examinations of each WBC.

    II. Proposal

    The proposed rule would incorporate the SBA's oversight of the WBC Program into regulations in a new Part 131 of the SBA's regulations by: (A) Creating standard definitions for the program (13 CFR 131.110); (B) incorporating program-participation requirements and application procedures (13 CFR 131.300, 13 CFR 131.400); (C) incorporating financial-management and grant-administration requirements (13 CFR 131.500); (D) incorporating reporting requirements (13 CFR 131.600); (E) incorporating oversight and programmatic and financial-examination provisions (13 CFR 131.700 and 13 CFR 131.720); (F) incorporating procedures for Dispute resolution (13 CFR 131.840), and suspension, termination and non-renewal of a grant (13 CFR 131.830); and G) privacy requirements (13 CFR 131.900).

    III. Section-by-Section Analysis 131.100 Introduction

    The WBC Program was created under the authority of Title II of the Women's Business Ownership Act of 1988 (Pub. L. 100-533) to remove barriers to the creation and development of small businesses owned and controlled by women and to stimulate the economy by aiding and encouraging the growth and development of such businesses. Since its creation, the WBC Program has changed through a number of public laws that have turned the WBC Program from a Demonstration Training Program into a permanent program. The WBC Program has grown and evolved to provide a variety of services to many entrepreneurs, ranging from those interested in starting businesses to those looking to expand existing businesses.

    Over the last several years, the SBA has incorporated processes to monitor the WBC Program, including conducting financial examinations required by statute. The SBA proposes to implement this rule to incorporate its oversight of the WBC Program into regulations to ensure consistency in application and provide transparency for applicants and participants.

    131.110 Definitions

    This section defines 57 words and phrases used in the management and oversight of the WBC Program. These definitions have been consolidated from existing documents, including Program Announcements and Cooperative Agreements, to ensure consistency and clarity within the WBC Program.

    Through the ANPRM, commenters raised concerns on whether Distinct Populations were limited to Socially and Economically Disadvantaged populations. Under this proposed rule, definitions are provided for Distinct Population and Socially and Disadvantaged populations. Under the statute, 15 U.S.C. 656, a representative portion of clients should be Socially and or Economically Disadvantaged women. However, WBCs are expected to serve all women entrepreneurs and not just those that are Socially and Economically Disadvantaged.

    131.200 Eligible Entities

    This proposed section codifies the types of organizations that are eligible by statute to participate in the WBC Program and those organizations that are prohibited from participating in the program. Section 29 of the Act, 15 U.S.C. 656, identifies eligible entities as private nonprofit organizations that are described in section 501(c) of title 26 and exempt from taxation under section 501(a) of that title.

    131.300 Women's Business Centers (WBCs)

    This section describes how SBA proposes to provide financial assistance to private nonprofit organizations to conduct projects for the benefit of small business concerns owned and controlled by women, as authorized in 15 U.S.C. 656. In addition, under 15 U.S.C. 656(5), the SBA may renew a grant for an additional 3-year period, if the nonprofit organization submits an Application for such renewal at such time, in such manner, and accompanied by such information as the SBA establishes. This section describes the SBA's proposed process for renewal applicants to continue in the WBC Program.

    131.310 Operating Requirements

    This proposed section codifies the statutory requirement at 15 U.S.C. 656, on the process by which the SBA must issue Notices of Award, which outline the terms and conditions of the awards to the WBC Recipient Organizations. To ensure that the Recipient Organization maintains clear and separate functions from the WBC, as stated in the Cooperative Agreement, this rule proposes to require that the Recipient Organization manage the WBC Program as a separate entity within its organization, consistent with 2 CFR part 303, Internal Controls.

    Historically, Women's Business Centers that have established partnerships in the community in conjunction with an advisory board have had less difficulty working within the community and meeting the match requirements of the program. This section proposes to require that each WBC establish an advisory board that will confer with and provide recommendations to the WBC Program Director on matters pertaining to the operation of the WBC and assist the WBC in raising Matching Funds.

    This section also provides a proposed description of WBC facilities and administrative infrastructure requirements, including the requirement that the facility comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). These requirements serve to ensure that the WBC has the capacity to deliver the Counseling (including space to provide one-to-one Counseling that will ensure client privacy), Training and other services outlined in its statement of work.

    In the past, the SBA has found that some WBCs do not clearly reference that they are Women's Business Centers, with an emphasis on providing services to prospective or existing women entrepreneurs. Therefore, the SBA is proposing that any new WBC accepted into the WBC Program after the effective date of the rule be required to include the specific identification “WBC” as part of its official name. The SBA is further proposing that all other WBCs prominently include on their Web sites and promotional documents that the “Women's Business Center is funded in part by the U.S. Small Business Administration”. This transparency would ensure that WBCs are clearly discernable and are easily recognized by women attempting to contact organizations for business services focused on women.

    Historically, WBCs with insufficient staff have been identified as more likely to face difficulties in providing services at an adequate level as outlined in their statements of work. The SBA also has concerns related to the inability for a WBC to grow or expand services when the WBC is not properly staffed. To ensure maximum productivity of a WBC, this rule proposes to require that the WBC include at least a Full-time WBC Program Director and at least one other staff person, preferably a business counselor.

    131.320 Area of Service

    This section proposes to require WBCs to identify their geographic service area(s) as part of the application process. Currently, many WBCs do not clearly define their proposed geographic service areas; rather, they indicate that services will be provided for an entire state. Historically, this has caused some confusion, as some WBCs include service areas where an existing SBA-funded WBC is already providing services. This is especially true in states where there is more than one WBC and more than one Recipient Organization. Under this proposed rule, SBA plans to define, in writing, the geographic area for each Recipient Organization funded under the WBC Program. WBCs would also be required to submit a written request to change a geographic service area so as to ensure that no two WBCs are awarded WBC Project Funds to provide services in the same area while some areas remain underserved. To that end, this rule proposes that Applicant Organizations submitting new WBC projects within proximity of an existing WBC include a justification of need, including a discussion of the population density, submitted in its proposal. The SBA is seeking comment on how to best define proximity.

    131.330 WBC Services and Restrictions on Services

    This proposed section lists the required services that Women's Business Centers must provide to participate in the WBC Program. Consistent with the statute, 15 U.S.C. 656, the Office of Women's Business Ownership requires in its program announcement(s) that Women's Business Centers provide Training and Counseling services to women, as well as services that will assist their businesses in securing business credit and investment capital. In accordance with this requirement, WBCs assist women business owners in identifying available funds from lenders, the SBA and other resources. These resources include collaboration with state, local and federal government agencies and assisting its clients pursue designation as women-owned, small businesses. This section also names the proposed services that a WBC can provide to assist a women business owner access capital. To assist with delivery of its access to capital services, the WBCs rely on programs provided by other agencies. These programs include, but are not limited to, use of the FDIC Smart Money Curriculum, Census Bureau data tools, and the SBA's Microloan Program. Further, many of the WBC host organizations are microlenders and work with other lenders in the community.

    Historically, (see links below) men have started their businesses with significantly more capital than women, and women's access to capital remains an obstacle to women growing their businesses. This has been included in reports by the U.S. Department of Commerce and the National Women's Business Council included here. http://www.esa.doc.gov/sites/default/files/women-owned-businesses.pdf.

    https://www.sba.gov/sites/default/files/files/Gender%20Differences%20in%20Startup%20Financings.pdf. OWBO will monitor the WBCs support of capital access services through the review of WBC reporting, as described in Section 131.600 of this proposed rule. Under 15 U.S.C. 656 (B)(1), the SBA is authorized to provide financial assistance to private nonprofit organizations to conduct projects for the benefit of small-business concerns owned and controlled by women. The services provided under these projects can include Training and Counseling on how to apply for and secure business credit and investment capital, preparing and presenting financial statements, and managing cash flow and other financial operations of a business concern. Given this authorization, this rule proposes to require WBCs to provide specific services related to access to capital for women entrepreneurs as authorized in 15 U.S.C. 656. The SBA further proposes to provide guidance concerning the provision of access to capital services in this section.

    Given the SBA's involvement in disaster-relief assistance and the WBCs' participation in addressing the business needs in communities impacted by catastrophes, the SBA is also proposing to include a section on Specialized Services.

    131.340 Specific WBC Program Responsibilities

    This proposed section outlines the role of the Assistant Administrator/OWBO, as defined in 15 U.S.C. 656. This rule also proposes to explicitly define the roles of the WBC Program Director and Principal Investigator of the Recipient Organization. Additionally, under this proposed rule, the SBA clearly defines the tasks and responsibilities for the WBC Program Director, as the Full-time Key Employee for the WBC, as those completed solely for the WBC project.

    131.350 Selection and Retention of the WBC Program Director

    This section outlines the proposed competencies for the WBC Program Director, as well as the process the WBC must undertake if the position is vacant. The WBC Program Director, considered by the Agency as the key position for the WBC project, is responsible for managing the day-to-day operation of the WBC. Responsibilities related to the overall management of the WBC may include providing direct services (i.e., Counseling and Training), marketing the program and ensuring program compliance. To ensure effective management of the WBC project, this rule proposes core competencies for the WBC Program Director position and proposes rules for the Interim Program Directors when the Program Director position is vacant.

    131.400 Application Procedure

    This section outlines the proposed grant application submission process for new and existing WBC Applicant Organizations to participate in the WBC Program. It also identifies proposed general selection criteria. In the ANPRM, comments were received that suggest the SBA should not use geography to help determine the location of a WBC and that proximity to another WBC is not a disqualifier. The SBA follows statutory guidance that individual Applicant Organizations reach a Distinct Population that would not be otherwise served. The Agency proposes Applicant Organizations within proximity of an existing WBC provide a justification for the need of an additional WBC within that area including information about the population density. This helps to ensure that the WBC Program is serving the maximum number of clients with as much coverage as possible, while meeting the statutory requirement of reaching a Distinct Population that would otherwise not be served. This section also outlines the proposed criteria that SBA will use to determine a WBC's level of risk, consistent with 2 CFR part 200, subpart C.

    131.410 New Applications

    This proposed section codifies the Agency's statutory authority at 15 U.S.C. 656 (B)(1), to use unawarded amounts to fund new Women's Business Centers. This section outlines the process proposed by the SBA to fund new WBCs.

    131.420 Renewal Applications

    This proposed section proposes to codify the Agency's statutory authority at U.S.C. Code 656 (2), to fund organizations seeking the renewal of grant awards under the WBC Program. This proposed rule also lists the application criteria and process for existing participants requesting to renew a grant award under the WBC Program.

    131.430 Application Decisions

    This section outlines the proposed conditions for approval or rejection of an Application for the WBC Program, as authorized by 15 U.S.C. 656 (3)(C). This section also proposes the appeal process WBCs can complete if a renewal application is rejected, as outlined in Section 131.840.

    131.500 Grant Administration and Cost Principles

    This proposed section codifies the Agency's statutory authority at 15 U.S.C. 656 to fund projects following grant administration guidance under 2 CFR part 200—Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards.

    131.510 Maximum Grant

    This proposed section codifies the Agency's statutory requirement that no individual WBC project receive funds in excess of the amount authorized by statute. This rule proposes to include this section to clarify that while an individual WBC project cannot exceed the statutory limit, a Recipient Organization is not limited from establishing multiple WBC projects so long as the projects are distinct from each other and are serving Distinct Populations that would not otherwise be served. A Recipient Organization seeking additional funding for a new project shall follow the Application process, as defined in section 131.400 of this proposed rule for new Applications.

    131.520 Carryover of Federal Funds

    This proposed section outlines the requirements for the use of Carryover Funds and proposes to limit the number of Carryovers to prevent a WBC from creating a cycle of dependency on Carryover funding. Historically, a significant number of WBCs have consistently requested Carryover of funds. A Carryover of funds generally occurs when a WBC does not fully spend the Federal funds or the Matching Funds as requested and approved in the WBC's budget. This Carryover results in a Recipient Organization having both the Carryover Funds and Option Year funding running concurrently, both of which require Matching Funds. When the Carryover is granted, the Recipient Organization has the responsibility of raising Matching Funds for the Carryover Funds, if not already matched, as well as Option Year funding. This often creates a cycle in which the Recipient Organization will match and spend the Carryover funding, but is then not able to spend the current year funding, thus creating a situation where it must request Carryover funding the following year. While there is never a penalty to requesting less funding, Carryover funding represents an underutilization of the Federal funds provided. The rule proposes to limit Carryover of Federal funds to those WBCs in the first or second year of an initial phase grant.

    WBCs in an initial phase of funding may have fewer expenses in the first year as the WBC is establishing itself. However, the WBCs may need additional resources as the programming offered grows. Permitting new WBCs the flexibility to carry over funds during the first two years of participating in the WBC Program ensures that the SBA is utilizing WBC funding efficiently. If a WBC in the initial phase requests a Carryover for both of the first two years, SBA proposes to reduce the funding in the third year by the amount of the second year Carryover to eliminate the cycle of Carryover funding.

    131.530 Matching Funds

    This proposed section codifies the statutory requirement at 15 U.S.C. 656 for a Recipient Organization to provide Matching Funds equal to half of the Federal amount of the SBA funding for the first two years of its initial award. For the remainder of the time the Recipient Organization participates in the WBC Program, it must provide match of one dollar for every one Federal dollar of its annual Federal award amount, as prescribed in the statute, 15 U.S.C. 656. This rule proposes language which clarifies the process of documenting the match funds and also identifies types of funding that cannot be used as match, such as other Federal funding.

    Section 200.306 of Title 2 requires any funds used to match the Federal grant, to be verifiable from the Non-Federal Entity's records. The WBC Program requires a 1 to 1 match for WBCs that have been in the WBC Program for more than two years. A 2 to 1 match (for every two dollars of Federal funds used, 1 dollar of Matching Funds) is required for WBCs in the first two years of the WBC Program). In other words, the statute requires a 2:1 (Federal to non-Federal dollars) match for the first year; 2:1 match for the second year; 1:1 match for the third year; 1:1 match for the fourth year; and a 1:1 match for the fifth year. WBCs can provide Overmatch if they choose to do so; however, if they have used Federal funds to raise match above the required amount, these funds must be used to meet the Federal objective of the WBC Program and must be verifiable. This does not prohibit the Recipient Organization from raising funds separate and apart from the WBC Program. Those funds that are not used as match and are not raised with WBC funds are not subject to the same recordkeeping requirements, as they are not tied to the WBC Program.

    131.540 Program Income and Fees

    Consistent with 2 CFR 200.307, Recipient Organizations are allowed to charge clients fees for WBC Program services and use the income to defray the costs of delivering the objectives of the grant. This rule proposes to codify that WBCs may charge fees for services provided to their clients. This rule also proposes to identify the type of activities for which the WBC can charge fees and allows WBCs to use the fee income to be counted towards the cash portion of Matching Funds required under section 131.530 of this proposed rule. Historically, WBCs have often collected fees for Training classes to cover the cost of materials and supplies affiliated with providing a Training session or fees when helping clients complete a loan package. Some WBCs have also used a membership model that includes fees. Over the past several years, many WBCs have been exploring ways to charge fees for Counseling in order to ensure that clients commit to participation for a Counseling session. This rule proposes to allow WBCs to charge a retainer fee for Counseling services; however, such fees must not restrict access to any services for economically disadvantaged entrepreneurs.

    131.550 Budget Justification

    Consistent with 2 CFR part 200, subpart E, Recipient Organizations must follow the cost principles when completing and submitting a budget along with an Application or Annual Work Plan. The budget must include justification for the expenses. This section clarifies several specific cost categories, including Indirect Cost rates and audit expenses. This rule proposes to include guidance on salaries and travel. Under the cost principle section, all costs must be reasonable. Salaries vary by state and region and position. Using a reasonableness standard, SBA proposes that salaries for WBC staff be comparable to similar positions within similarly sized programs in other states or regions. For travel, reasonableness should be justified in terms of the benefit to the small business community that the WBC is serving. The proposed requirements are consistent with standard cost principles and serve to provide clarity to the Applicant or Recipient Organization. See § 131.600 Reports for details.

    131.560 Restricted and Prohibited Costs

    Consistent with 2 CFR part 200, subpart E, Recipient Organizations must not use Federal funds or Matching Funds to pay for certain items that are prohibited. This rule proposes language that establishes what costs are considered prohibited. For example, there have been instances in which WBCs have requested the use of WBC Project Funds as collateral for loans. Because this would bind the Federal dollars for a purpose other than delivering the WBC project, the viability of the WBC could be jeopardized. Recipient Organizations have also inquired about using Project Funds to purchase items that could be viewed either as promotional materials, marketing materials, or gifts. Although marketing/advertising the WBC Program is considered an allowable cost under 2 CFR 200.421, certain types of materials are considered gifts for individual use and are not broad-based marketing materials that will reach the population that the women's business center serves.

