Federal Register Vol. 81, No.228,

Federal Register Volume 81, Issue 228 (November 28, 2016)

Page Range85401-85835
FR Document

81_FR_228
Current View
Page and SubjectPDF
81 FR 85835 - Eligibility of the Multinational Force and Observers To Receive Defense Articles and Defense Services Under the Foreign Assistance Act of 1961 and the Arms Export Control ActPDF
81 FR 85833 - Presidential Determination Pursuant to Section 1245(d)(4)(B) and (C) of the National Defense Authorization Act for Fiscal Year 2012PDF
81 FR 85564 - Sunshine Act MeetingsPDF
81 FR 85514 - Sunshine Act Meeting NoticePDF
81 FR 85632 - Notice of Availability of the Final Environmental Impact Statement and Proposed Land Use Plan Amendments for the Boardman to Hemingway Transmission Line Project, OregonPDF
81 FR 85655 - Sunshine Act MeetingPDF
81 FR 85522 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Cost Recovery ProgramsPDF
81 FR 85538 - Determination Under the Textile and Apparel Commercial Availability Provision of the United States-Colombia Trade Promotion Agreement (“U.S.-Colombia TPA”)PDF
81 FR 85673 - Revision of Form FHWA-1273PDF
81 FR 85667 - E.O. 13224 Designation of Abdullah Ahmed al-Meshedani, aka Abdullah Ahmed al-Mashhadani, aka Abdullah Ahmad al-Mashhadani, aka Abu Qassim, aka, Abu Kassem, aka Abu al-Qasem, as a Specially Designated Global TerroristPDF
81 FR 85668 - E.O. 13224 Designation of Tarcela Loya Vilchez, aka Comrade Olga as a Specially Designated Global TerroristPDF
81 FR 85642 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Ventilation Plan and Main Fan Maintenance RecordPDF
81 FR 85600 - Changes in Flood Hazard DeterminationsPDF
81 FR 85691 - Announcement Type: Notice and Request for Public CommentPDF
81 FR 85565 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 85565 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
81 FR 85584 - Agency Information Collection Activities Under Emergency Review by the Office of Management and BudgetPDF
81 FR 85556 - Certain New Chemicals; Receipt and Status Information for October 2016PDF
81 FR 85445 - Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category-Implementation Date ExtensionPDF
81 FR 85472 - Alkylpyrrolidones; Significant New Use RulePDF
81 FR 85603 - Changes in Flood Hazard DeterminationsPDF
81 FR 85561 - Office of Research and Development; Ambient Air Monitoring Reference and Equivalent Methods: Designation of One New Equivalent MethodPDF
81 FR 85401 - Petitions for Rulemaking, Amendment, or RepealPDF
81 FR 85551 - Proposed Collection; Comment RequestPDF
81 FR 85515 - Foreign-Trade Zone (FTZ) 249-Pensacola, Florida; Authorization of Production Activity; GE Renewables North America, LLC (Wind Turbine Nacelles, Hubs, and Drivetrains); Pensacola, FloridaPDF
81 FR 85674 - Identification and Mitigation of Hazards Through Job Safety Briefings and Hazard Recognition StrategiesPDF
81 FR 85538 - Procurement List Proposed Additions and DeletionsPDF
81 FR 85645 - Entergy Nuclear Operations, Inc.; Establishment of Atomic Safety and Licensing BoardPDF
81 FR 85671 - Petition for Exemption; Summary of Petition Received; Astraeus AerialPDF
81 FR 85671 - Petition for Exemption; Summary of Petition Received; Trimble Navigation LimitedPDF
81 FR 85672 - Petition for Exemption; Summary of Petition Received; Rare Air Drone ServicesPDF
81 FR 85668 - E.O. 13224 Designation of Jorge Quispe Palomino, aka Comrade Raul as a Specially Designated Global TerroristPDF
81 FR 85588 - Agency Information Collection Activities: Distribution of Continued Dumping and Subsidy Offset to Affected Domestic ProducersPDF
81 FR 85587 - Agency Information Collection Activities: Passenger and Crew ManifestPDF
81 FR 85587 - Agency Information Collection Activities: Lien NoticePDF
81 FR 85445 - Snapper-Grouper Fishery of the South Atlantic; 2016 Recreational Accountability Measure and Closure for South Atlantic Greater AmberjackPDF
81 FR 85540 - Procurement List Additions and DeletionsPDF
81 FR 85670 - Petition for Exemption; Summary of Petition Received; CK Aerial Photography LLCPDF
