Federal Register Vol. 81, No.225,

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.

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

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.

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.

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).

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.

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.

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.

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

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.

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.

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.

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.

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.

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

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).

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.

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

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.

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.

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.

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.

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.

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:

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

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.

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

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.”

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.

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.

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.

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.

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.

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.

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.

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

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.

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:

• 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?

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

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:

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.

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.

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.

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.

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.

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.

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.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain 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:

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.

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.

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.

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.

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.

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.

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.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

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.

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:

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.

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.

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.

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.

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.

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

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

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

For the reasons discussed above, I certify 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.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to 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.

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.

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

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.

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.

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.

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.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-53A1352, 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.

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

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

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

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

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

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

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

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

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

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

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

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.

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).

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.

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.

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.

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.

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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

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

We reviewed 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.

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

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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.

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.

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.

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.

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

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

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

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

We reviewed 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.

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

We estimate the following costs to comply with this AD:

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.

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

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

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

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

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

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

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

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

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

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.

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.

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.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

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.

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.

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.

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:

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.

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.

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.

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:

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).

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

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.

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”.

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.

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).

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.

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:

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.

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.

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.

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.

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.

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.

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 (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.

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.

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).

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.

Accordingly, for the reasons described in the preamble, HUD amends 24 CFR part 1000 as follows:

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.

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.

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.

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.

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.

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.”

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.

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.

This rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

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.

Accordingly, 32 CFR part 842 is amended as follows:

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.

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.

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.

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.

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.

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.

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.

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

This action does not impose an information collection burden under the PRA. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.

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.

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.

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

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

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

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

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This 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.

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.

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(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.

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.

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.

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.

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).

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

Therefore, 40 CFR chapter I is amended as follows:

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.

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.

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.

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.

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).

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).

The Motor Carrier Safety Improvement Act of 1999 1 (MCSIA) created FMCSA and transferred authority for motor carrier safety from the Federal Highway Administration.

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.

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.

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.

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.

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

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.

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.

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.

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).

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.