    131.570 Payments and Reimbursements

    This proposed section codifies the Agency's statutory authority at 15 U.S.C. 656, to provide payments in lump sum or installments, and in advance or by way of reimbursement to Recipient Organizations. The Agency may disburse up to 25 percent of each year's Federal share awarded to a recipient organization after the Notice of Award has been issued and before the non-Federal Matching Funds are obtained. This rule proposes payments be disbursed as quarterly advances for the first three quarters and on a reimbursement basis for the final quarter, except in cases where a Recipient Organization has not demonstrated its ability to obtain match or has not provided adequate information to demonstrate the use of the Project Funds. On a case-by-case basis, the Agency may determine that a Recipient Organization has not fully complied with the terms of the grant, in which case payments may be made by reimbursement.

    131.600 Reports

    This section proposes a list of the types of reports required to be submitted and the frequency of submission of the reports. This rule proposes using semi-annual reporting of programmatic and financial reports, and quarterly reporting of Counseling and Training data. In instances where the Agency may have reasons to believe that a Recipient Organization poses a higher risk of non-performance or non-compliance, the Agency will include any additional requirements to report quarterly in the annual Notice of Award. Consistent with 2 CFR part 200, subpart C, the Agency is required to assess the risk level of each WBC or WBC Applicant Organization prior to making an award. Section 131.400 of this rule proposes the risk assessment criteria the Agency will use for WBC awards. This rule also proposes to require Recipient Organizations to submit client activity reports, including Counseling and Training Records. These reports are submitted electronically and allow the Agency to monitor and report on WBC Program performance for each Recipient Organization and the WBC Program as a whole. The information also enables the Agency, in a streamlined process, to conduct detailed WBC Program evaluations, assess program management and performance, and conduct performance monitoring and program-outcome reporting. Performance reports should be consistent with the budget justification that is submitted as part of the application process or Annual Work Plan submission.

    131.700 Oversight of the WBC Program

    This proposed section codifies the statutory requirement at 15 U.S.C. 656 for the Agency to conduct annual programmatic and financial examinations of each WBC. Currently, to satisfy these requirements, the Agency utilizes reports submitted by the WBCs, reports submitted by the SBA District Office staff, programmatic site visits, and financial examinations. This combination of oversight allows the Agency to effectively monitor the WBC portfolio without requiring WBCs to submit all of the documentation for the program. Additionally, the Agency has also recently changed the frequency of the reporting schedule outlined in 131.600 to minimize the burden on WBCs that are effectively delivering the program.

    131.710 SBA Review Authority

    This section of the rule proposes how the SBA will monitor program performance consistent with 2 CFR 200.328.

    131.720 Audits, Examinations and Investigations

    This section proposes to require new Women's Business Centers participating in the Women's Business Center Program for the first time to have post-award financial examinations conducted by Agency staff or designee(s). Many new initial Recipient Organizations have never received Federal funds and may never have been required to meet Federal financial management standards. As part of the proposed post-award examination process, the examiner would determine the adequacy of the WBC's financial management system and make recommendations for improvement, if needed. The Agency anticipates that the examinations and recommendations will assist the WBC in avoiding financial findings and/or recoupment during future financial examinations or audits.

    In addition to the post-award examination, this section outlines the SBA's proposed requirement, consistent with the statute 15 U.S.C. 656, that all other WBCs receive comprehensive financial examinations, as scheduled by the SBA's Financial Examination Unit. The proposed process for complying with this requirement is outlined in this section.

    131.800 Cooperative Agreements and Contracts

    This proposed section codifies the statutory requirement at 15 U.S.C. 656 for the Agency to provide financial assistance to Recipient Organizations in the form of grants, contract, or Cooperative Agreement. Currently, a Cooperative Agreement serves as the vehicle to provide the financial assistance to the Recipient Organization to establish and maintain a WBC. The Cooperative Agreement is signed annually and contains the amount of Federal funding, a negotiated budget and agreed-upon performance milestones. The Cooperative Agreement contains the terms and conditions of the award and identifies any special considerations, including the annual determination of risk level. This rule proposes to require SBA District Offices to negotiate the annual performance goals with each Recipient Organization. SBA District Offices have a better understanding of local and regional economic conditions and the needs of women entrepreneurs, and can therefore make a better informed determination of the appropriate performance milestones with Recipient Organizations in their respective districts. In addition, this section proposes specific requirements when WBCs use Federal funds to contract for goods and services. This is to ensure WBCs do not supersede the contracting limits and thereby, in effect, change the grant to a pass-through grant.

    It is the Agency's policy that contracting out more than 49 percent of a grant (except in certain circumstances) constitutes a subgrant. Consistent with this policy, this rule proposes that the WBC not expend more than 49 percent of its total Project Funds on contractors and consultants.

    131.810 Other Federal Grants

    This proposed section codifies the statutory requirement at 15 U.S.C. 656(d) to allow a WBC to enter into a contract with other Federal departments or agencies to provide specific assistance to women entrepreneurs. With the exception of Community Development Block Grants (CBDG), grants received from other Federal entities may not be used as Matching Funds for the WBC grant. CDBG statutory language allows CDBG funds to be used as Matching Funds to other Federal programs. The CDBG regulations at 24 CFR 570.201(g) further elaborate on this eligibility criterion. On occasion, the Agency may provide additional assistance to a WBC through programs such as the Recovery Improvements for Small Entities (RISE) After Disaster Act. These funds are separate from the regular WBC grants but are provided to WBCs to spur disaster recovery.

    131.820 Revisions and Amendments to Cooperative Agreements

    Consistent with 2 CFR part 200, subpart D, Post Federal Award Requirements, Recipient Organizations are required to report deviations from budget or project scope or objective, and request Prior Approvals from Federal awarding agencies for budget and WBC Program plan revisions. This proposed rule outlines the common revisions that require Prior Approval by the Agency. These include changes in the staffing of the WBC Program Director, changes in project scope, program activity or location that could potentially alter the negotiated milestones in the Cooperative Agreement.

    131.830 Suspension, Termination and Non-Renewal

    Consistent with 2 CFR 200.338, the Agency may take action to suspend, terminate or non-renew a grant to a Recipient Organization for cause. This rule proposes the instances for which the Agency may take action, identifies the administrative procedures for each action, and outlines the appeal rights for each action. This rule also proposes the process that the SBA will take when an action is reversed.

    131.840 Dispute Resolution Procedures

    Consistent with 2 CFR 200.341, the Agency currently provides opportunity for Recipient Organizations to Dispute financial and programmatic decisions of the Office of Women's Business Ownership. This rule proposes to codify the current Dispute procedures to provide an opportunity for a Recipient Organization to submit a written statement describing the subject of a Dispute and to submit an appeal if the Recipient Organization receives an unfavorable decision from the Agency.

    131.850 Closeout Procedures

    Consistent with 2 CFR 200.343, this rule proposes to codify the current process by which the Agency would close out a Federal award if it is determined that all applicable administrative actions and all required work of the Federal award have been completed by the Recipient Organization. These actions help to ensure that the final proper payment can be made to the Recipient Organization after completing a reconciliation of all accounts, including an inventory of property and usable supplies, WBC Program Income balances, and client and financial records. After receiving the final annual financial report to ensure proper final payments, the Agency would issue a final letter indicating that all financial and WBC Program issues are fully reconciled.

    131.900 Ensuring Client Privacy

    SBA proposes to codify the legislative requirements for WBCs and the Administration to protect the privacy of any individual or small business receiving assistance in the Program. Under this proposed rule, in accordance with Section 21(a)(7) of the Act, a WBC, including its contractors and other agents, is not permitted to disclose to an entity outside the individual WBC, the name, address, or telephone number, referred to as `client contact data' of any individual or small business without the consent of such individual or small business with three exceptions.

    This rule proposes to require WBCs to provide an opportunity for clients to opt in to allow the SBA to obtain their contact data. The rule would codify how the SBA could use the permitted client contact data only to conduct studies that help stakeholders better understand how the services the client received affect their business outcomes over time. These studies would include, but not be limited to, program evaluation and performance management studies.

    In the past, SBA District Offices may have used client contact data to solicit loan applications. The functions and goals of the District Offices have changed over the years. Today this type of solicitation is not a function of SBA District Offices and has not been in recent years. The agency will not allow use of client contact data for any other purpose beyond program studies.

    This rule also proposes to prohibit the denial of services to clients solely based on a client's refusal to provide consent to use their contact data for study purposes. Section 21(a)(7)(C) of the Act directs the agency to publish standards for requiring disclosures of client information during a financial audit. This rule proposes to require other Federal or State agencies making such disclosure requests to submit formal requests including a justification for the need for individual client contact and/or program activity data for the Administrator's review on a case-by-case basis. Public comments on these proposed standards are encouraged.

    This rule also proposes to codify the current privacy protections in place in the Program currently employed by the agency. Under this proposed rule, any reports on the Program produced by a WBC, including its contractors and other agents, and the agency, cannot disclose individual client information without consent from the client. Any such reports must only report activity data in the aggregate, unless given consent, so as to protect the individual privacy of clients.

    IV. Comments Request

    Readers are encouraged to review closely each section of the proposed rule in conjunction with current regulations to fully comprehend the extent of the rule and its changes. The SBA invites comment on all aspects of this proposed rule, including the underlying policies. Submitted comments will be available to any person or entity upon request.

    Compliance With Executive Orders 12866, 13563, 12988, 13132, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Paperwork Reduction Act (44 U.S.C. Ch. 35) Executive Order 12866

    The Office of Management and Budget has determined that this proposed rule constitutes a “significant regulatory action” under Executive Order 12866. This is not a major rule, however, under the Congressional Review Act, 5 U.S.C. 800.

    Regulatory Impact Analysis 1. Is there a need for this regulatory action?

    The WBC Program was established in 1988 as a pilot program and became permanent in 2007. Regulations for the WBC Program had not been previously promulgated. The SBA has used the Program Announcement and Notice of Award to incorporate statutory requirements to implement the WBC Program. The annual Program Announcement and Notice of Award have become, for all practical purposes, documents which interpret the statute. The SBA believes it is past time for regulations outlining guidance for the policies and procedures for the WBC Program. This regulation incorporates the changes required by the OMB circular published by OMB and other program changes that have taken place since the WBC Program was initially established. Additionally, the Association of Women's Business Centers has supported implementing regulations to streamline and standardize processes.

    Further, the SBA received eight comments to the ANPRM that was published on April 22, 2015. All of the comments relevant to the WBC Program regulations were considered in the drafting of this proposed rule.

    2. What are the potential benefits and costs of this regulatory action?

    The WBC Program received $17 million in Federal funds which it provided to over 100 Women's Business Centers in fiscal year 2016. The Grantees are required to supply a 1-to-1 match of those funds, except in the first two initial years in the program for which the match is 2 to 1 (Federal to match). The benefit of this requirement is that the Grantee is invested as much as the Federal government in making the WBC Program a success. The small businesses benefit from the no-cost or low-cost Counseling and Training. Specifically, in 2015, the WBC Program counseled 20,473 entrepreneurs; trained 120,030 entrepreneurs, created 771 new businesses and raised $87,630,000 in capital infusion. Further, as stated above, the potential benefits of this proposed rule are based on incorporating all the changes that have occurred with the publication of 2 CFR part 200 and a streamlining of both the Program Announcement and the Notice of Award. The new regulations will provide additional clarification for the Program Announcement(s) issued by the Office of Women's Business Ownership.

    The costs to the SBA in making this revision are minimal, as most of the requirements of this rule are currently being followed. The estimated annual cost to the Federal government for oversight of these WBCs is currently provided for in the existing SBA infrastructure. Similarly, the costs to the grantees is also minimal as they, too, are following the requirements in this NPRM, which are currently included in their annual Cooperative Agreement. No additional direct costs are projected to be incurred by WBCs for oversight and related functions in this proposed rule.

    3. What alternatives have been considered?

    After publishing the ANPRM on April 22, 2015, and reviewing the comments submitted, the SBA believes that publishing regulations for the WBC Program would be the best way to create long-lasting consistency in the implementation of the WBC Program. Another alternative would be to do nothing and continue to rely on grant documents to implement the WBC Program. Furthermore, the statute requires SBA to publish regulations in general and specifically in regards to the Privacy Act Requirements of the WBC Program. The Privacy Act Requirements are included in this regulation to satisfy that requirement.

    Executive Order 13563

    The ANPRM was published on April 22, 2015, (Docket Number 2015-09391) and eight comments were received. The comments varied greatly from specific to general and covered a wide variety of topics, from providing clearer definitions to streamlining procedures and identifying actions requiring Prior Approval from the SBA. The SBA reviewed all the comments and took them under consideration when revising these proposed regulations. Further, SBA held monthly conference calls with the grantees, discussing various current topics which included the proposed regulations. Additionally, the Office of Women's Business Ownership staff attends the annual Women's Business Center training conferences that include discussions of policy, procedures and the proposed regulations. A summary and disposition of the comments includes, but is not limited to, the following: (1) Training should be ongoing for Women's Business Centers. The Office of Women's Business Ownership has initiated ongoing training for Women's Business Centers through its monthly conference calls and one-on-one teleconference calls, as requested; (2) The SBA should provide full funding to WBCs and not require fundraising. The funding levels and match requirements that are included are consistent with the statute, 15 U.S.C. 656; (3) The SBA data collection system must be upgraded. SBA is currently working to improve the system; (4) The regulation should provide a definition for Distinct Population. A definition is included in the proposed regulations; (5) Develop a repository of information that could be used by all of the WBCs, including templates, program updates and training materials. While, the Office of Women's Business Ownership did not include the requirement for a repository in these draft regulations, the office will work with women's organizations to develop information that will be available to all WBCs; 6) Provide a definition for in-kind services and do not limit the amount a volunteer can provide as in-kind activity. The draft regulations references 2 CFR 200.96 for the definition of in-kind. Also, the SBA does not limit the amount of In-kind Contributions from a service provider, but the amount of in-kind that can be used as match is limited and is consistent with the statute, 15 U.S.C. 656. Comments for the ANPRM can be located at: https://www.regulations.gov/docketBrowser?rpp=50&so=DESC&sb=postedDate&po=0&dct=PS&D=SBA-2015-0007.

    The SBA did not consult with any other agencies when drafting the proposed regulations as the Women's Business Center Program does not have any joint grants with other agencies.

    Executive Order 12988

    For the purposes of Executive Order 12988, Civil Justice Reform, the SBA has determined that this proposed rule is drafted, to the extent practicable, in accordance with the standards set forth in Sec. 3(a) and 3(b)(2), to minimize litigation, eliminate ambiguity and reduce burden. The proposed regulations would provide for rights of appeal to the SBA's WBC Program participants in the event they are aggrieved by an Agency decision, thereby limiting the possibility of litigation by these entities. This proposed rule would not have retroactive or pre-emptive effect.

    Executive Order 13132

    For the purposes of Executive Order 13132, the SBA determined that this rule has no federalism implications warranting preparation of a federalism assessment.

    Compliance With the Regulatory Flexibility Act, 5 U.S.C. 601-612

    When an agency promulgates a proposed rule, the Regulatory Flexibility Act requires the agency to prepare an initial regulatory flexibility analysis (IRFA), which describes the potential economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. This rule covers both the application process to become funded as a Women's Business Center and the on-going operations for currently funded WBCs. As the populations are different for the application process and the existing WBCs, the analysis is included for each.

    This proposed rule could theoretically affect all nonprofit entities as the statute requires that an entity be organized as a nonprofit in order to participate. According to the IRS, for tax year 2010, there are over 269,000 entities that filed returns as a 501(c)(3). The NAICs codes that are most relevant to participate in the program are 541611, Administrative Management and General Management Consulting Services and 541990, All Other Professional, Scientific and Technical Services. The size standard for both of these NAICs codes is $15 million in average annual receipts. According to the IRS, 92 percent of all 501(c)(3) filers had total revenue greater than $10 million. The majority of the 501(c)(3) entities would fall under the threshold as a small entity. In addition, as the application process is voluntary and does not require a nonprofit entity to apply, the vast majority of nonprofits would not be affected. Over the past 5 years, there were a total of 133 new applications submitted for the WBC Program—averaging 25-35 applications per year. The SF 424 (Application for Federal Assistance) on grants.gov does not include a field for revenue size. Based on the majority of the entities being small, SBA can presume that the majority of the Applicant Organizations are also small. It is projected that a grants writer would take approximately 20 hours to complete and submit the required application forms through grants.gov. For a grants writer at an average of $30-per hour, this would cost approximately $600. These estimates are based on the burden statements associated with the grants.gov application forms and anecdotal information from Applicant Organizations to the WBC Program. Therefore, the SBA has determined that the application section of the proposed rule would not have a significant impact on a substantial number of small entities.