81 FR 85624 - North Carolina; Amendment No. 1 to Notice of an Emergency DeclarationPDF
81 FR 85446 - Snapper-Grouper Fishery of the South Atlantic; 2016 Recreational Closure for Hogfish in the South AtlanticPDF
81 FR 85591 - North Carolina; Amendment No. 12 to Notice of a Major Disaster DeclarationPDF
81 FR 85624 - North Carolina; Amendment No. 14 to Notice of a Major Disaster DeclarationPDF
81 FR 85624 - North Carolina; Amendment No. 13 to Notice of a Major Disaster DeclarationPDF
81 FR 85672 - Petition for Exemption; Summary of Petition Received; Leading Edge Associates, Inc.PDF
81 FR 85606 - Changes in Flood Hazard DeterminationsPDF
81 FR 85673 - Petition for Exemption; Summary of Petition Received: Aero Medical Products Mfg., Inc.PDF
81 FR 85610 - Proposed Flood Hazard DeterminationsPDF
81 FR 85618 - Proposed Flood Hazard DeterminationsPDF
81 FR 85621 - Proposed Flood Hazard DeterminationsPDF
81 FR 85613 - Changes in Flood Hazard DeterminationsPDF
81 FR 85596 - Changes in Flood Hazard DeterminationsPDF
81 FR 85589 - Changes in Flood Hazard DeterminationsPDF
81 FR 85612 - Final Flood Hazard DeterminationsPDF
81 FR 85598 - Final Flood Hazard DeterminationsPDF
81 FR 85592 - Changes in Flood Hazard DeterminationsPDF
81 FR 85632 - Notice of Availability of the Record of Decision for the Roan Plateau Planning Area Resource Management Plan Amendment and Final Supplemental Environmental Impact Statement, ColoradoPDF
81 FR 85560 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Pesticide Environmental Stewardship Program Annual Measures ReportingPDF
81 FR 85559 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Reporting and Recordkeeping Requirements for National Volatile Organic Compound Emission Standards for Automobile Refinish CoatingsPDF
81 FR 85667 - Virginia Disaster #VA-00066PDF
81 FR 85668 - 30-Day Notice of Proposed Information Collection: Disclosure of Violations of the Arms Export Control ActPDF
81 FR 85636 - Notice of Intent To Repatriate Cultural Items: Peabody Museum of Natural History, Yale University, New Haven, CTPDF
81 FR 85638 - Notice of Inventory Completion: Hood Museum of Art, Dartmouth College, Hanover, NHPDF
81 FR 85521 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
81 FR 85524 - Caribbean Fishery Management Council; Public MeetingPDF
81 FR 85537 - Caribbean Fishery Management Council; Public MeetingPDF
81 FR 85646 - University of Texas-Austin; Nuclear Engineering Teaching Laboratory TRIGA Research ReactorPDF
81 FR 85644 - Seeks Qualified Candidates for the Advisory Committee on Reactor SafeguardsPDF
81 FR 85520 - Supercalendered Paper From Canada: Preliminary Results of Countervailing Duty Expedited ReviewPDF
81 FR 85515 - Glycine From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of the Antidumping Duty Administrative Review; 2011-2012PDF
81 FR 85551 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Child Care Access Means Parents in School Application PackagePDF
81 FR 85516 - Aluminum Extrusions From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 85553 - Orders Granting Authority To Import and Export Natural Gas, To Export Liquefied Natural Gas, Vacating Authority, Denying Request for Rehearing, and Denying Motion for Opinion and Order on Application During October 2016PDF
81 FR 85552 - Application To Export Electric Energy; SocїVolta Inc.PDF
81 FR 85546 - Government-Industry Advisory Panel; Notice of Federal Advisory Committee MeetingPDF
81 FR 85640 - Certain High-Potency Sweeteners, Processes for Making Same, and Products Containing Same; Institution of InvestigationPDF
81 FR 85581 - Announcement of Requirements and Registration for “Storytelling About Health and Wellness in American Indian and Alaska Native Communities” ChallengePDF
81 FR 85586 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 85542 - 36(b)(1) Arms Sales NotificationPDF
81 FR 85666 - Kansas Disaster Number KS-00098PDF
81 FR 85667 - California Disaster #CA-00243 Declaration of Economic InjuryPDF
81 FR 85644 - Quarterly Public MeetingPDF