    There are currently 114 entities that participate in the WBC Program, all of which are small entities. However, the SBA has determined that the impact on these entities affected by the proposed rule will not be significant. The proposed rule codifies current policies and procedures that are already achieved through a Cooperative Agreement with the SBA. It does not include new reporting requirements. Rather it standardizes existing policies to ensure transparency and consistency which in theory will reduce the cost to both the WBC participants and SBA. A WBC participating in the WBC Program submits a Federal Financial Report and attachments twice a year. The estimated burden for these reports is 2 hours twice a year. The annual submission of a work plan is substantially less than the Application and is only to update any changes from the initial Application. The estimate for these forms on an annual basis is a total of 14 hours. For a grants writer at $30 per hour, the annual estimated cost would be $420. Accordingly, the Administrator of the SBA hereby certifies that this proposed rule will not have a significant impact on a substantial number of small entities.

    Paperwork Reduction Act, 44 U.S.C. Ch. 35

    SBA has determined that this proposed rule would not impose additional reporting and recordkeeping requirements under the Paperwork Reduction Act (PRA), 44 U.S.C. Chapter 35. Currently, there are eight Paperwork Reduction Act submissions associated specifically with the WBC Program: (1) OMB control number 3245-0140 Notice of Award and Cooperative Agreement; (2) OMB control number 3245-0169, Federal Cash Transaction Report, Financial Status Report, Program Income Report, and Narrative Program Report; (3) OMB control number 3245-0324, EDMIS data collection (641 and 888 forms); (4) OMB control number 4040-0004, SF 424, Application for Financial Assistance; (5) OMB control number 4040-0006, SF 424A, Budget Summary for non-construction projects; (6) OMB control number 4040-0007, SF 424B, Assurances for non-construction projects; (7)OMB control number 4040-0013, SF-LLL, Disclosure of Lobbying Activities; and, (8) 4040-0014SF-425, Federal Financial Report. These reports will not change and no new reports are required in the proposed rule.

    List of Subjects in 13 CFR Part 131

    Entrepreneurship, Grant programs—business, Minority businesses—women, Reporting and recordkeeping requirements, Small businesses.

    For the reasons set forth above, SBA proposes to add 13 CFR part 131 as follows:

    PART 131—WOMEN'S BUSINESS CENTER PROGRAM Sec. 131.100 Introduction. 131.110 Definitions. 131.200 Eligible Entities. 131.300 Women's Business Centers (WBCs). 131.310 Operating Requirements. 131.320 Area of Service. 131.330 WBC Services and Restrictions on Service. 131.340 Specific WBC Program Responsibilities. 131.350 Selection and Retention of the WBC Program Director. 131.400 Application Procedures. 131.410 New Applications. 131.420 Renewal Applications. 131.430 Application Decisions. 131.500 Grant Administration and Cost Principles. 131.510 Maximum Grant. 131.520 Carryover of Federal Funds. 131.530 Matching Funds. 131.540 Program Income and Fees. 131.550 Budget Justification. 131.560 Restricted and Prohibited Costs. 131.570 Payments and Reimbursements. 131.600 Reports. 131.700 Oversight of the WBC Program. 131.710 SBA Review Authority. 131.720 Audits, Examinations and Investigations. 131.800 Cooperative Agreement and Contracts. 131.810 Other Federal Grants. 131.820 Revisions and Amendments to Cooperative Agreements. 131.830 Suspension, Termination and Non-renewal. 131.840 Dispute Procedures. 131.850 Closeout Procedures. 131.900 Ensuring Client Privacy. Authority:

    15 U.S.C. 656.

    § 131.100 Introduction.

    The Women's Business Centers (WBC) program has grown and evolved to provide a variety of services to many entrepreneurs ranging from those interested in starting businesses to those looking to expand existing businesses.

    SBA, through the Office of Women's Business Ownership (OWBO) is responsible for the general management and oversight of the Women's Business Center Program (WBC program). SBA issues an annual cooperative agreement to recipient organizations for the delivery of assistance to individuals and small businesses. The WBC program acts as a catalyst for providing in-depth, substantive outcome-oriented business services, including training, counseling, and other technical assistance, to women entrepreneurs, both nascent and established businesses, a representative number of whom are socially and economically disadvantaged. By providing a wide variety of training curriculum and counseling expertise through Women's Business Centers (WBCs), the SBA meets the needs of the individual client in the local marketplace.

    § 131.110 Definitions.

    Advisory board. A group established to confer with and provide recommendations to the Women's Business Center Program Director on matters pertaining to the operation of the WBC. The advisory board will also act as a catalyst to raise funds for the Women's Business Center.

    Applicant organization. An entity that applies for Federal financial assistance to establish, administer, and operate a WBC under a new or renewed cooperative agreement.

    Application (also known as the proposal). The written submission by a new applicant organization or an existing recipient organization describing its projected WBC activities for the upcoming budget period and requesting SBA funding for use in its operations.

    Annual work plan. See option year work plan and budget.

    Area of service. The State or Territory, or a regional portion of a State or U.S. Territory, in which SBA approves the WBC to provide services.

    Assistant Administrator of Office of Women's Business Ownership. (AA/OWBO) The AA/OWBO is statutorily responsible for management of the WBC program. The AA/OWBO may elect to designate staff to complete tasks assigned to the AA/OWBO position. When AA/OWBO is referenced, it includes the designee.

    Authorized official. A person who has the legal authority to sign for and/or speak on behalf of an organization.

    Budget period. The period of performance in which expenditures and obligations are incurred by a WBC, consistent with 2 CFR 200.77.

    Carryover funds (carryover). Unobligated Federal funds reallocated from one budget period to the next through an amendment to the current year's cooperative agreement.

    Cash match. Non-Federal funds specifically budgeted and expended by the recipient organization for the operation of a WBC project. Cash match must be in the form of cash and/or program income.

    Client. An entrepreneur or existing small business seeking services provided by the WBC.

    Conditional approval. May be granted when an application has been determined to meet eligibility requirements and has been recommended for funding, but may require special conditions, such as submitting required certifications, assurances or other documentation.

    Cognizant agency for audit. The Federal agency designated to carry out the responsibilities as described in 2 CFR 200.513(a) responsibilities.

    Cognizant agency for indirect costs. The Federal agency responsible for reviewing, negotiating, and approving cost allocation plans or indirect cost proposals developed under 2 CFR 200.19.

    Counseling record. A record that provides individual client contact information, demographics about the client/business and data on the counseling provided.

    Cooperative agreement (also known as notice of award). A legal instrument of financial assistance between the SBA and a recipient organization that is consistent with 31 U.S.C. 6302-6305 and provides for substantial involvement between SBA and the recipient organization in carrying out the proposed activities.

    Counseling. Services provided to an individual and/or small business owner that are substantive in nature and require assistance from a resource partner or SBA district office personnel in the formation, management, financing, and/or operation of a small business enterprise and are specific to the needs of the business or individual.

    Direct costs. Costs as defined in 2 CFR 200.413.

    Dispute. A programmatic or financial disagreement that the recipient organization requests be handled according to the dispute resolution procedures under § 131.840.

    Distinct population. A specific targeted group. For the purpose of the WBC program, the targeted group is women entrepreneurs.

    District office. The local SBA office charged, in collaboration with the WBCs, with meeting the needs of women entrepreneurs in the community.

    District office technical representative. An SBA employee located within an SBA district office and designated by the SBA to provide local oversight and monitoring of a particular WBC or WBCs.

    Financial examiner. An SBA employee, or designee, charged with conducting financial examinations.

    Full-time. An employee all of whose time and effort (minimum of 30 hours per week, as defined by the Internal Revenue Service, § 4980H(c)(4)) is allocated to the WBC project. An employee who is full-time under the WBC should not engage in activities that do not pertain to the WBC project.

    Grants and Cooperative Agreement Appeals Committee. The SBA committee, appointed by the SBA Administrator that resolves appeals arising from disputes between a recipient organization and the SBA.

    Grants management specialist. An SBA employee within Office of Women's Business Ownership responsible for the budgetary review and financial oversight of WBC agreements.

    Indirect costs. Costs as defined in 2 CFR 200.56.

    In-kind contributions (third party). Costs incurred as described in 2 CFR 200.96.

    Interim Program Director. An individual temporarily assigned by the recipient organization for no more than 60 days to fulfill the responsibilities of a vacant WBC Program Director position.

    Key personnel/key employee. For the purposes of the WBC program, the WBC Program Director is identified as the key employee.

    Loan packaging. Includes any activity done in support of a client or in preparation of the client's credit application to a lender for a loan, line of credit, or other financial instrument.

    Matching funds. For all Federal awards, any shared costs or matching funds and all contributions, as defined in 2 CFR 200.306.

    Microloan. A short-term, fixed-interest rate loan of not more than $50,000 made by an Intermediary to an eligible small business. The SBA manages a Microloan Program that focuses on reaching socially and economically disadvantaged entrepreneurs. See 13 CFR 120, Subpart G—Microloan Program.

    Non-federal entity. An organization, as defined in 2 CFR 200.

    Nonprofit organization. Any corporation, trust, association, cooperative, or other organization as defined in 2 CFR 200.70.

    Notice of award. See cooperative agreement.

    Option year. Additional 12-month budget period awarded after the first budget year (base year) as determined by the period of performance identified in the cooperative agreement.

    Option year work plan and budget. The written submission by an existing WBC applying for an additional year of grant funding. This submission is required to ensure the recipient organization's continued alignment with the WBC program and to update its description of projected WBC activities for the upcoming option year budget period.

    Overmatch. Any non-Federal contribution applied to the WBC award in excess of the minimum amount of match required. See § 131.530 for specific details on match requirements.

    Office of Women's Business Ownership Grants Management Officer. An SBA employee within the Office of Women's Business Ownership with authority delegated by the AA/Office of Women's Business Ownership, who meets Office of Management and Budget standards and certifications to obligate Federal funds by signing the notice of award.

    Office of Women's Business Ownership Program Manager. An SBA employee designated by the AA/OWBO who oversees and monitors WBC operations.

    Period of performance. The period of time as specified in 2 CFR 200.77.

    Principal investigator. The individual primarily responsible for achieving the technical success of the project, while also complying with the financial and administrative policies and regulations associated with the grant

    Prior approval. The written concurrence from the appropriate Office of Women's Business Ownership official for a proposed action or amendment to a WBC cooperative agreement. Specific guidelines governing the prior approval process, including the documentation required, are outlined in the cooperative agreement.

    Program announcement. The SBA's annual publication of requirements, to which an applicant organization must respond to in its new 5-year initial or 3-year renewal application.

    Program income. Gross income earned by the non-Federal entity, as described in 2 CFR 200.80.

    Project funds. All funds authorized under the cooperative agreement including, Federal funds and non-Federal cash, third-party in-kind contributions (third party) and program income, as well as the Federal funds and non-Federal match authorized or reported as carryover funds.

    Project period. The period of time specified in the notice of award, which identifies the start and end date of the recipient organization's 5-year or 3-year project.

    Recipient organization. The selected applicant organization that receives Federal funding to deliver WBC services under a cooperative agreement. By statute, only private, nonprofit organizations certified under § 501c of the Internal Revenue Code of 1986 can be recipient organizations.

    Socially and economically disadvantaged women. Women who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to their individual qualities. Also includes women whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business.

    Specialized services. WBC services other than basic counseling and training. The services can include, but are not limited to: assistance with disaster readiness; home-based businesses; agribusinesses; and construction, child care, elder care, manufacturing or procurement businesses.

    State or U.S. Territory. For the purpose of these regulations, State or U.S. Territory will mean the 50 United States, and the U.S. Territories of Guam, the U.S. Virgin Islands, American Samoa, the Northern Mariana Islands, the Commonwealth of Puerto Rico and the District of Columbia.

    Training. A qualified activity or event presented or cosponsored by a WBC, that delivers a structured program of knowledge, information or experience on an entrepreneurial or business-related subject.

    Training record. A record that provides aggregate data about a training event to include training topic, date, attendance, program format and evaluation of the training.

    Women's Business Centers. Women's Business Centers represent a national network of educational centers throughout the United States and its territories that assist women in starting and growing small businesses.

    WBC Program Director. An individual whose time and effort is allocated solely to the WBC program. The WBC Program Director position is the only positon that requires approval from the Office of Women's Business Ownership prior to hiring.

    Women-owned businesses. Business concern that is not less than 51 percent owned by 1 or more women and the management and daily operations are controlled by 1 or more women.

    § 131.200 Eligible Entities.

    (a) Eligible Organizations. By statute, only a nonprofit organization with active 501c certification from the United States Department of Treasury/Internal Revenue Service is eligible to apply for Federal funding to operate a WBC project.

    (b) Ineligible Organizations. Organizations ineligible to receive Federal funds to manage a WBC project include, but are not limited to the following:

    (1) Any organization that owes an outstanding and unresolved financial obligation to the Federal government;

    (2) Any organization, employee or principal investigator of an organization that is currently suspended, debarred or otherwise prohibited from receiving awards, contracts or grants from the Federal government;

    (3) Any organization with an outstanding and unresolved material deficiency reported under the requirements of the Single Audit Act within the past three years, consistent with 2 CFR 200.501;

    (4) Any organization that has had a grant or cooperative agreement involuntarily terminated or non-renewed by the SBA for cause;

    (5) Any organization that has filed for bankruptcy within the past five years;

    (6) Any organization that does not propose to hire and employ a full-time WBC Program Director whose time is solely dedicated to managing the day-to-day operation of the WBC and staff;

    (7) Any organization that proposes to serve as a pass-through and permit another organization to manage the day-to-day operations of the project;

    (8) Any organization that had an officer or agent acting on its behalf convicted of a felony criminal violation under any Federal law within the preceding 24 months; and,

    (9) Any other organization the SBA reasonably determines to be ineligible to receive Federal funds to manage a WBC project.

    § 131.300 Women's Business Centers (WBCs).

    Women's Business Centers (WBCs) are established under the statutory authority of the SBA through cooperative agreements with nonprofit recipient organizations. WBC program announcements and requests for work plans and budgets establish the operating and performance parameters, initiatives, and strategies for each project period.

    (a) Program Announcements. (1) The SBA will issue an annual program announcement each fiscal year to fund those recipient organizations already operating successful WBC projects. This program announcement will detail the goals, objectives and other terms and conditions for renewable projects entering a three-year program. The issuance of the program announcement is contingent upon SBA's approved budget and funding availability.

    (2) At any time during the current fiscal year, and based on the availability of funds, the SBA may, at its discretion, also issue a program announcement for the upcoming fiscal year, detailing the goals, objectives and other terms and conditions for new WBC projects. New WBC projects may be awarded a maximum of one base year and 4 additional option years of funding.

    (3) The SBA reserves the right to cancel a program announcement, in whole or in part, at the agency's discretion.

    (b) Option Year Work Plans and Budgets. (1) By April 30, of each year, the SBA will issue instructions for the submission of the option year work plan and budget for those WBCs currently in (and wishing to continue in) SBA's WBC program that will have successfully completed year 1, 2, 3, or 4 of an initial project, or year 1 or 2 of a renewal project by September 29th, In order to be considered for renewal, submissions for option year work plans and budget must be received in the Office of Women's Business Ownership by the timeline specified in the annual instructions for the submission of each work plan.

    (2) The SBA reserves the right to revise the submission requirements, in whole or in part, at the agency's discretion.

    (3) Awarding option year funding is at the sole discretion of the SBA and is subject to continuing program authority, the availability of funds and satisfactory performance by the recipient organization.

    (c) Cooperative Agreement. (1) The terms and conditions must include, but are not limited to, Office of Management and Budget guidelines for grant administration and cost principles, regulations and laws governing the WBC project and federally sponsored programs, and current-year guidelines from the program announcement.

    (2) The SBA will issue a notice of award annually to each eligible WBC participant, based on the acceptance of the annual proposal or work plan.

    (d) Negotiating the Cooperative Agreement. The WBC's participation in negotiations should include, but is not limited, to the following:

    (1) Collaborating with the local SBA district office to develop annual goals for the WBC project;

    (2) Receiving written concurrence from the SBA district office staff for inclusion in the application submission;

    (3) Developing data and analyses to design the WBC services needed by the small business community, with focus on women and women-owned businesses;

    (4) Proposing services and the appropriate structure to deliver those services to meet the needs of the small business community, specifically targeting women, including a representative number of women whom are socially and economically disadvantaged;

    (5) Ensuring that adequate technical and managerial resources are proposed for the WBC to achieve the performance goals and program objectives as set forth in the cooperative agreement.

    (e) Women's Business Center (WBC) Funds. Budgeted WBC funds (including match) must be used solely for the WBC project.

    § 131.310 Operating Requirements.

    (a) The recipient organization has the contractual responsibility for the duties of the WBC project, which must be a separate and distinct entity within the recipient organization, having its own budget, its own staff, and a full-time WBC Program Director.

    (b) The Women's Business Center must establish an advisory board that is representative of the community it will serve and that will confer with and provide recommendations to the WBC Program Director on matters pertaining to the operation of the WBC. The advisory board will also assist the WBC in meeting the match requirements of the program.

    (c) An employee who is full-time under the Women's Business Center program should not engage in activities that do not pertain to the WBC project. The WBC is not prohibited from operating other Federal programs that focus on women or other underserved small business concerns as long as doing so does not hinder the ability to deliver the services of the WBC program.

    (d) The WBC must have the facilities and administrative infrastructure sufficient to operate a center, including program development, program management, financial management, reports management, promotion and public relations, program assessment, program evaluation and internal quality control. The Women's Business Center must document annual financial and programmatic reviews and evaluations of its center(s) consistent with § 131.600(a).

    (e) Any new WBC that is accepted into the WBC program after the effective date of this rule must include the specific identification “Women's Business Center” as part of its official name. Any WBC that is applying for a renewal grant after the effective date of this rule must also include the specific identification “WBC” as part of its official name. Any existing WBC that does not include “Women's Business Center” in its name must include the following language prominently on their Web site and promotional documents: “The Women's Business Center is funded in part by the U.S. Small Business Administration.”

    (f) The WBC must maintain adequate staff to operate the WBC, including the WBC Program Director and at least one other person, preferably a business counselor.

    (g) The WBC must use an enforceable conflict-of-interest policy that is consistent with the requirements of 2 CFR 2701.112 and which is signed annually by each WBC employee, contractor, consultant and volunteer. The policy must be uniform among all employees, contractors, consultants and volunteers working for or with the WBC program.

    (h) The WBC must be open to the public a minimum of 40 hours a week (which must include evening and weekend hours) and meet other requirements as specified in the program announcement. Emergency closures must be reported to the district office technical representative and OWBO Program Manager as soon as is feasible.

    (i) The WBC will comply with 13 CFR parts 112, 113, 117, and 136 requiring that no person be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the WBC. However, all WBC marketing programs and services must target women.

    (j) The WBC project must not be listed in the organizational structure under any other federal grant.

    § 131.320 Area of Service.

    (a) Cooperative Agreement. The recipient organization will identify in its application the area of service for which it plans to provide assistance. Once approved, the AA/OWBO will define, in writing, the geographic area of service of each recipient organization. More than one recipient organization may be located in a State, Territory or other geographic area. Once the SBA has entered into a cooperative agreement with a recipient organization, the area of service cannot be changed without prior approval by the Office of Women's Business Ownership. A subsequent decision by the recipient organization to change the area of service in the cooperative agreement without prior approval by the SBA may constitute grounds for suspension, non-renewal and/or termination as set forth in § 131.830.

    (b) Location of WBC Projects. An organization responding to a program announcement within proximity of an existing WBC project shall provide in its written narrative a justification for placing another WBC in the proximity of an existing WBC, including the number of socially and economically disadvantaged persons within the proposed service area, census data, and population density. The information provided must clearly justify the necessity for an additional WBC project within the same area of service as the existing WBC project. SBA will take the narrative and any supporting documentation into consideration when reviewing, ranking and scoring the applicant organization's proposal.

    (c) Resources. An applicant organization's plan for the commitment and allocation of resources, including the site location where the WBC plans to provide services will be reviewed as part of the application review process for each budget period to ensure adequate coverage in the area of service.

    § 131.330 WBC Services and Restrictions on Services.

    (a) Services. The WBC must provide prospective entrepreneurs and existing small businesses, known as clients, with training, counseling, and specialized services. The services provided must relate to the formation, financing, management and operation of small business enterprises. The WBC must create and update counseling records to document each time that counseling is provided to a client. The WBC must provide services that meet local needs as determined through periodic needs assessments and that must be adjusted accordingly to keep pace with changing small business needs. Any changes to the scope of services provided during the budget period must be in accordance with § 131.820.

    (b) Access to Capital. (1) WBCs must provide training and counseling services that enhance a small business concern's ability to access capital, such as business plan development, financial statement preparation/analysis, and cash-flow preparation/analysis.

    (2) WBCs may provide loan packaging services and other services to WBC clients, and may charge a fee for such assistance. See § 131.540. Any fees so generated will constitute program income. The WBC must ensure that these services are not credited to both the WBC program and any other Federally-funded program, thereby double counting the efforts.

    (3) WBCs shall prepare their clients to represent themselves to lending institutions. WBC personnel may attend meetings with lenders to assist clients in preparing financial packages; however, neither WBC staff nor their agents may take a direct or indirect role in representing clients in any loan negotiations.

    (4) WBCs shall disclose to their clients that financial counseling assistance, including loan packaging, will not guarantee receipt or imply approval of a loan or loan guarantee.

    (5) WBCs must not intervene in loan decisions, service loans, make credit recommendations or influence decisions regarding the award of any loans or lines of credit on behalf of the WBC's clients unless the WBC operates as an SBA microlender and is awarding an individual or small business concern an SBA microloan.

    (6) When the recipient organization operates both a WBC and a separate loan program, the WBC must disclose to the client other financing options that may be available besides the one offered by the recipient organization to ensure that the client has the opportunity to seek financing outside of the recipient organization.

    (7) WBCs must disclose to loan packaging clients any financial relationships between the WBC and a lender or the sale of their credit products.

    (8) With respect to loan programs, allowable activities include: assisting clients in formulating a business plan, preparing financial statements, completing forms that are part of a loan application, and accompanying an applicant appearing before the SBA or other lenders. See paragraph (5) of this section for further limitations.

    (9) WBCs are to collaborate with state, local and federal government agencies to identify other resources that may be available to its clients and to facilitate interactions deriving from these collaborations.

    (c) Special Emphasis Initiatives. In addition to requiring WBCs to assist women entrepreneurs including a representative number of women who are socially and economically disadvantaged, the SBA may identify and include in the cooperative agreement other portions of the general population WBCs must target for assistance.

    § 131.340 Specific WBC Program Responsibilities.

    (a) Policy Development. The AA/OWBO will establish and modify WBC program policies and procedures to improve the delivery of services by WBCs to the small business community, and to enhance compliance with applicable laws, regulations, Office of Management and Budget guidelines and Executive Orders.

    (b) Program Administration. The AA/OWBO will recommend the annual program budget, establish appropriate funding levels in compliance with the statute and review the annual budgets submitted by each organization.

    (c) Responsibilities of WBC Program Director. (1) The WBC Program Director must be a full-time employee of the recipient organization and not a contractor, consultant or company. The WBC Program Director will direct and monitor all program activities and all financial affairs of the WBC to ensure effective delivery of services to the small business community and compliance with applicable laws, regulations, Office of Management and Budget circulars, Executive Orders, and the terms and conditions of the cooperative agreement.

    (2) The WBC Program Director must have the necessary authority from the recipient organization to control all WBC budgets and expenditures, as well as any hiring and staffing decisions required to meet the program objectives, under the cooperative agreement.

    (3) The WBC Program Director may not manage any other programs under the recipient organization.

    (4) The WBC Program Director will serve as the SBA's principal contact for all matters involving the WBC.

    (d) Principal Investigator. The principal investigator is primarily responsible for achieving the technical success of the project, while also complying with the financial and administrative policies and regulations associated with the grant. Although principal investigators may have administrative staff to assist them with the management of the project, the ultimate responsibility for the management of the project rests with the principal investigator. The principal investigator of a recipient organization could include the Executive Director, WBC Program Director, President/CEO, or other key position.

    § 131.350 Selection and Retention of the WBC Program Director.

    (a) General. (1) The WBC Program Director selected to manage the daily operations of the WBC shall possess core competencies in the areas of business and/or entrepreneurship training, project and/or small business management, effective communication, and collaboration skills.

    (2) The recipient organization must provide written notification to the local SBA district office and AA/OWBO within 10 business days following a vacancy in a WBC Program Director position. This position may not be vacant more than 30 calendar days a new WBC Program Director should be in place within 90 days of the vacancy. Hiring a new WBC Program Director prior approval from the SBA. See 2 CFR 200.308.

    (3) Within 30 days of the position becoming vacant, the recipient organization must appoint an Interim Program Director to serve during the period of the vacancy. The recipient organization must document the appointment of the Interim Program Director in accordance with its policies and procedures and the cooperative agreement.

    (4) The recipient organization must provide the name, qualifications and contact information for the Interim WBC Program Director to the SBA district office and the AA/OWBO within 10 days of the appointment.

    (5) An Interim Program Director must allocate his/her time and effort solely to the WBC program until a permanent WBC Program Director is in position.

    (6) If it is anticipated that the Interim Program Director will be in the position for more than 60 days, the recipient organization must submit a key personnel change request to the district office and the AA/OWBO for prior approval.

    (7) The recipient organization must submit a request for a key personnel change (including the resume of the candidate) to the local SBA district office within the timeframe specified in the notice of award prior to hiring a new WBC Program Director. This should be completed within the 90 days allotted to fill the vacancy. Failure to comply with this section may subject the recipient organization to corrective actions, restrictions, disallowances, suspension, revocation or termination proceedings.

    (b) SBA Involvement. (1) SBA employees may not recruit or hire the WBC Program Director; however; the AA/Office of Women's Business Ownership will review the key personnel change request submitted by the recipient organization and recommendation provided by the SBA district office technical representative to ensure that the candidate has the qualifications necessary to manage the day-to-day operations of the WBC. Prior to hiring a new WBC Program Director, the recipient organization must notify and provide the district office technical representative with a complete key personnel change request, including the credentials of the preferred candidate. The district office technical representative will evaluate the request to determine whether that individual meets the requirements necessary for the position and will then forward the request to the AA/OWBO with his/her concurrence or objection to the selection. If the district office technical representative objects to the selection of the WBC Program Director candidate, he/she must provide a written copy of the objection to the recipient organization and also to the AA/OWBO and OWBO Program Manager within 10 business days of receipt of the key personnel change request. The objection must set forth the relevant selection criteria that the district office technical representative believes the candidate fails to meet.

    (2) If the AA/OWBO upholds the district office technical representative's objection, he/she must send written justification for the decision to the recipient organization, district office technical representative and OWBO Program Manager. The recipient organization must then proceed to the selection of another candidate. If the AA/OWBO denies the objection, then the AA/OWBO must send written justification for the denial to the recipient organization, district office technical representative and OWBO Program Manager.

    (c) Recruitment Activity and Associated Costs. Allocable personnel compensation and benefits costs as provided in 2 CFR 200.463.

    § 131.400 Application Procedures.

    (a) Each applicant organization seeking a new or renewal grant is required to submit its application electronically to the SBA, via grants.gov, as designated in the program announcement.

    (b) The selection criteria for new or renewal grants will include, but is not limited to the following:

    (1) Expertise of the applicant organization to provide long-term and short-term training and counseling programs, and, most specifically, experience in providing targeted business development services to a distinct population; and,

    (2) The ability of the applicant organization to commence the WBC project within 90 days from execution of the cooperative agreement. All other specific criteria will be published in each program announcement issued by the SBA.

    (c) As required by 2 CFR 200.205(b), applicant organizations receiving acceptable scores will be further evaluated by OWBO to assess the possible risks they may pose. An assessment of the possible risks posed by an applicant organization will include, but is not limited to, the applicant organization's financial stability, management systems and ability to effectively implement statutory, regulatory and other requirements, as determined by the SBA.

    (d) Each WBC within its final option year period is required to submit an application consistent with the date and instructions listed in the program announcement.

    § 131.410 New Applications.

    (a) An application for initial funding must follow the format and requirements outlined in the program announcement and set forth in these regulations for initial funding.

    (b) All new awards will be made using an open and competitive process. After completion of the review process, the AA/OWBO will make a determination and notify the applicant organization of the final decision.

    § 131.420 Renewal Applications.

    (a) Women's Business Centers must comply with the requirements in the annual program announcement and set forth in these regulations to receive consideration of their three year renewal applications. WBCs must have successfully completed an initial five year period or a three year renewal period in order to receive funding under the program announcement. Recipient organizations that have not been renewed and recipient organizations that have been terminated or suspended are not eligible to apply for renewal funds. The recipient organization must submit the complete renewal application to the SBA through the grants.gov or other authorized electronic submission process specified in the program announcement.

    (b) Significant factors considered in the renewal application review will include, but shall not be limited to:

    (1) The applicant organization's continued ability to contribute matching funds;

    (2) The quality of prior performance under the cooperative agreement as determined by compliance with projects goals, and outputs/outcomes; and

    (3) The results of any examination conducted pursuant to § 131.710(b).

    (c) The SBA will review the renewal application for conformity with the program announcement. OWBO staff may request supplemental information and documentation prior to issuing the cooperative agreement.

    (d) If the SBA rejects renewal of an existing recipient organization (see due process procedures set forth in § 131.830) or the recipient organization elects not to reapply, the SBA may award the funds elsewhere, as the agency deems appropriate.

    § 131.430 Application Decisions.

    The AA/OWBO may approve, conditionally approve, or reject any initial or renewal Application.

    (a) Approval. Upon approval, the OWBO grants management specialist will issue a notice of award.

    (b) Conditional Approval. (1) If the AA/OWBO determines there is a reasonable basis to believe the applicant organization will take remedial action to correct any issues identified or respond to an enforcement action in a timely way, the AA/OWBO may conditionally approve an application. The conditions and applicable remedies will be specified as special terms and conditions in the cooperative agreement (notice of award). Upon conditional approval, the OWBO grants management specialist will issue a cooperative agreement.

    (2) In the event of a conditional approval, SBA may fund a recipient organization for one or more specified periods of time up to a maximum of 90 days.

    (c) Rejection. The AA/OWBO may reject any application for initial awards. For renewal awards, the AA/OWBO may reject any application after following due process procedures set forth in § 131.830.

    § 131.500 Grant Administration and Cost Principles.

    Upon approval of the WBC's initial or renewal application, the SBA will enter into a cooperative agreement with the recipient organization, setting forth the programmatic and fiscal responsibilities of the recipient organization and SBA, the scope of the project to be funded, and the budget for the period covered by the cooperative agreement. The WBC program adopts and implements Office of Management and Budget regulations as published and amended in 2 CFR part 200. Additional qualifications or clarifications may be promulgated through the program announcement, a revised notice of award or the regulatory process.

    § 131.510 Maximum Grant.

    No individual WBC project will receive a WBC grant, in any fiscal year under a cooperative agreement, in excess of the amount authorized by statute. While an individual WBC project cannot exceed the statutory limit, a recipient organization is not limited from establishing multiple WBC projects as long as the projects are distinct from each other and are serving distinct populations that would not otherwise be served.

    § 131.520 Carryover of Federal funds.

    Only a WBC in the first or second year of an initial phase project may request permission to carry over any unexpended funds remaining under its award.

    (a) Such a recipient organization may request that the SBA reauthorize any remaining unexpended and unobligated Federal funds from their cooperative agreement for use in the subsequent program year/period of performance. All carryover requests must be completed within 90 days after the end of the budget period identified in block 5 of the notice of award or page 2 of the modification of the award. The request must be submitted in writing to OWBO with the final semi-annual financial report and reimbursement request package. If the carryover request is not submitted within this timeframe, OWBO may elect to de-obligate all remaining Federal funds and the funds will no longer be available to the recipient organization.

    (b) The AA/OWBO will determine the funding priorities for the awarding of carryover funds. Notification of the approval of carryover funds will be provided in writing by modification to the award.

    (c) Carryover funds must be used in accordance with the approved option year work plan and budget. Furthermore, expenditures of carryover funds must not be commingled with current year WBC project funds or other non-WBC funds, and must be reported separately from the current year award.

    (d) Any organization that requests carryover funds for two consecutive budget periods will be subject to a reduction of the next budget period. The award amount for the next budget period available will be reduced by the average amount of the two consecutive carryover amounts.

    § 131.530 Matching Funds.

    (a) The recipient organization must provide matching funds equal to one-half of the Federal amount of SBA funding for the first two years of its initial award. For the remainder of the time the recipient organization is in the WBC program, it must provide matching funds of one dollar for every Federal dollar of their annual Federal award amount. The statutory match ratio is 2:1 (Federal to non-Federal) for the first and second years and 1:1 for the third, fourth, and fifth years. At least 50% of the matching funds must be in cash (the sum of cash and program income). The remaining 50 percent may be provided through allowable combinations of cash, In-kind contributions (third party), or authorized indirect costs.

    Once the cash match and total match requirements have been met, any additional matching funds are considered overmatch. WBCs may provide overmatch if they choose to do so; however, if they have used Federal funds to raise match above the required amount, these funds must only be used to meet the Federal objective of the WBC program and must be verifiable from the non-Federal entity's records. When applied to a WBC project through a budget proposal, all funds for use by the WBC for the budget period are subject to Federal rules and regulations, consistent with 2 CFR part 200. This does not prohibit WBC recipient organizations from raising funds separate and apart from the WBC program. Those funds that are not used as match and are not raised with WBC funds are not subject to the same recordkeeping requirements as they are not tied to the WBC Program.