81 FR 85548 - 36(b)(1) Arms Sales NotificationPDF
81 FR 85685 - Request for CommentsPDF
81 FR 85639 - Hardwood Plywood From China; Institution of Antidumping and Countervailing Duty Investigations and Scheduling of Preliminary Phase InvestigationsPDF
81 FR 85624 - Agency Information Collection Activities: Extension, Without Changes, of an Existing Information Collection; Comment Request; OMB Control No. 1653-0048PDF
81 FR 85541 - Western Hemisphere Institute for Security Cooperation Board of Visitors Meeting NoticePDF
81 FR 85537 - Submission for OMB Review; Comment Request; Deposit of Biological MaterialsPDF
81 FR 85580 - Decision To Evaluate a Petition To Designate a Class of Employees From Metals & Controls Corp. in Attleboro, Massachusetts, To Be Included in the Special Exposure CohortPDF
81 FR 85676 - Private Enterprise ParticipationPDF
81 FR 85508 - Submission for OMB Review; Comment RequestPDF
81 FR 85681 - General Motors LLC, Receipt of Petition for Inconsequentiality and Decision Granting Request To File Out of Time and Request for Deferral of DeterminationPDF
81 FR 85510 - Notice for Inviting Applications for the Position of National Fund Manager for the Healthy Food Financing InitiativePDF
81 FR 85564 - Notice of Filing of Complaint and AssignmentPDF
81 FR 85565 - Granting of Request for Early Termination of the Waiting Period Under the Premerger Notification RulesPDF
81 FR 85568 - Granting of Request for Early Termination of the Waiting Period Under the Premerger Notification RulesPDF
81 FR 85585 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 85580 - Advisory Committee on Interdisciplinary, Community-Based LinkagesPDF
81 FR 85562 - Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0112, -0125, -0127 & -0175)PDF
81 FR 85554 - Combined Notice Of Filings #2PDF
81 FR 85554 - Combined Notice of Filings #1PDF
81 FR 85555 - Stored Solar J&WE, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 85555 - Combined Notice of FilingsPDF
81 FR 85663 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order Granting Approval of Proposed Rule Change To Modify Rule IM-5900-7 To Adjust the Entitlement to Services of Acquisition CompaniesPDF
81 FR 85659 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Rules 7.1 and 7.2, and NYSE Arca Equities Rules 7.1 and 7.2PDF
81 FR 85656 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC (“BOX”) Options FacilityPDF
81 FR 85650 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Provide a Process for an Expedited Proceeding and Adopt a Rule To Prohibit Disruptive Quoting and Trading ActivityPDF
81 FR 85657 - Order Granting Limited Exemption From Exchange Act Rule 15c2-11 to Certain Interdealer Quotation Systems Pursuant to Exchange Act Rule 15c2-11(h)PDF
81 FR 85655 - In the Matter of the New York Stock Exchange LLC for an Order Granting the Approval of Proposed Rule Change Adopting Maximum Fees Member Organizations May Charge in Connection With the Distribution of Investment Company Shareholder Reports Pursuant to Any Electronic Delivery Rules Adopted by the Securities and Exchange Commission; Order Scheduling Filing of Statements on ReviewPDF
81 FR 85693 - Agency Information Collection Activity Under OMB Review (Supportive Services for Veteran Families (SSVF) Program) Application for Supportive Services Grant)PDF
81 FR 85641 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: STOP Formula Grant Program Match Documentation WorksheetPDF
81 FR 85514 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 85580 - Notice of Listing of Members of the Food and Drug Administration's Performance Review BoardPDF
81 FR 85525 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Waterfront Improvement ProjectsPDF
81 FR 85638 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
81 FR 85627 - 30-Day Notice of Proposed Information Collection: Electronic Line of Credit Control System (eLOCCS) System AccessPDF
81 FR 85626 - 30-Day Notice of Proposed Information Collection: Surveys of Community Development Marketplace Project Inventory and Recipients and Providers of HUD Technical Assistance and TrainingPDF