    (b) If the recipient organization indicates difficultly in meeting the match requirement, it can request a reduction of the Federal award.

    (c) All sources of matching funds must be identified as specifically as possible with supporting documentation. Cash sources must be identified by name, amount, and account. Any additional requirements, specifications, or deliverables must be clearly identified in the budget narrative.

    (d) All applicant organizations must submit a certification of cash match and program income. This certification must be executed by an authorized official of the recipient organization and the WBC Program Director.

    (e) All matching funds, in addition to the Federal and program income funds, must be under the direct management of the WBC Program Director.

    (f) Program income generated by the WBC may be used as matching funds. All WBC program income must be accounted for within the WBC's semi-annual financial reports (unless otherwise specified in the cooperative agreement) and the WBC's general ledger as validation for the district office technical representative's mid-year and year-end review.

    (g) The Grants Management Specialist will determine whether matching funds and cash match set forth in the budget proposal are sufficient to recommend the proposal for funding.

    (h) When applied to a WBC project through a budget proposal, all funds for use by the WBC for the budget period are subject to Federal rules and regulations and must be used solely for the WBC project.

    (i) The following will not be considered as sources of matching funds for the WBC:

    (1) Uncompensated student labor;

    (2) SCORE, SBA, or other SBA resource partners;

    (3) Federal funds other than Community Development Block Grant (CDBG) funds. CDBG funds may be used to match WBC grants where the WBC project activities are consistent with the authorized CDBG activities, and are identified either in the consolidated plan of the CDBG grantee or in the agreement between the CDBG grantee and the WBC recipient of the funds;

    (4) Funds, in-kind contributions (third party), or indirect costs used as match for other programs, not solely dedicated to the WBC program, or under its control; and

    (5) Funds or other resources provided for an agreed upon scope of work inconsistent with the authorized activities of the WBC program.

    § 131.540 Program Income and Fees.

    (a) Program income, including any interest earned on program income, may only be used for authorized purposes and in accordance with the cooperative agreement. Program income may be used as matching funds and, when expended, is counted towards the cash match requirement of the award. Program income must be used to expand the quantity or quality of services, and for resources or outreach provided by the WBC project.

    (b) Unused program income may be carried over to the subsequent budget period by the WBC. The WBC must report the consolidated program income sources and uses.

    (c) A WBC may charge clients a reasonable fee for services, including items such as the costs of training and counseling provided by the WBC (sponsored or cosponsored), the sale of books, and the rental of equipment or space. Any fees so generated will constitute program income, and such fees must not restrict access to any services for economically disadvantaged entrepreneurs.

    § 131.550 Budget Justification.

    (a) General. The WBC Program Director or non-federal entity finance person will prepare and submit the budget justification for the upcoming program/budget period for review by the SBA as part of its application package pursuant to the applicable program announcement. Worksheets are provided by the Office of Women's Business Ownership for this purpose.

    (b) Audit Expenses. Audit expenses may not be charged to the grant as a direct (Federal or non-Federal) expense. Audit expenses may only be charged as an indirect expense. See 2 CFR 200.425.

    (c) Indirect Costs. If the budget includes indirect costs and the recipient organization has never had an approved indirect rate agreement issued by the cognizant agency for indirect costs, the recipient organization may utilize a de minimis rate of 10 percent of modified total direct cost (to include Federal and non-Federal) indefinitely or until the recipient organization chooses to negotiate for a rate, which it may apply to do at any time through its cognizant agency for audit. This rule does not apply to organizations that have an expired indirect cost rate agreement. See 2 CFR 200.414. If the Applicant or recipient organization waives all indirect costs, then 100 percent of the project funds must be allocated to program delivery. The recipient organization may then count any indirect costs to which it would otherwise have been entitled as matching contributions.

    (d) Option Year Work Plan and Budgets. (1) In Its proposal, the recipient organization will include its budget estimate of Federal funds needed for the balance of the project period using the SF-424A, Section E, as indicated by the specific program announcement.

    (e) Salaries. (1) Salaries for WBC Program Directors should be comparable with salaries paid to individuals in similar positions in other states or regions with similarly-sized programs, responsibilities, and authority.

    (2) Salaries for all other positions within the WBC should be based upon level of responsibility, and should be comparable to salaries for similar positions in the area served by the WBC.

    (f) Equipment. In accordance with SBA policy, expenditures for equipment are not a permitted expense under the WBC project. Equipment is defined as any item of valued at $5000 or more. See 2 CFR 200.33.

    (g) Travel. (1) All travel must be separately identified in the proposed budget under the following categories: planned travel within the area of service and planned travel outside of the area of service. Travel outside of the WBC area of service is considered a distance beyond 50 miles of the stated area of service proposed in the recipient organization's annual budget submission, as defined in 2 CFR 200.474.

    (2) Transportation costs must be justified in writing, including the estimated cost, purpose of travel, number of persons traveling, and the benefit to be derived by the small business community from the proposed travel.

    (3) A request to include any travel outside of the WBC's area of service that was not included in the approved budget must be submitted to SBA through the district office technical representative for OWBO prior approval on a case-by-case basis.

    § 131.560 Restricted and Prohibited Costs.

    SBA prohibitions are consistent with those set forth in 2 CFR part 200.

    (a) A WBC may not use project funds as collateral for a loan, assign an interest in them, or use them for any other such monetary purpose.

    Project funds found to be used in violation of these restrictions may be cause for termination, suspension, or non-renewal of the cooperative agreement.

    § 131.570 Payments and Reimbursements.

    (a) Advancement and reimbursement of Federal funds to WBCs from the SBA are accomplished electronically. Detailed instructions for the WBCs will be included in the annual cooperative agreement.

    (b) Advancement and reimbursement requests allow for quarterly draw down of funds required to meet the estimated or actual quarterly Federal share of WBC expenses.

    (c) For guidance regarding interest earned on advances of Federal funds, See 2 CFR 200.305 (b)(7) through (9).

    (d) If there is a determination that an overpayment of Federal funds to a WBC has been made, the overpayment amount will be due and payable to the agency within 30 days of written notice to the WBC.

    § 131.600 Reports.

    (a) General. The recipient organization will submit consolidated performance and financial reports for the WBC to the SBA for review. These reports will reflect actual WBC activity and accomplishments pertinent to the budget periods. Report formats and proper recipients will be specified in the annual program announcement and cooperative agreement.

    (b) Frequency.

    In each budget period and unless otherwise instructed in correspondence from the Office of Women's Business Ownership, the recipient organization of the WBC project must submit semi-annual programmatic and financial reports no later than 30 calendar days after each six-month reporting period, as specified in the program announcement.

    (c) Electronic Data Reports. Unless otherwise instructed in correspondence from the Office of Women's Business Ownership, and consistent with the notice of award, WBC Program Directors are responsible for reporting counseling and training records in the format and frequency designated in the program announcement. WBC Program Directors must ensure that the required data is submitted to SBA within the timeframe stipulated by the cooperative agreement and that the data is accurate and complete.

    (d) Performance Reports. (1) The semi-annual performance report shall address, in a brief narrative, the WBC's major activities and objectives achieved during the six-month period. The reports must include a discussion on the progress toward achieving those objectives submitted in its proposal.

    (2) The final performance report must also include a brief overall summary of effort expended to deliver the core services in the cooperative agreement for the full budget period. A discussion of performance measurements achieved as well as an explanation of those objectives or measurements not met should be included. The performance report should include a brief summary of the activities, events or achievements by reportable category with an accompanying management analysis.

    (e) Financial Reports. The recipient organization must provide all semi-annual financial reports to SBA as required by the program announcement, the cooperative agreement and in accordance with 2 CFR part 200. These reports must have the signatures of both the WBC Program Director and the recipient organization's financial representative. To ensure that expenditures are proper and in accordance with the terms and conditions of the notice of award and approved project budgets, final fiscal reports or requests for payment under the cooperative agreement must include the certification required by 2 CFR 200.415.

    § 131.700 Oversight of the WBC Program.

    (a) The AA/Office of Women's Business Ownership will monitor the WBC's performance and its ongoing operations under the cooperative agreement to determine if the WBC is making effective and efficient use of program funds, in compliance with applicable law and other requirements, for the benefit of the small business community.

    (b) The AA/Office of Women's Business Ownership may revoke delegated authority of oversight responsibilities at any time it is deemed necessary and will notify the recipient organization of such a change in a timely manner.

    § 131.710 SBA Review Authority.

    Site Reviews/Visits. The SBA district office, or a contractor on its behalf, will coordinate with, and provide written notice to the WBC Program Director that biannual periodic programmatic and financial reviews/visits to the recipient organization will be conducted. The SBA's district office personnel will inspect WBC records and client files to analyze and assess WBC activities, and, if necessary, to make recommendations for improved service delivery. In addition, the SBA Office of Women's Business Ownership, or a contractor on its behalf, may conduct periodic site reviews.

    § 131.720 Audits, Examinations and Investigations.

    (a) General Audits. The SBA may conduct WBC audits. (1) Audits of a recipient organization will be conducted pursuant to the Single Audit Act of 1984 (if applicable) and applicable Office of Management and Budget circulars.

    (2) The SBA Office of Inspector General or its agents may inspect, audit, investigate or otherwise review the WBC as the Inspector General deems appropriate.”

    (b) Financial Examinations. The WBC will have periodic financial examinations conducted by either the SBA or an independent contracted firm. WBCs, in accordance with the program announcement and the cooperative agreement, must comply with all requirements set forth for such purposes. (1) Post-Award Examination. Applicant organizations proposing to enter the WBC program for the first time shall be subject to a post-award examination or sufficiency review conducted by or coordinated with the SBA Financial Examination Unit or designee. As part of the financial examination, the financial examiner will verify the adequacy of the accounting system, the suitability of proposed costs and the nature and sources of proposed matching funds.

    (2) The examinations by the SBA will not serve as a substitute for audits required of Federal recipients under the Single Audit Act of 1984, 31 U.S.C Chapter 75 or applicable Office of Management and Budget guidelines (see 2 CFR part 200), nor will such internal reviews serve as a substitute for audits to be conducted by the SBA Office of the Inspector General under authority of the Inspector General Act of 1978, as amended.

    (c) Investigations. SBA may conduct investigations to determine whether any person or entity has engaged in acts or practices constituting a violation of the Small Business Act, 15 U.S.C. 656, any rule, order or regulation, or any other applicable Federal law.

    (d) Audited Financial Statements. Audited financial statements shall be required of all WBCs in a new initial phase period of performance. Thereafter, the SBA reserves the right to require a recipient organization to submit audited financial statements as a condition of a cooperative agreement when the results of a financial or programmatic examination demonstrate significant financial issues or significant internal control issues.

    § 131.800 Cooperative Agreement and Contracts.

    (a) General. A recipient organization will incorporate into its WBC the applicable provisions of the cooperative agreement.

    (b) Goals and Milestones. (1) The SBA district office and the WBC Program Director will negotiate the goals, milestones, and activities for the cooperative agreement annually. Agency loan goals may not be negotiated or incorporated into the cooperative agreement without the prior written approval of the SBA Administrator.

    (2) Failing to meet the goals and milestones of the cooperative agreement may result in suspension, termination, non-renewal in accordance with § 131.830.

    (c) Procurement Policies and Procedures. (1) The WBC may contract out for certain functions as permitted by the terms and conditions of the cooperative agreement, but may not expend more than 49 percent of the total project funds on contractors and consultants in conducting the project.

    (2) The SBA may direct or otherwise approve any obligations or expenditures by recipient organizations, including those related to vendors or contractors, as deemed appropriate by the agency.

    § 131.810 Other Federal Grants.

    (a) Grants from Other Agencies. A recipient organization may enter into a contract or grant with another Federal department or agency to provide specific assistance to small business concerns in accordance with the following conditions:

    (1) Any additional contract or grant funds obtained from a Federal source may not be used as matching funds for the WBC project, with the exception of Community Development Block Grant funds.

    (2) Federal funds from the SBA and match expenditures reported to the SBA under the cooperative agreement may not be used or reported as match for another Federal program.

    (3) The SBA does not impose any requirements for additional matching funds for those recipient organizations managing other Federal contracts.

    (4) The WBC must report these other Federal funds and any associated matching funds separately to the SBA.

    (b) RISE After Disaster Grants. In accordance with 15 U.S.C. 636(b)(12), SBA may provide financial assistance to a Women's Business Center, Small Business Development Center under 13 CFR part 130, SCORE, or any proposed consortium of such individuals or entities to spur disaster recovery and growth of small business concerns located in an area for which the President has declared a major disaster. (1) The Administrator, in cooperation with the recipients of financial assistance under this paragraph shall establish metrics and goals for performance of grants, contracts, and cooperative agreements under this paragraph, which shall include recovery of sales, recovery of employment, reestablishment of business premises and establishment of new small-business concerns.

    (2) Matching funds are not required for any grant, contract or cooperative agreement under this paragraph. (See section 7(b) of the Small Business Act 15 U.S.C. 636 (b)).

    § 131.820 Revisions and Amendments to Cooperative Agreements.

    Requests for Revisions. During a project period, the WBC may request, in writing, one or more revisions to the cooperative agreement. The request must be submitted by the recipient organization's authorized official. Revisions will normally relate to changes in scope, work or funding during the specified budget period. No proposed revision will be implemented without the prior approval from the Office of Women's Business Ownership Grants Management Officer. Revisions that require an amendment include the prior approval items listed in 2 CFR 200.308 and 200.407.

    § 131.830 Suspension, Termination, and Non-renewal.

    (a) General. After entering into a cooperative agreement with a recipient organization, the SBA may take, as it deems appropriate, any of the following enforcement actions based upon one or more of the circumstances listed in (b) below:

    (1) Suspension. The SBA may suspend a cooperative agreement with a recipient organization at any point. A decision to suspend a cooperative agreement with a recipient organization is effective immediately as of the date of the notice of suspension. The period of suspension will begin on the date of the notice of suspension and will last no longer than 6 months. At the end of the period of suspension, or at any point during that period, the SBA will either reinstate the cooperative agreement or commence an action for termination or non-renewal.

    The notice of suspension will recommend that the recipient organization cease work on the project immediately. The SBA is under no obligation to reimburse any expenses incurred by a recipient organization while its cooperative agreement is under suspension. Where the SBA decides to lift a suspension and reinstate a recipient organization's cooperative agreement, the agency may, at its discretion, choose to make funds available to reimburse a recipient organization for some or all of the expenses it incurred in furtherance of project objectives during the period of suspension. However, there is no guarantee that the agency will elect to accept such expenses and recipient organizations incurring expenses while under suspension do so at their own risk.

    (2) Termination. The SBA may terminate a cooperative agreement with a recipient organization at any point. A decision to terminate a cooperative agreement is effective immediately as of the date of the notice of termination. A recipient organization may not incur further obligations under the cooperative agreement after the date of termination unless it has been expressly authorized to do so in the notice of termination.

    Funds remaining under the cooperative agreement may be made available by the SBA to satisfy financial obligations properly incurred by the recipient organization prior to the date of termination. Award funds will not be available for obligations incurred subsequent to the effective date of termination unless expressly authorized under the notice of termination. A recipient organization that has had its cooperative agreement terminated will have 90 days to submit final closeout documents as instructed by the SBA.

    (3) Non-Renewal. The SBA may elect not to renew a cooperative agreement with a recipient organization at any point. In undertaking a non-renewal action, the SBA may either decline to accept or consider any application for renewal the organization submits, or the agency may decline to exercise any option years remaining under the cooperative agreement. A recipient organization that has had its cooperative agreement non-renewed may continue to conduct project activities and incur allowable expenses until the end of the current budget period.

    Funds remaining under a non-renewed cooperative agreement may be utilized to satisfy financial obligations the recipient organization properly incurred prior to the end of the budget period. Award funds will not be available for obligations incurred subsequent to the end of the current budget period. A recipient organization that has had its cooperative agreement non-renewed will have until the end of the current budget period or 120 days, whichever is longer, to conclude its operations and submit close-out documents as instructed by the SBA.

    (b) Causes. The SBA may suspend, terminate, or not renew a cooperative agreement with a recipient organization for cause. Cause may include, but is not limited to, the following:

    (1) Non-performance;

    (2) Poor performance;

    (3) Unwillingness or inability to implement changes to improve performance;

    (4) Willful or material failure to comply with the terms of the cooperative agreement, including relevant OMB circulars;

    (5) Conduct reflecting a lack of business integrity or honesty on the part of the recipient organization, the WBC Program Director, or other significant employee(s), which has not been properly addressed;

    (6) A conflict of interest on the part of the recipient organization, the WBC Program Director, or other significant employees causing real or perceived detriment to a small business concern, a contractor, the WBC or the SBA;

    (7) Improper use of federal funds;

    (8) Failure of a WBC to consent to audits, examinations, or to maintain required documents or records;

    (9) Failure to implement recommendations from the audits or examinations within 30 days of their receipt;

    (10) Failure of the WBC Program Director to work at the WBC on a 100 percent full-time basis on the WBC project;

    (11) Failure to promptly suspend or terminate the employment of a WBC Program Director, or other significant employee upon receipt of knowledge or written information by the recipient organization and/or the SBA indicating that such individual has engaged in conduct which may result or has resulted in a criminal conviction or civil judgment which would cause the public to question the WBC's integrity. In making the decision to suspend or terminate such an employee, the recipient organization must consider such factors as the magnitude and repetitiveness of the harm caused and the remoteness in time of the behavior underlying any conviction or judgment;

    (12) Failure to maintain adequate client service facilities or service hours;

    (13) Any other action that the SBA believes materially and adversely affects the operation or integrity of a WBC or the WBC program.

    (c) Procedures. The same procedures will apply regardless of whether a cooperative agreement with a recipient organization is being suspended, terminated or non-renewed by the SBA. (1) Taking Action. When the Office of Women's Business Ownership has reason to believe there is cause to suspend, terminate or non-renew a cooperative agreement with a recipient organization (either based on its own knowledge or upon information provided to it by other parties), the AA/Office of Women's Business Ownership may undertake such an enforcement action by issuing a written notice of suspension, termination, or non-renewal to the recipient organization.

    (2) Notice Requirements. Each notice of suspension, termination, or non-renewal will set forth the specific facts and reasons for the AA/Office of Women's Business Ownership's decision and will include reference to the appropriate legal authority. The notice will also advise the recipient organization that it has the right to request an administrative review of the decision to suspend, terminate or non-renew its cooperative agreement in accordance with the procedures set forth in 131.830 (d). The notice will be transmitted to the recipient organization on the same date it is issued by both U.S. Mail and facsimile or as an email attachment.

    (3) Relationship to Government-Wide Suspension and Debarment. A decision by the SBA to suspend, terminate or not renew a WBC cooperative agreement does not constitute a nonprocurement suspension or debarment of a recipient organization under E. O. 12549 and SBA's implementing regulations (2 CFR part 2700). However, a decision by the SBA to undertake a suspension, termination, or non-renewal enforcement action with regard to a particular WBC cooperative agreement does not preclude or preempt the agency from also taking action to suspend or debar a recipient organization for purposes of all Federal procurement and/or nonprocurement opportunities.

    (d) Administrative Review. Any recipient organization that has had its cooperative agreement suspended, terminated, or non-renewed has the right to request an administrative review of the SBA enforcement action. Administrative review of WBC enforcement actions will be conducted by the Associate Administrator for the Office of Entrepreneurial Development (AA/OED). (1) Format. There is no prescribed format for a request for administrative review of an SBA enforcement action. While a recipient organization has the right to retain legal counsel to represent its interests in connection with an administrative review, it is under no obligation to do so. Formal briefs and other technical forms of pleading are not required. However, a request for administrative review of an SBA enforcement action must be in writing, should be concise and logically arranged, and must at a minimum include the following information:

    (i) Name and address of the recipient organization;

    (ii) Identification of the relevant SBA office/program (i.e., Office of Women's Business Ownership/Women's Business Center Program);

    (iii) Cooperative agreement number;

    (iv) Copy of the notice of suspension, termination, or non-renewal;

    (v) Statement regarding why the recipient organization believes the SBA's actions were arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with the law;

    (vi) Identification of the specific relief being sought (e.g., lifting of the suspension);

    (vii) Statement as to whether the recipient organization is requesting a hearing and, if so, the reasons why it believes a hearing is necessary; and

    (viii) Copies of any documents or other evidence the recipient organization believes support its position.

    (2) Service. Any recipient organization requesting administrative review of an SBA enforcement action must submit copies of its request (including any attachments) to all of the following parties:

    Associate Administrator for the Office of Entrepreneurial Development, U.S. Small Business Administration, 409 Third St. SW., 6th Floor, Washington, DC 20416. Email: [email protected]

    Assistant Administrator for the Office of Women's Business Ownership, U.S. Small Business Administration, 409 Third St. SW., 6th Floor, Washington, DC 20416. Email: [email protected]

    Associate General Counsel for Procurement Law, U.S. Small Business Administration, 409 Third St. SW., 5th Floor, Washington, DC 20416. Facsimile number: 202-205-6846.

    (e) Timeliness. In order to be considered timely, the AA/OED must receive a recipient organization's request for administrative review within 30 days of the date of the notice of suspension, termination, or non-renewal. Any request for administrative review received by the AA/OED more than 30 days after the date of the notice of suspension, termination, or non-renewal will be considered untimely and will automatically be rejected without being considered.

    In addition, if the AA/OED does not receive a request for administrative review within the 30-day deadline, then the decision by the AA/Office of Women's Business Ownership to suspend, terminate, or non-renew a recipient organization's cooperative agreement will automatically become the final agency decision on the matter.

    (f) Standard of Review. In order to have the suspension, termination, or non-renewal of a cooperative agreement reversed on administrative review, a recipient organization must successfully demonstrate that the SBA enforcement action was arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with the law.

    (g) Conduct of the Proceeding. Each party must serve the opposing party with copies of all requests, arguments, evidence, and any other filings it submits pursuant to the administrative review. Within 30 days of the AA/OED receiving a request for administrative review, the AA/OED must also receive the SBA's arguments and evidence in defense of its decision to suspend, terminate, or non-renew a recipient organization's cooperative agreement. If the SBA fails to provide its arguments and evidence in a timely manner, the administrative review will be conducted solely on the basis of the information provided by the recipient organization.

    After receiving the SBA's response to the request for administrative review or the passage of the 30-day deadline for filing such a response, the AA/OED will take one or more of the following actions, as applicable:

    (i) Notify the parties whether she/he has decided to grant a request for a hearing;

    (ii) direct the parties to submit further arguments and/or evidence on any issues which she/he believes require clarification;

    (iii) notify the parties that she/he has declared the record to be closed and therefore she/he will refuse to admit any further evidence or argument.

    The AA/OED will only grant a request for a hearing if she/he concludes that there is a genuine dispute as to a material fact that cannot be resolved except by the taking of testimony and the confrontation of witnesses. If the AA/OED grants a request for a hearing, she/he will set the time and place for the hearing, determine whether the hearing will be conducted in person or via telephone, and identify which witnesses will be permitted to give testimony.

    Within 10 calendar days of declaring the record to be closed, the AA/OED will provide all parties with a copy of her/his written decision on the merits of the administrative review.

    (h) Evidence. The recipient organization and the SBA each have the right to submit whatever evidence they believe is relevant to the matter in dispute. No form of discovery will be permitted unless a party has made a substantial showing, based upon credible evidence and not mere allegation that the other party has acted in bad faith or engaged in improper behavior.

    (i) Decision. The decision of the AA/Office of Entrepreneurial Development will be effective immediately as of the date it is issued. The decision of the AA/OED will represent the final agency decision on all matters in dispute on administrative review. No further relief may be sought from or granted by the agency. If the AA/OED determines that the SBA's decision to suspend, terminate, or non-renew a cooperative agreement was arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with the law, she/he will reverse the agency's enforcement action and direct the SBA to reinstate the recipient organization's cooperative agreement.

    Where an enforcement action has been reversed on administrative review, the SBA will have no more than 10 calendar days to implement the AA/OED's decision. However, to the extent permitted under the applicable OMB circulars, the SBA reserves the right to impose such special conditions in the recipient organization's cooperative agreement as it deems necessary to protect the government's interests.

    § 131.840 Dispute Procedures.

    (a) Financial and Programmatic Disputes. (1) A recipient organization wishing to resolve a dispute regarding a financial or programmatic matter other than suspension, termination, or non-renewal of its award must submit a written statement describing the subject of the dispute, along with any relevant documentation, to the Chairman of the Grants Appeal Committee.

    (2) If the recipient organization receives an unfavorable decision from the SBA, it may file an appeal with the AA/OED within 30 calendar days from receipt of the decision.

    (3) The AA/Office of Entrepreneurial Development may request additional information or documentation from the recipient organization at any stage of the proceedings. The response to the request for additional information must be provided, in writing, to the AA/OED within 15 calendar days of receipt of the request. The AA/OED will transmit a written decision to the recipient organization within 15 calendar days of receipt of the appeal, or within 15 calendar days of receipt of additional information requested.

    (4) If the recipient organization receives an unfavorable decision from the AA/OED, it may make a final appeal to the SBA Grants and Cooperative Agreements Appeals Committee (the “committee”). The final appeal to the committee must be filed within 30 calendar days of the date of receipt of the AA/Office of Entrepreneurial Development's written decision. Copies of the appeal must also be sent to the AA/Office of Women's Business Ownership and the OWBO grants management specialist. If the recipient organization elects not to file an appeal with the committee, the decision of the AA/Office of Entrepreneurial Development becomes the final decision. (See paragraph (a)(3) of this section).

    (5) Requests for an appeal before the committee will not be granted unless the agency determines there are substantial material facts in dispute. Legal briefs and other technical forms of pleading are not required. Final appeals must be in writing and contain all of the following:

    (i) Name and address of the recipient organization;

    (ii) Name and address of the appropriate SBA district office(s);

    (iii) The cooperative agreement number, including amendments;

    (iv) A statement of the grounds for appeal, with reasons why the appeal should be sustained;

    (v) The specific relief desired on appeal; and

    (vi) If an appeal is requested, a statement of the material facts that are substantially in dispute.

    (6) The committee may request additional information or documentation from the recipient organization at any stage in the proceedings. The recipient organization's response to the committee's request for additional information or documentation must be submitted, in writing, to the committee within 15 calendar days of receipt of the request. In the event that the recipient organization fails to follow the procedures specified in paragraph (a)(5) of this section, the committee may dismiss the appeal by a written order.

    (7) If a request for an appeal is granted, the committee will provide the recipient organization with written instructions, and will afford the parties an opportunity to present their positions to the committee in writing.

    (8) The chairperson of the committee, with advice from the SBA Office of General Counsel, will issue a final written decision within 30 calendar days of receipt of all information or inform the recipient organization that additional time to issue a decision is necessary. A copy of the decision will be transmitted to the recipient organization, with copies to the AA/Office of Women's Business Ownership, the grants management specialist, and the SBA district office.

    (9) At any time within 120 days of the end of the budget period, the recipient organization may submit a written request to use an expedited dispute appeal process. The committee, by an affirmative vote of a majority of its total membership, may expedite the appeals process to attain final resolution of a dispute before the issuance date of a new cooperative agreement.

    § 131.850 Closeout procedures.

    (a) General. Closeout procedures are used to ensure that the WBC program funds and property acquired or developed under the WBC cooperative agreement are fully reconciled and transferred seamlessly between the recipient organization and other Federal programs. The responsibility of conducting closeout procedures is vested with the recipient organization whose cooperative agreement is being relinquished, terminated, non-renewed or suspended.

    (b) Responsibilities. (1) Recipient Organizations. When a WBC cooperative agreement is not being renewed or a WBC is terminated, regardless of cause, the recipient organization will address the following in their closeout process and perform the necessary inventories and reconciliations prior to submitting the final annual financial report.

    (i) An inventory of WBC property must be compiled, evaluated, and all property and the aggregate of usable supplies and materials accounted for in this inventory.

    (ii) Program income balances will be reconciled and unused WBC program income which is not used as match or cannot otherwise be used to offset legitimate expenditures of the WBC, must be returned to SBA.

    (iii) Client counseling and training records, paper and electronic, will be compiled to facilitate an SBA program closeout review.

    (iv) Financial records will be compiled to facilitate a closeout of the SBA financial examination.

    (2) SBA. Upon receipt of the final annual financial report from a non-renewing or terminated recipient organization, the AA/OWBO will issue disposition instructions to the former recipient organization.

    (c) Final disposition. (1) The final financial status report from the recipient organization must include the information identified in the inventory process and identify any WBC program income collected for services provided.

    (2) The AA/OWBO will issue written disposition instructions to the recipient organization providing:

    (i) The name and address of the entity or agency to which property and program income must be transferred;

    (ii) A date by which the transfer must be completed;

    (iii) Actions to be taken regarding property and WBC program income;

    (iv) Actions to be taken regarding WBC program records such as client and training files; and

    (v) Authorization to incur costs for accomplishing the transfer. Such costs may, when authorized, be applied to residual WBC program income, or Federal or matching funds.

    § 131.900 Ensuring Client Privacy.

    (a) Women's Business Centers, including their contractors and other agents, are not permitted to disclose the name, address, or telephone number of individuals or small businesses that obtain any type of assistance from the program, hereafter referred to as “client contact data,” to any person or entity other than the WBC, without the consent of the Client, except in instances where:

    (1) Court orders require the Administrator to do so in any civil or criminal enforcement action initiated by a Federal or State agency;

    (2) the Administrator considers such a disclosure to be necessary for the purpose of conducting a financial audit of a center, not including those required under section 130.830, as determined on a case-by-case basis when formal requests are made by a Federal or State agency. Such formal requests must justify and document the need for individual client contact and/or program activity data to the satisfaction of the Administrator;

    (3) the agency requires client contact data to directly survey WBC clients.

    (b) Women's Business Centers must provide an opportunity for a client to opt-in to allow the SBA to obtain client contact data. The SBA may use the permitted client contact data only to conduct surveys and studies that help stakeholders better understand how the services the client received affect their business outcomes over time. These studies would include, but not be limited to:

    (1) Program evaluation and performance management studies;

    (2) Measuring the effect and economic or other impact of agency programs;

    (3) Assessing public and WBC partner needs;

    (4) Measuring customer satisfaction;

    (5) Guiding program policy development;

    (6) Improving grant-making processes; and

    (7) Other areas the SBA determines would be valuable to strengthen the WBC program and/or enhance support for WBC clients.

    (c) Women's Business Centers may not deny access to services to clients solely based on their refusal to provide consent as referenced in this section.

    (d) All data collections will adhere to 5 CFR 1320. The collection standards and oversight will be coordinated with SBA Office of General Counsel and approved by OMB in compliance with the Paperwork Reduction Act. That process is designed to reduce, minimize and control burdens and maximize the practical utility and public benefit of the information created, collected, disclosed, maintained, used, shared and disseminated.

    (e) Any reports or studies on program activity produced by the Administrator and/or a WBC, including its contractors and other agents, may not disseminate client contact data and must only report data in the aggregate. Individual client contact data will not be disclosed in any way that could individually identify a client.

    (f) The Administrator and the WBC, including its contractors and other agents, must obtain consent from the client prior to publishing media or reports that identify an individual client.

    (g) This section does not restrict the agency in any way from access and use of program performance data.

    Maria Contreras-Sweet, Administrator.
    [FR Doc. 2016-27376 Filed 11-21-16; 8:45 am] BILLING CODE 8025-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No.FAA-2016-9409; Notice No. 23-16-03-SC] Special Conditions: Cranfield Aerospace Limited, Cessna Aircraft Company Model 525; Tamarack Load Alleviation System and Cranfield Winglets—Interaction of Systems and Structures AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed special conditions.

    SUMMARY:

    This action proposes special conditions for the Cessna Aircraft Company model 525 airplane. This airplane as modified by Cranfield Aerospace Limited will have a novel or unusual design features associated with the installation of a Tamarack Active Technology Load Alleviation System and Cranfield Winglets. These design features will include winglets and an Active Technology Load Alleviation System. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    Send your comments on or before December 22, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-9409 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery of Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://regulations.gov, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

    Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Mike Reyer, Continued Operational Safety, ACE-113, Small Airplane Directorate, Aircraft Certification Service, 901 Locust; Kansas City, Missouri 64106; telephone (816) 329-4131; facsimile (816) 329-4090.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

    We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

    Background

    On January 25, 2016, Cranfield Aerospace Limited (CAL) applied for a supplemental type certificate to install winglets on the Cessna Aircraft Company (Cessna) model 525. The Cessna model 525 twin turbofan engine airplane is certified in the normal category for eight seats, including a pilot, a maximum gross weight of 10,700 pounds, and a maximum altitude of 41,000 feet mean sea level.

    Special conditions have been applied on past 14 CFR part 25 airplane programs in order to consider the effects on systems on structures. The regulatory authorities and industry developed standardized criteria in the Aviation Rulemaking Advisory Committee (ARAC) forum based on the criteria defined in Advisory Circular 25.672-1, dated November 15, 1983. The ARAC recommendations have been incorporated in the European Aviation Safety Agency Certification Specifications (CS) 25.302 and CS 25, appendix K. The special conditions used for part 25 airplane programs, can be applied to part 23 airplane programs in order to require consideration of the effects of systems on structures. However, some modifications to the part 25 special conditions are necessary to address differences between parts 23 and 25 as well as differences between parts 91 and 121 operating environments.