81 FR 85579 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Application for Participation in the Medical Device Fellowship ProgramPDF
81 FR 85573 - Report on the Performance of Drug and Biologics Firms in Conducting Postmarketing Requirements and Commitments; AvailabilityPDF
81 FR 85628 - 30-Day Notice of Proposed Information Collection: Federal Labor Standards Payee Verification and Payment ProcessingPDF
81 FR 85627 - 30-Day Notice of Proposed Information Collection: Final Endorsement of Credit InstrumentPDF
81 FR 85625 - 30-Day Notice of Proposed Information Collection: Multifamily Mortgagee's Application for Insurance BenefitsPDF
81 FR 85455 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; New Regulations for Architectural and Industrial Maintenance CoatingsPDF
81 FR 85560 - Notice of Approval of Clean Air Act Prevention of Significant Deterioration Permit for Ocotillo Power PlantPDF
81 FR 85570 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 85571 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 85572 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 85410 - Air Quality Plans; Tennessee; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
81 FR 85457 - Approval and Promulgation of Air Quality Plans; State of Maryland; Control of Emissions From Existing Hospital/Medical/Infectious Waste Incineration UnitsPDF
81 FR 85684 - Pipeline Safety: Meeting of the Voluntary Information-Sharing System Working GroupPDF
81 FR 85417 - Revision of Certain Federal Water Quality Criteria Applicable to WashingtonPDF
81 FR 85508 - Public Quarterly Meeting of the Board of DirectorsPDF
81 FR 85643 - Proposed Extension of Information Collection; Application for Waiver of Surface Sanitary Facilities' Requirements (Pertaining to Coal Mines)PDF
81 FR 85509 - Notice of Intent To Request Revision and Extension of a Currently Approved Information CollectionPDF
81 FR 85629 - Endangered and Threatened Wildlife and Plants; Enhancement of Survival Permit Application; Draft Candidate Conservation Agreement with Assurances for Eight Species in Northeastern Wyoming and Southeastern Montana, with Integrated Candidate Conservation Agreement and Conservation Agreement; Draft Environmental AssessmentPDF
81 FR 85581 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 85581 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 85584 - Center For Scientific Review; Notice of Closed MeetingsPDF
81 FR 85402 - Revision of Freedom of Information Act RegulationsPDF
81 FR 85693 - Proposed Collection of Information: Application by Survivors for Payment of Bond or Check Issued Under the Armed Forces Leave Act of 1946, as AmendedPDF
81 FR 85692 - Proposed Collection of Information: Request To Reissue U.S. Savings Bonds to a Personal TrustPDF
81 FR 85692 - Proposed Collection of Information: Minority Bank Deposit Program (MBDP) Certification Form for AdmissionPDF
81 FR 85450 - Dollar-Value LIFO Regulations: Inventory Price Index Computation (IPIC) Method PoolsPDF
81 FR 85488 - Endangered and Threatened Wildlife and Plants; Listing the Hyacinth MacawPDF
81 FR 85478 - Vehicle Defect Reporting RequirementsPDF
81 FR 85440 - Addition of Hexabromocyclododecane (HBCD) Category; Community Right-to-Know Toxic Chemical Release ReportingPDF
81 FR 85459 - Internet Posting of and Confidentiality Determinations for Hazardous Waste Export and Import DocumentsPDF
81 FR 85732 - Hazardous Waste Generator Improvements RulePDF
81 FR 85696 - Hazardous Waste Export-Import RevisionsPDF
81 FR 85448 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 85678 - Deepwater Port License Application: Delfin LNG LLC; Delfin LNG Deepwater Port; Final Application Public Hearing and Final Environmental Impact StatementPDF
81 FR 85438 - Determination of Full Program Adequacy of Washington's Municipal Solid Waste Landfill Permitting ProgramPDF
81 FR 85459 - Determination of Full Program Adequacy of Washington's Municipal Solid Waste Landfill Permit ProgramPDF