    Winglets increase aerodynamic efficiency. However, winglets also increase wing design static loads, increase the severity of the wing fatigue spectra, and alter the wing fatigue stress ratio, which under limit gust and maneuvering loads factors, may exceed the certificated wing design limits. The addition of the Tamarack Active Technology Load Alleviation System (ATLAS) mitigates the winglet's adverse structural effects by reducing the aerodynamic effectiveness of the winglet when ATLAS senses gust and maneuver loads above a predetermined threshold.

    The ATLAS functions as a load-relief system. This is accomplished by measuring airplane loading via an accelerometer and moving an aileron-like device called a Tamarack Active Control Surface (TACS) that reduces lift at the tip of the wing. The TACS are located outboard and adjacent to the left and right aileron control surfaces. The TACS movement reduces lift at the tip of the wing, resulting in the wing spanwise center of pressure moving inboard, thus reducing bending stresses along the wing span. Because the ATLAS compensates for the increased wing root bending at elevated load factors, the overall effect of this modification is that the required reinforcement of the existing Cessna wing structure due to the winglet installation is reduced. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.

    The ATLAS is not a primary flight control system, a trim device, or a wing flap. However, several regulations under Part 23, Subpart D—Design and Construction—Control Systems, have applicability to ATLAS, which might otherwise be considered “Not Applicable” under a strict interpretation of the regulations. These Control System regulations include §§ 23.672, 23.675, 23.677, 23.681, 23.683, 23.685, 23.693, 23.697, and 23.701.

    An airplane designed with a load-relief system must provide a equivalent level of safety to an airplane with similar characteristics designed without a load-relief system. In the following special conditions, an equivalent level of safety is provided by relating the required structural safety factor to the probability of load-relief system failure and the probability of exceeding the frequency of design limit and ultimate loads.

    These special conditions address several issues with the operation and failure of the load-relief system. These issues include the structural requirements for the system in the fully operational state; evaluation of the effects of system failure, both at the moment of failure and continued safe flight and landing with the failure annunciated to the pilot; and the potential for failure of the failure monitoring/pilot annunciation function.

    The structural requirements for the load-relief system in the fully operational state are stated in special condition 2(e) of these special conditions. In this case, the structure must meet the full requirements of part 23, subparts C and D with full credit given for the effects of the load-relief system.

    In the event of a load-relief system failure in-flight, the effects on the structure at the moment of failure must be considered as described in special condition 2(f)(l) of these special conditions. These effects include, but are not limited to the structural loads induced by a hard-over failure of the load-relief control surface and oscillatory system failures that may excite the structural dynamic modes. In evaluating these effects, pilot corrective actions may be considered and the airplane may be assumed to be in 1g (gravitation force) flight prior to the load-relief system failure. These special conditions allows credit, in the form of reduced structural factors of safety, based on the probability of failure of the load-relief system. Effects of an in-flight failure on flutter and fatigue and damage tolerance must also be evaluated.

    Following the initial in-flight failure, the airplane must be capable of continued safe flight and landing. Special condition 2(f)(2) in these special conditions assumes that a properly functioning, monitoring, and annunciating system has alerted the pilot to the load-relief failure. Since the pilot has been made aware of the load-relief failure, appropriate flight limitations, including speed restrictions, may be considered when evaluating structural loads, flutter, and fatigue and damage tolerance. These special conditions allows credit, in the form of reduced structural factors of safety, based on the probability of failure of the load-relief system and the flight time remaining on the failure flight.

    Special condition 2(g) of these special conditions addresses the failure of the load-relief system to annunciate a failure to the pilot. These special conditions addresses this concern with maintenance actions and requirements for monitoring and annunciation systems.

    These special conditions have been modified from previous, similar part 25 special conditions because of the differences between parts 23 and 25 as well as to address the part 91 operating and maintenance environment. Paragraph (c)(3) of the part 25 special condition 2 is removed from these special conditions. Special condition 2(h) of these special conditions is modified to require a ferry permit for additional flights after an annunciated failure or obvious system failure.

    2 Special Condition No. 25-164-SC, “Boeing Model 737-700 IGW, Interaction of Systems and Structures,” Effective August 30, 2000 (65 FR 55443).

    Type Certification Basis

    Under the provisions of § 21.101, Cranfield Aerspace Limited must show that the Cessna model 525, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A1WI, revision 24, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A1WI, revision 24 are 14 CFR part 23 effective February 1, 1965, amendments 23-1 through 23-38 and 23-40.

    If the Administrator finds the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the Cessna model 525 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    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 FAA would apply these special conditions to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Cessna 525 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.

    Novel or Unusual Design Features

    The Cessna model 525 will incorporate the following novel or unusual design features: Cranfield winglets with a Tamarack Active Technology Load Alleviation System.

    Discussion

    Airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the applicant must take into account the influence of these systems and their failure conditions when showing compliance with the requirements of part 23, subparts C and D.

    The applicant must use the following criteria for showing compliance with these special conditions for airplanes equipped with flight control systems, autopilots, stability augmentation systems, load alleviation systems, flutter control systems, fuel management systems, and other systems that either directly or as a result of failure or malfunction affect structural performance. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.

    Applicability

    As discussed above, these special conditions are applicable to the Cessna model 525. Should Cranfield Aerspace Limited apply at a later date for a supplemental type certificate to modify any other model included on A1WI, revision 24 to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model 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.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Proposed Special Conditions

    Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Cessna Aircraft Company 525 airplanes modified by Cranfield Aerospace Limited.

    1. Active Technology Load Alliviation System (ATLAS) SC 23.672 Load Alleviation System

    The load alleviation system must comply with the following:

    (a) A warning, which is clearly distinguishable to the pilot under expected flight conditions without requiring the pilot's attention, must be provided for any failure in the load alleviation system or in any other automatic system that could result in an unsafe condition if the pilot was not aware of the failure. Warning systems must not activate the control system.

    (b) The design of the load alleviation system or of any other automatic system must permit initial counteraction of failures without requiring exceptional pilot skill or strength, by either the deactivation of the system or a failed portion thereof, or by overriding the failure by movement of the flight controls in the normal sense.

    (1) If deactivation of the system is used to counteract failures, the control for this initial counteraction must be readily accessible to each pilot while operating the control wheel and thrust control levers.

    (2) If overriding the failure by movement of the flight controls is used, the override capability must be operationally demonstrated.

    (c) It must be shown that, after any single failure of the load alleviation system, the airplane must be safely controllable when the failure or malfunction occurs at any speed or altitude within the approved operating limitations that is critical for the type of failure being considered;

    (d) It must be shown that, while the system is active or after any single failure of the load alleviation system—

    (1) The controllability and maneuverability requirements of part 23, subpart D, are met within a practical operational flight envelope (e.g., speed, altitude, normal acceleration, and airplane configuration) that is described in the Airplane Flight Manual (AFM); and

    (2) The trim, stability, and stall characteristics are not impaired below a level needed to permit continued safe flight and landing.

    SC 23.677 Load Alleviation Active Control Surface

    (a) Proper precautions must be taken to prevent inadvertent or improper operation of the load alleviation system. It must be demonstrated that with the load alleviation system operating throughout its operational range, a pilot of average strength and skill level is able to continue safe flight with no objectionable increased workload.

    (b) The load alleviation system must be designed so that, when any one connecting or transmitting element in the primary flight control system fails, adequate control for safe flight and landing is available.

    (c) The load alleviation system must be irreversible unless the control surface is properly balanced and has no unsafe flutter characteristics. The system must have adequate rigidity and reliability in the portion of the system from the control surface to the attachment of the irreversible unit to the airplane structure.

    (d) It must be demonstrated the airplane is safely controllable and a pilot can perform all maneuvers and operations necessary to effect a safe landing following any load allevation system runaway not shown to be extremely improbable, allowing for appropriate time delay after pilot recognition of the system runaway. The demonstration must be conducted at critical airplane weights and center of gravity positions.

    SC 23.683 Operation Tests

    (a) It must be shown by operation tests that, when the flight control system and the load alleviation systems are operated and loaded as prescribed in paragraph (c) of this section, the flight control system and load alleviation systems are free from—

    (1) Jamming;

    (2) Excessive friction; and

    (3) Excessive deflection.

    (b) The operation tests in paragraph (a) of this section must also show the load alleviation system and associated surfaces do not restrict or prevent aileron control surface movements, or cause any adverse response of the ailerons, under the loading prescribed in paragraph (c) of this section that would prevent continued safe flight and landing.

    (c) The prescribed test loads are for the entire load alleviation and flight control systems, loads corresponding to the limit airloads on the appropriate surfaces.

    Note: Advisory Circular (AC) 23-17C “Systems and Equipment Guide to Certification of Part 23 Airplanes” provides guidance on potential methods of compliance with this section and other regulations applicable to this STC project.

    SC 23.685 Control System Details

    (a) Each detail of the load alleviation system and related moveable surfaces must be designed and installed to prevent jamming, chafing, and interference from cargo, passengers, loose objects, or the freezing of moisture.

    (b) There must be means in the cockpit to prevent the entry of foreign objects into places where they would jam any one connecting or transmitting element of the load alleviation system.

    (c) Each element of the load alleviation system must have design features, or must be distinctively and permanently marked, to minimize the possibility of incorrect assembly that could result in malfunctioning of the control system.

    SC 23.697 Load Alleviation System Controls

    (a) The load alleviation control surface must be designed so that during normal operation, when the surface has been placed in any position, it will not move from that position unless the control is adjusted or is moved by the operation of a load alleviation system.

    (b) The rate of movement of the control surface in response to the load alleviation system controls must give satisfactory flight and performance characteristics under steady or changing conditions of airspeed, engine power, attitude, flap configuration, speedbrake position, and during landing gear extension and retraction.

    SC 23.701 Load Alleviation System Interconnection

    (a) The load alleviation system and related movable surfaces as a system must—

    (1) Be synchronized by a mechanical interconnection between the movable surfaces or by an approved equivalent means; or

    (2) Be designed so the occurrence of any failure of the system that would result in an unsafe flight characteristic of the airplane is extremely improbable; or

    (b) The airplane must be shown to have safe flight characteristics with any combination of extreme positions of individual movable surfaces.

    (c) If an interconnection is used in multiengine airplanes, it must be designed to account for unsymmetrical loads resulting from flight with the engines on one side of the plane of symmetry inoperative and the remaining engines at takeoff power. For single-engine airplanes, and multiengine airplanes with no slipstream effects on the load alleviation system, it may be assumed that 100 percent of the critical air load acts on one side and 70 percent on the other.

    §§ 23.675, “Stops;” 23.681, “Limit Load Static Tests;” and 23.693, “Joints”

    The load alleviation system must comply with §§ 23.675, 23.681, and 23.693 as written and no unique special condition will be required for these regulations.

    Applicability of Control System Regulations to Other Control Systems

    The load alleviation system must comply with §§ 23.675, 23.681, and 23.693 as written and no unique special condition will be required for these regulations.

    2. Interaction of Systems and Structures

    (a) The criteria defined herein only address the direct structural consequences of the system responses and performances and cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. These criteria may in some instances duplicate standards already established for this evaluation. These criteria are only applicable to structure whose failure could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements when operating in the system degraded or inoperative mode are not provided in this special condition.

    (b) Depending upon the specific characteristics of the airplane, additional studies may be required that go beyond the criteria provided in this special condition in order to demonstrate the capability of the airplane to meet other realistic conditions such as alternative gust or maneuver descriptions for an airplane equipped with a load alleviation system.

    (c) The following definitions are applicable to this special condition.

    (1) Structural performance: Capability of the airplane to meet the structural requirements of 14 CFR part 23.

    (2) Flight limitations: Limitations that can be applied to the airplane flight conditions following an in-flight occurrence and that are included in the flight manual (e.g., speed limitations, avoidance of severe weather conditions, etc.).

    (3) Reserved.

    (4) Probabilistic terms: The probabilistic terms (probable, improbable, extremely improbable) used in this special condition are the same as those used in § 23.1309. For the purposes of this special condition, extremely improbable for normal, utility, and acrobatic category airplanes is defined as 10 8 per hour. For commuter category airplanes, extremely improbable is defined as 10 9 per hour.

    (5) Failure condition: The term failure condition is the same as that used in § 23.1309, however this special condition applies only to system failure conditions that affect the structural performance of the airplane (e.g., system failure conditions that induce loads, change the response of the airplane to inputs such as gusts or pilot actions, or lower flutter margins).

    (d) General. The following criteria (paragraphs (e) through (i)) will be used in determining the influence of a system and its failure conditions on the airplane structure.

    (e) System fully operative. With the system fully operative, the following apply:

    (1) Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in subpart C (or defined by special condition or equivalent level of safety in lieu of those specified in subpart C), taking into account any special behavior of such a system or associated functions or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.

    (2) The airplane must meet the strength requirements of part 23 (static strength and residual strength for failsafe or damage tolerant structure), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.

    (3) The airplane must meet the aeroelastic stability requirements of § 23.629.

    (f) System in the failure condition. For any system failure condition not shown to be extremely improbable, the following apply:

    (1) At the time of occurrence. Starting from 1-g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after failure.

    (i) For static strength substantiation, these loads, multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure, are ultimate loads to be considered for design. The factor of safety is defined in figure 1.

    EP22NO16.011

    (ii) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in subparagraph (f)(1)(i).

    (iii) For pressurized cabins, these loads must be combined with the normal operating differential pressure.

    (iv) Freedom from aeroelastic instability must be shown up to the speeds defined in § 23.629(f). For failure conditions that result in speeds beyond VD/MD, freedom from aeroelastic instability must be shown to increased speeds, so that the margins intended by § 23.629(f) are maintained.

    (v) Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.

    (2) For the continuation of the flight. For the airplane, in the system failed state and considering any appropriate reconfiguration and flight limitations, the following apply:

    (i) The loads derived from the following conditions (or defined by special condition or equivalent level of safety in lieu of the following conditions) at speeds up to VC/MC, or the speed limitation prescribed for the remainder of the flight, must be determined:

    (A) The limit symmetrical maneuvering conditions specified in §§ 23.321, 23.331, 23.333, 23.345, 23.421, 23.423, and 23.445.

    (B) The limit gust and turbulence conditions specified in §§ 23.341, 23.345, 23.425, 23.443, and 23.445.

    (C) The limit rolling conditions specified in § 23.349 and the limit unsymmetrical conditions specified in §§ 23.347, 23.427, and 23.445.

    (D) The limit yaw maneuvering conditions specified in §§ 23.351, 23.441, and 23.445.

    (E) The limit ground loading conditions specified in §§ 23.473 and 23.493.

    (ii) For static strength substantiation, each part of the structure must be able to withstand the loads in paragraph (f)(2)(i) of this special condition multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in figure 2.

    BILLING CODE 4910-13-P EP22NO16.012

    (iii) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in paragraph (f)(2)(ii) of this special condition. For pressurized cabins, these loads must be combined with the normal operating pressure differential.

    (iv) If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance then their effects must be taken into account.

    (v) Freedom from aeroelastic instability must be shown up to a speed determined from figure 3. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 23.629.

    EP22NO16.013

    (vi) Freedom from aeroelastic instability must also be shown up to V′ in figure 3 above, for any probable system failure condition combined with any damage required or selected for investigation by §§ 23.571 through 23.574.

    (3) Consideration of certain failure conditions may be required by other sections of 14 CFR part 23 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10−8 for normal, utility, or acrobatic category airplanes or less than 10−9 for commuter category airplanes, criteria other than those specified in this paragraph may be used for structural substantiation to show continued safe flight and landing.

    (g) Failure indications. For system failure detection and indication, the following apply:

    (1) The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by part 23 or significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems to achieve the objective of this requirement. These certification maintenance requirements must be limited to components that are not readily detectable by normal detection and indication systems and where service history shows that inspections will provide an adequate level of safety.

    (2) The existence of any failure condition, not extremely improbable, during flight that could significantly affect the structural capability of the airplane and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. The probability of not annunciating these failure conditions must be extremely improbable (unannunciated failure). For example, failure conditions that result in a factor of safety between the airplane strength and the loads of subpart C below 1.25, or flutter margins below V″, must be signaled to the flightcrew during flight.

    (h) Further flights with known load-relief system failure. Additional flights after an annunciated failure of the load-relief system or obvious failure of the load-relief system are permitted with a ferry permit only. In these cases, ferry permits may be issued to allow moving the airplane to an appropriate maintenance facility. Additional flights are defined as, further flights after landing on a flight where an annunciated or obvious failure of the load-relief system has occurred or after an annunciated or obvious failure of the load-relief system occurs during preflight preparation.