Issue

81 228 Monday, November 28, 2016 Contents African African Development Foundation NOTICES Meetings: Board of Directors, 85508 2016-28423 Agriculture Agriculture Department See

National Agricultural Statistics Service

See

Rural Business-Cooperative Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85508-85509 2016-28414 2016-28477
Army Army Department NOTICES Meetings: Western Hemisphere Institute for Security Cooperation Board of Visitors, 85541-85542 2016-28482 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85570-85572 2016-28433 2016-28434 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Survey of Child and Adolescent Well-Being—Third Cohort, 85572 2016-28431 Civil Rights Civil Rights Commission NOTICES Meetings: Sunshine Act, 85514 2016-28695 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 85538-85541 2016-28557 2016-28545 Committee Implementation Committee for the Implementation of Textile Agreements NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Textile and Apparel Commercial Availability Provision of United States-Colombia Trade Promotion Agreement, 85538 2016-28596 Community Development Community Development Financial Institutions Fund NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85691-85692 2016-28572 Defense Department Defense Department See

Army Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85551 2016-28560 Arms Sales, 85542-85546, 85548-85551 2016-28487 2016-28493 Meetings: Government-Industry Advisory Panel, 85546-85548 2016-28499
Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 85514-85515 2016-28453 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Child Care Access Means Parents in School Application Package, 85551-85552 2016-28503 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Applications to Export Electric Energy: SociVolta Inc., 85552 2016-28500 Authorizations to Export and Import Liquefied Natural Gas: TransCanada Pipelines, Ltd.; Sabine Pass Liquefaction, LLG; Cameron LNG, LLC; et al., 85553-85554 2016-28501
Environmental Protection Environmental Protection Agency RULES Addition of Hexabromocyclododecane Category: Community Right-to-Know Toxic Chemical Release Reporting, 85440-85445 2016-28102 Air Quality State Implementation Plans; Approvals and Promulgations: Air Quality Plans; Tennessee; Infrastructure Requirements for 2010 Sulfur Dioxide National Ambient Air Quality Standard, 85410-85417 2016-28429 Determinations of Full Program Adequacy: Washington's Municipal Solid Waste Landfill Permitting Program, 85438-85440 2016-26754 Effluent Limitations Guidelines and Standards: Oil and Gas Extraction Point Source Category—Implementation Date Extension; Withdrawal, 85445 2016-28566 Hazardous Waste Export-Import Revisions, 85696-85729 2016-27428 Hazardous Waste Generator Improvements Rule, 85732-85829 2016-27429 Revision of Certain Federal Water Quality Criteria Applicable to Washington, 85417-85437 2016-28424 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Maryland; Control of Emissions from Existing Hospital/Medical/Infectious Waste Incineration Units, 85457-85459 2016-28428 Maryland; New Regulations for Architectural and Industrial Maintenance Coatings, 85455-85457 2016-28436 Determinations of Full Program Adequacy: Washington's Municipal Solid Waste Landfill Permit Program, 85459 2016-26750 Internet Posting of and Confidentiality Determinations: Hazardous Waste Export and Import Documents, 85459-85471 2016-27431 Significant New Use: Alkylpyrrolidones, 85472-85478 2016-28565 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pesticide Environmental Stewardship Program Annual Measures Reporting, 85560-85561 2016-28517 Reporting and Recordkeeping Requirements for National Volatile Organic Compound Emission Standards for Automobile Refinish Coatings, 85559-85560 2016-28516 Ambient Air Monitoring Reference and Equivalent Methods: Designation of One New Equivalent Method, 85561-85562 2016-28562 Approval of Clean Air Act Prevention of Significant Deterioration Permit for Ocotillo Power Plant, 85560 2016-28435 Certain New Chemicals: Receipt and Status Information for October 2016, 85556-85559 2016-28568 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: The Boeing Co. Airplanes, 85448-85450 2016-27308 NOTICES Petitions for Exemption; Summaries: Aero Medical Products Mfg., Inc., 85673 2016-28532 Astraeus Aerial, 85671 2016-28554 CK Aerial Photography LLC, 85670-85671 2016-28543 Leading Edge Associates, Inc., 85672-85673 2016-28534 Petitions for Exemptions; Summaries: Rare Air Drone Services, 85672 2016-28552 Trimble Navigation Limited, 85671-85672 2016-28553 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85562-85564 2016-28468 Federal Election Federal Election Commission NOTICES Meetings: Sunshine Act, 85564 2016-28727 Federal Emergency Federal Emergency Management Agency NOTICES Emergency and Related Determinations: North Carolina; Amendment No. 1, 85624 2016-28541 Flood Hazard Determinations, 85598-85599, 85612-85613 2016-28524 2016-28525 Flood Hazard Determinations; Changes, 85589-85598, 85600-85610, 85613-85618 2016-28523 2016-28526 2016-28527 2016-28528 2016-28533 2016-28563 2016-28573 Flood Hazard Determinations; Proposals, 85610-85612, 85618-85623 2016-28529 2016-28530 2016-28531 Major Disaster Declarations: North Carolina; Amendment No. 12, 85591 2016-28537 North Carolina; Amendment No. 13, 85624 2016-28535 North Carolina; Amendment No. 14, 85624 2016-28536 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 2016-28462 85554-85555 2016-28464 2016-28465 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Stored Solar J and WE, LLC, 85555-85556 2016-28463 Federal Highway Federal Highway Administration NOTICES Revision of Form FHWA-1273, 85673-85674 2016-28586 Federal Maritime Federal Maritime Commission NOTICES Complaints and Assignments: Connie Lane Christy and Christy Collection International, Inc. on behalf of Annie Grace Foundation for Children of Bali Indonesia v. Air 7 Seas Transport Logistics, Inc., 85564-85565 2016-28474 Federal Railroad Federal Railroad Administration NOTICES Safety Advisories: Identification and Mitigation of Hazards through Job Safety Briefings and Hazard Recognition Strategies, 85674-85676 2016-28558 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 85565 2016-28571 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 85565 2016-28570 Federal Trade Federal Trade Commission NOTICES Early Terminations of the Waiting Periods under Premerger Notification Rules, 85565-85570 2016-28472 2016-28473 Federal Transit Federal Transit Administration NOTICES Private Enterprise Participation, 85676-85678 2016-28479 Financial Stability Financial Stability Oversight Council RULES Freedom of Information Act Regulations, 85402-85410 2016-28413 Fiscal Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application by Survivors for Payment of Bond or Check Issued, 85693 2016-28411 Minority Bank Deposit Program, 85692-85693 2016-28409 Request to Reissue U.S. Savings Bonds to Personal Trust, 85692 2016-28410 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Listing Hyacinth Macaw, 85488-85507 2016-28318 NOTICES Endangered and Threatened Wildlife and Plants: Enhancement of Survival Permit Application, etc., 85629-85631 2016-28418 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Participation in Medical Device Fellowship Program, 85579-85580 2016-28443 Members of Performance Review Board, 85580 2016-28452 Report on Performance of Drug and Biologics Firms in Conducting Postmarketing Requirements and Commitments; Availability, 85573-85579 2016-28442 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: GE Renewables North America, LLC, Foreign-Trade Zone 249, Pensacola, FL, 85515 2016-28559 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Decisions to Evaluate Petitions to Designate Classes of Employees for Inclusion in Special Exposure Cohort: Metals and Controls Corp. in Attleboro, MA, 85580-85581 2016-28480
Health Resources Health Resources and Services Administration NOTICES Meetings: Advisory Committee on Interdisciplinary, Community-Based Linkages, 85580 2016-28469 Homeland Homeland Security Department See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