    (i) Fatigue and damage tolerance. If any system failure would have a significant effect on the fatigue or damage evaluations required in §§ 23.571 through 23.574, then these effects must be taken into account.

    Issued in Kansas City, Missouri, on November 10, 2016. Mel Johnson, Acting Manager, Small Airplane Directorate Aircraft Certification Service.
    [FR Doc. 2016-28016 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-C
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 27 and 29 [Docket No.: FAA-2016-9275; Notice No. 16-07] RIN 2120-AK91 Rotorcraft Pilot Compartment View; Extension of Comment Period AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM); Reopening of comment period.

    SUMMARY:

    This action reopens the comment period for an NPRM that was published on October 17, 2016. In that document, the FAA proposed to revise its rules for pilot compartment view to allow ground tests to demonstrate compliance for night operations. The FAA is extending the comment period closing date to allow time to adequately analyze the draft advisory circulars (ACs) associated with the proposed rule and prepare comments.

    DATES:

    The comment period for the NPRM published on October 17, 2016, and closed November 16, 2016, and is reopened until December 13, 2016.

    ADDRESSES:

    You may send comments identified by docket number FAA-2016-9275 using any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Thuy H. Cooper, ARM-106, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, telephone (202) 267-4715; email [email protected]

    SUPPLEMENTARY INFORMATION:

    See the “Additional Information” section for information on how to comment on this proposal and how the FAA will handle comments received. The “Additional Information” section also contains related information about the docket, privacy, the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.

    Background

    On October 17, 2016, the FAA issued Notice No. 16-07, entitled “Rotorcraft Pilot Compartment View” (81 FR 71415). Comments to that document were to be received on or before November 16, 2016.

    The FAA did not post for public comment the draft ACs associated with the NPRM until November 9, 2016.1 The FAA finds that providing an additional 21 days is sufficient to analyze the draft ACs and provide meaningful comment to Notice No. 16-07.

    1See Docket FAA-2016-9275 and https://www.faa.gov/aircraft/draft_docs/ac/.

    Absent unusual circumstances, the FAA does not anticipate any further extension of the comment period for this rulemaking.

    Extension of Comment Period

    The FAA has determined that extension of the comment period is consistent with the public interest, and that good cause exists for taking this action.

    Accordingly, the comment period for Notice No. 16-07 is reopened until December 13, 2016.

    Additional Information A. Comments Invited

    The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites 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.

    The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.

    B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the Internet by—

    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or

    3. Accessing the Government Printing Office's Web page at http://www.thefederalregister.org/fdsys/.

    Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.

    All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

    Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC, on November 14, 2016. Dale Bouffiou, Acting Director, Office of Rulemaking.
    [FR Doc. 2016-27966 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9301; Directorate Identifier 2015-NM-193-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2008-12-04, which applies to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. AD 2008-12-04 currently requires various repetitive inspections to detect cracks along the chem-milled steps of the fuselage skin, and to detect missing or loose fasteners in the area of the preventive modification or repairs, replacement of the time-limited repair with the permanent repair if applicable, and applicable corrective actions, if necessary, which would end certain repetitive inspections. Since we issued AD 2008-12-04, an evaluation by the design approval holder (DAH) has indicated that the upper skin panel at the chem-milled step above the lap joint is subject to widespread fatigue damage (WFD) if the modification was installed after 30,000 total flight cycles. This proposed AD would reduce the post-modification inspection compliance times, limit installation of the preventive modification to airplanes with fewer than 30,000 total flight cycles, and add repetitive inspections for modified airplanes. We are proposing this AD to detect and correct cracking of the upper skin panel at the chem-milled step above the lap joint, which could result in reduced structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by January 6, 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 Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9301.

    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-2016-9301; 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:

    Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9301; Directorate Identifier 2015-NM-193-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

    Fatigue damage can occur locally, in small areas or structural design details, or in widespread areas. Multiple-site damage is widespread damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Widespread damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site damage and multiple-element damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane. This condition is known as widespread fatigue damage. It is associated with general degradation of large areas of structure with similar structural details and stress levels. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

    The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

    The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

    In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

    On May 29, 2008, we issued AD 2008-12-04, Amendment 39-15547 (73 FR 32991, June 11, 2008) (“AD 2008-12-04”), for certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. AD 2008-12-04 requires various repetitive inspections to detect cracks along the chem-milled steps of the fuselage skin, and to detect missing or loose fasteners in the area of the preventive modification or repairs, replacement of the time-limited repair with the permanent repair if applicable, and applicable corrective actions, if necessary, which would end certain repetitive inspections. AD 2008-12-04 resulted from a fatigue test that revealed numerous cracks in the upper skin panel at the chem-milled step above the lap joint. We issued AD 2008-12-04 to detect and correct such fatigue-related cracks, which could result in the crack tips continuing to turn and grow to the point where the skin bay flaps open, causing decompression of the airplane.

    Actions Since AD 2008-12-04 Was Issued

    Since we issued AD 2008-12-04, an evaluation by the DAH indicated that the upper skin panel at the chem-milled step above the lap joint is subject to WFD if the modification was installed after that airplane had accumulated 30,000 total flight cycles. We have determined that it is necessary to reduce the post-modification inspection compliance times, limit installation of the preventive modification to airplanes that have accumulated fewer than 30,000 total flight cycles, and add repetitive inspections for modified airplanes.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. This service information describes procedures for an external detailed inspection and an external nondestructive inspection (NDI) for cracks in the fuselage skin at chem-milled steps. Corrective actions include a permanent or time-limited repair, a preventive modification, and replacement of loose and missing fasteners. Related investigative actions include internal and external detailed inspections of the repair area. 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

    Although this proposed AD does not explicitly restate the requirements of AD 2008-12-04, this proposed AD would retain all requirements of AD 2008-12-04. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraphs (g), (h), and (i) of this proposed AD. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this AD and the Service Information.” This proposed AD would reduce the post-modification compliance times required by AD 2008-12-04, limit installation of the preventive modification to airplanes that have not yet accumulated 30,000 total flight cycles, and add repetitive post-modification inspections and applicable corrective actions.

    The phrase “related investigative actions” is used in this proposed AD. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

    The phrase “corrective actions” is used in this proposed AD. Corrective actions are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Difference Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, specifies to contact the manufacturer for certain instructions, but this proposed AD would require accomplishment of repair methods, modification deviations, and alteration deviations in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Costs of Compliance

    We estimate that this proposed AD affects 376 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 Inspections Up to 25 work-hours × $85 per hour = $2,125 per inspection cycle $0 Up to $2,125 per inspection cycle Up to $799,000 per inspection cycle

    We estimate the following costs to do any necessary repairs and replacements that would be required based on the results of the proposed inspections. We have no way of determining the number of aircraft that might need these replacements:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Fastener replacement Up to 1 work-hour × $85 per hour = $85 Minimal $85

    We have received no definitive data that would enable us to provide cost estimates for the related investigative actions, certain repairs, and other applicable actions specified in this proposed AD.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2008-12-04, Amendment 39-15547 (73 FR 32991, June 11, 2008), and adding the following new AD: The Boeing Company: Docket No. FAA-2016-9301; Directorate Identifier 2015-NM-193-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by January 6, 2017.

    (b) Affected ADs

    This AD replaces AD 2008-12-04, Amendment 39-15547 (73 FR 32991, June 11, 2008) (“AD 2008-12-04”).

    (c) Applicability

    This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) that indicated that the upper skin panel at the chem-milled step above the lap joint is subject to widespread fatigue damage (WFD) if the modification was installed after 30,000 total flight cycles. We are issuing this AD to detect and correct cracking of the upper skin panel at the chem-milled step above the lap joint, which could result in reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Inspections at Locations Without the Preventive Modification, Time-limited Repair, or Permanent Repair Installed

    At locations where a preventive modification, time-limited repair, or permanent repair has not been installed as specified in Boeing Service Bulletin 737-53A1232: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, do an external detailed inspection and an inspection specified in either paragraph (g)(1) or (g)(2) of this AD, for any crack in the fuselage skin at the chem-milled steps at specified locations, in accordance with Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Do all applicable related investigative and corrective actions before further flight in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(1) of this AD. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.

    (1) Do an external medium frequency eddy current (MFEC), or magneto optic imager (MOI), or C-Scan inspection.

    (2) Do an external ultrasonic phased array (UTPA) inspection.

    (h) Repetitive Post-Modification Inspections and Repair at Any Location With the Preventive Modification but No Time-Limited or Permanent Repair

    At any location with a preventive modification installed as specified in Boeing Alert Service Bulletin 737-53A1232: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(2) of this AD, do the actions specified in paragraphs (h)(1) and (h)(2) of this AD.

    (1) Do external detailed and external high frequency and medium frequency eddy current inspections for any crack, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If no crack is found during the inspection, repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If any crack is found during any inspection required by this paragraph, repair before further flight, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(1) of this AD.

    (2) Do a detailed inspection for any crack and any loose or missing fasteners, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Repeat the inspections thereafter at applicable time specified in paragraph 1.E, “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If a crack is found during the inspection, or any loose or missing fastener is found, before further flight, do all applicable corrective actions, in accordance with Part V of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as specified in paragraph (l)(1) of this AD.

    (i) Additional Actions for Modified Airplanes

    (1) Except for preventive modifications installed on airplanes listed in Appendix A of Boeing Alert Service Bulletin 737-53A1232 at the specified total flight cycles, at any location where a preventive modification as specified in Boeing Alert Service Bulletin 737-53A1232 was installed after the accumulation of 30,000 total flight cycles: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(2) of this AD, do all applicable investigative and corrective actions using a method approved in accordance with the procedures specified in paragraph (p) of this AD.

    (2) For airplanes which have installed supplemental type certificate (STC) ST01697SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/0812969a86af879b8625766400600105/$FILE/ST01697SE.pdf) and the preventative modification has been installed after 15,000 total flight cycles: Before the accumulation of 25,000 total flight cycles, do all applicable investigative and corrective actions using a method approved in accordance with the procedures specified in paragraph (p) of this AD.

    (j) Inspections and Repair at Locations With the Permanent Chem-Milled Step Repair Installed

    At any location where a permanent repair has been installed as specified in Boeing Service Bulletin 737-53A1232: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015: Do the inspections specified in paragraph (j)(1) or (j)(2) of this AD, in accordance with Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Do all applicable related investigative and corrective actions before further flight in accordance with Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(1) of this AD.

    (1) Do an external low frequency eddy current (LFEC) inspection for any crack, and doubler external LFEC and external detailed inspections for any crack and loose or missing fasteners.

    (2) Do an external LFEC inspection for any crack, and doubler external LFEC and external detailed inspections for any crack and loose or missing fasteners; and an internal MFEC for any crack.

    (k) Inspection and Replacement at Locations With a Chem-Milled Time-Limited Repair Installed

    At any location where a chem-milled time-limited repair is installed, do the actions specified in paragraphs (k)(1) and (k)(2) of this AD, at the applicable time specified in 1.E. “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.

    (1) Do internal and external detailed inspections of the time-limited repair for any crack, or loose or missing fasteners, in accordance with Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If any crack is found during the inspection, or if any loose or missing fastener is found, before further flight, do all applicable corrective actions, in accordance with Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as specified in paragraph (l)(1) of this AD.

    (2) Replace the time-limited repair with the permanent repair, in accordance with Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.

    (l) Exceptions to Service Information Specifications

    (1) Where Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, specifies to contact Boeing for repair instructions, this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (p) of this AD.

    (2) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, specifies a compliance time “after the date of Revision 2 of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (m) Optional Terminating Action

    (1) For airplanes that have accumulated 30,000 total flight cycles or fewer, or for airplanes on which supplemental type certificate (STC) ST0l697SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/0812969a86af879b8625766400600105/$FILE/ST01697SE.pdf) was installed and have accumulated 15,000 total flight cycles or fewer, accomplishment of the preventive modification specified in Part V of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, terminates the inspections required by paragraph (g) of this AD in the modified areas only.

    (2) Installation of a permanent repair as specified in Part III of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, or a time-limited repair as specified in Part IV of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, terminates the inspections required by paragraph (g) of this AD in the repaired areas only.

    (n) Installation Limitations of Preventive Modification

    As of the effective date of this AD, installation of the preventive modification specified in Boeing Alert Service Bulletin 737-53A1232, is prohibited on the airplanes identified in paragraphs (n)(1) and (n)(2) of this AD.

    (1) Airplanes that have accumulated more than 30,000 total flight cycles.

    (2) Airplanes which have installed STC ST01697SE and that have accumulated more than 15,000 total flight cycles.

    (o) Credit for Previous Actions

    This paragraph provides credit for the corresponding actions specified in paragraphs (g), (h), (i), (j), (k), and (m) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraph (o)(1), (o)(2), or (o)(3) of this AD.

    (1) Boeing Special Attention Service Bulletin 737-53A1232, dated April 2, 2007, which was incorporated by reference in AD 2008-12-04.

    (2) Boeing Special Attention Service Bulletin 737-53A1232, Revision 1, dated May 18, 2012, which is not incorporated by reference in this AD.

    (3) Boeing Special Attention Service Bulletin 737-53A1232, Revision 2, dated July 26, 2013, which is not incorporated by reference in this AD.

    (p) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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 (q)(1) of this AD. Information may be emailed to: [email protected]

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

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

    (4) AMOCs approved previously for repairs or preventive modifications for AD 2008-12-04 are approved as AMOCs for the installation of the repair or preventive modification specified in this AD, provided all post-repair or post-modification inspections are done at the applicable times specified in the AMOC, or in tables 1a, 1b, 2, and 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, whichever occurs first.

    (q) Related Information

    (1) For more information about this AD, contact Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on October 25, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-26164 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-8164; Airspace Docket No. 15-ANM-25] Proposed Establishment of Class E Airspace, Manti, UT AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Manti-Ephraim Airport, Manti, UT, to accommodate new Instrument Flight Rules (IFR) operations for standard instrument approach and departure procedures. The establishment of Class E airspace is necessary to support the safety and management of IFR operations at the airport.

    DATES:

    Comments must be received on or before January 6, 2017.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-8164; Airspace Docket No. 15-ANM-25, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov.

    FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Manti-Ephraim Airport, Manti, UT.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-8164/Airspace Docket No. 15-ANM-25.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Manti-Ephraim Airport, Manti, UT. Class E airspace would be established within a 4-mile radius of the Manti-Ephraim Airport, with segments extending from the 4-mile radius to 11 miles southwest of the airport, and 7.2 miles northeast of the airport. This airspace is necessary to support the development of IFR operations in standard instrument approach and departure procedures at the airport.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016, is amended as follows: Paragraph 6005: Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth: ANM UT E5 Manti, UT [New] Manti-Ephraim Airport, Utah (Lat. 39°19′53″ N., long. 111°36′45″ W.)

    That airspace extending upward from 700 feet above the surface within a 4-mile radius of Manti-Ephraim Airport, and that airspace 2 miles either side of the airport 225° bearing extending from the 4-mile radius to 11 miles southwest of the airport, and 1.8 miles east of the line beginning at lat. 39°17′50″ N., long. 111°39′27″ W., to lat. 39°14′35″ N., long. 111°41′06″ W., and that airspace beginning at the point where the 065° bearing from the airport intersects the 4-mile radius to lat. 39°26′34″ N., long. 111°31′41″ W., to lat. 39°26′54″ N., long. 111°36′20″ W., to the point where the 001° bearing from the airport intersects the 4-mile radius, thence clockwise along the 4-mile radius to the point of beginning.

    Issued in Seattle, Washington, on November 8, 2016. Tracey Johnson, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2016-27858 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-9266; Airspace Docket No. 16-ASO-5] Proposed Establishment of Class E Airspace; Kill Devil Hills, NC AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace at Kill Devil Hills, NC, to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures (SIAPs) serving First Flight Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the heliport.

    DATES:

    Comments must be received on or before January 6, 2017.

    ADDRESSES:

    Send comments on this rule to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg Ground Floor, Rm W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or 202-647-9826.You must identify the Docket No. FAA-2016-9266; Airspace Docket No. 16-ASO-5, at the beginning of your comments. You may also submit and review received comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

    FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at First Flight Airport, Kill Devil Hills, NC.

    Comments Invited

    Interested persons are invited to comment on this proposed rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the Internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9266; Airspace Docket No. 16-ASO-5.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal Holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Kill Devil Hills, NC, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for First Flight Airport. Controlled airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the airport would be established for IFR operations.

    Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, effective September 15, 2016, is amended as follows: Paragraph 6005. Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO NC E5 Kill Devil Hills, NC [New] First Flight Airport, NC (Lat. 36°1′3″ N., long. 75°40′18″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of First Flight Airport.

    Issued in College Park, Georgia, on November 7, 2016. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2016-27859 Filed 11-21-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 24 [Docket No. TTB-2016-0010; Notice No. 164] RIN 1513-AB61 Wine Treating Materials and Related Regulations AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau.

    ACT