See

U.S. Immigration and Customs Enforcement

RULES Petitions for Rulemaking, Amendment, or Repeal, 85401 2016-28561
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Electronic Line of Credit Control System System Access, 85627-85628 2016-28448 Federal Labor Standards Payee Verification and Payment Processing, 85628-85629 2016-28440 Final Endorsement of Credit Instrument, 85627 2016-28439 Multifamily Mortgagee's Application for Insurance Benefits, 85625-85626 2016-28438 Surveys of Community Development Marketplace Project Inventory and Recipients and Providers of HUD Technical Assistance and Training, 85626-85627 2016-28446 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service PROPOSED RULES Dollar-Value Last-In, First-Out Regulations: Inventory Price Index Computation Method Pools, 85450-85455 2016-28375 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Aluminum Extrusions from People's Republic of China, 85516-85520 2016-28502 Glycine from People's Republic of China, 85515-85516 2016-28504 Supercalendered Paper from Canada, 85520-85521 2016-28505 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Hardwood Plywood from China, 85639-85640 2016-28485 Investigations; Determinations, Modifications, and Rulings, etc.: High-Potency Sweeteners, Processes for Making Same, and Products Containing Same, 85640-85641 2016-28498 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: STOP Formula Grant Program Match Documentation Worksheet, 85641-85642 2016-28454 Labor Department Labor Department See

Mine Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Ventilation Plan and Main Fan Maintenance Record, 85642-85643 2016-28576
Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Boardman to Hemingway Transmission Line Project, Oregon; Land Use Plan Amendments, 85632-85636 2016-28691 Record of Decision for Roan Plateau Planning Area Resource Management Plan Amendment, CO, 85632 2016-28519 Maritime Maritime Administration NOTICES Deepwater Port Licenses: Delfin LNG, LLC; Delfin LNG Deepwater Port, 85678-85681 2016-27297 Mine Mine Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Waiver of Surface Sanitary Facilities' Requirements, 85643-85644 2016-28422 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85509-85510 2016-28419 National Highway National Highway Traffic Safety Administration PROPOSED RULES Vehicle Defect Reporting Requirements, 85478-85488 2016-28125 NOTICES Petitions for Decisions of Inconsequential Noncompliance: General Motors, LLC, 85681-85684 2016-28476 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 85581, 85584 2016-28415 2016-28416 National Institute on Aging, 85581 2016-28417 Requirements and Registration for Storytelling about Health and Wellness in American Indian and Alaska Native Communities Challenge, 85581-85583 2016-28497 National Oceanic National Oceanic and Atmospheric Administration RULES Snapper-Grouper Fishery of the South Atlantic: 2016 Recreational Accountability Measure and Closure for South Atlantic Greater Amberjack, 85445-85446 2016-28546 2016 Recreational Closure for Hogfish in South Atlantic, 85446-85447 2016-28539 NOTICES Fisheries of the Exclusive Economic Zone Off Alaska Bering Sea and Aleutian Islands Management Area; Cost Recovery Programs, 85522-85524 2016-28598 Meetings: Caribbean Fishery Management Council, 85524-85525, 85537 2016-28508 2016-28509 Mid-Atlantic Fishery Management Council, 85521-85522 2016-28510 Takes of Marine Mammals: Incidental to Specified Activities; Waterfront Improvement Projects, 85525-85537 2016-28451 National Park National Park Service NOTICES Inventory Completions: Hood Museum of Art, Dartmouth College, Hanover, NH, 85638 2016-28511 National Register of Historic Places: National Register of Historic Places; Pending Nominations and Related Actions, 85638-85639 2016-28449 Repatriation of Cultural Items: Peabody Museum of Natural History, Yale University, New Haven, CT, 85636-85637 2016-28512 National Women's National Women's Business Council NOTICES Meetings: National Women's Business Council; Teleconference and Webinar, 85644 2016-28488 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Atomic Safety and Licensing Boards: Indian Point Nuclear Generating Unit No. 3 and James A. Fitzpatrick Nuclear Power Plant, 85645 2016-28556 License Applications; Renewals: Nuclear Engineering Teaching Laboratory TRIGA Research Reactor, University of Texas, Austin, TX, 85646-85650 2016-28507 Requests for Nominations: Advisory Committee on Reactor Safeguards, 85644-85645 2016-28506 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Deposit of Biological Materials, 85537 2016-28481 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Voluntary Information-sharing System Working Group, 85684-85685 2016-28425 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Defense and National Security: Multinational Force and Observers; Eligibility to Receive Defense Articles and Services (Presidential Determination No. 2017-02 of November 16, 2016), 85835 2016-28796 National Defense Authorization Act for Fiscal Year 2012 (Presidential Determination No. 2017-01 of November 14, 2016), 85831-85834 2016-28795 Rural Business Rural Business-Cooperative Service NOTICES Request for Applications: National Fund Manager for Healthy Food Financing Initiative, 85510-85514 2016-28475 Securities Securities and Exchange Commission NOTICES Meetings Sunshine Act, 85655 2016-28642 Orders: Granting Limited Exemption from Exchange Act Rule to Certain Interdealer Quotation Systems, 85657-85659 2016-28457 New York Stock Exchange, LLC, 85655-85656 2016-28456 Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange, LLC, 85656-85657 2016-28459 Financial Industry Regulatory Authority, Inc., 85650-85655 2016-28458 NASDAQ Stock Market, LLC, 85663-85666 2016-28461 NYSE Arca, Inc., 85659-85663 2016-28460 Small Business Small Business Administration NOTICES Disaster Declarations: California; Amendment 2, 85667 2016-28490 Major Disaster Declarations: Kansas; Amendment 1, 85666-85667 2016-28491 Virginia, 85667 2016-28515 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Disclosure of Violations of Arms Export Control Act, 85668-85670 2016-28514 Designations as Global Terrorists: Abdullah Ahmed al-Meshedani, aka Abdullah Ahmed al-Mashhadani, aka Abdullah Ahmad al-Mashhadani, aka Abu Qassim, aka, Abu Kassem, aka Abu al-Qasem, 85667-85668 2016-28585 Jorge Quispe Palomino, aka Comrade Raul, 85668 2016-28551 Tarcela Loya Vilchez, aka Comrade Olga, 85668 2016-28583 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85584-85587 2016-28470 2016-28496 2016-28569 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

Federal Transit Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85685-85691 2016-28486
Treasury Treasury Department See

Community Development Financial Institutions Fund

See

Fiscal Service

See

Internal Revenue Service

Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 85588-85589 2016-28549 Lien Notice, 85587 2016-28547 Passenger and Crew Manifest, 85587-85588 2016-28548 Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 85624-85625 2016-28484 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Supportive Services for Veteran Families Program Application for Supportive Services Grant, 85693-85694 2016-28455 Separate Parts In This Issue Part II Environmental Protection Agency, 85696-85729 2016-27428 Part III Environmental Protection Agency, 85732-85829 2016-27429 Part IV Presidential Documents, 2016-28796 85831-85835 2016-28795 Reader Aids

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

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

81 228 Monday, November 28, 2016 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 3 [Docket No. DHS-2009-0009] RIN 1601-AA56 Petitions for Rulemaking, Amendment, or Repeal AGENCY:

Office of the Secretary, DHS.

ACTION:

Final rule.

SUMMARY:

Pursuant to the Administrative Procedure Act, the Department of Homeland Security (DHS or Department) is adopting a process under which interested persons may petition the Department to issue, amend, or repeal a rule.

DATES:

This rule is effective December 28, 2016.

FOR FURTHER INFORMATION CONTACT:

Danny Fischler, Office of the General Counsel, U.S. Department of Homeland Security, 202-282-9822.

SUPPLEMENTARY INFORMATION:

I. Background and Response to Comment

The Administrative Procedure Act (APA) requires that each agency give interested persons the right to petition the agency for the issuance, amendment, or repeal of a rule. 5 U.S.C. 553(e). Such a petition is known as a “rulemaking petition.” On July 21, 2016, DHS published an interim final rule describing its procedures for receiving and responding to rulemaking petitions.1 81 FR 47285. The interim final rule set forth specific formatting requirements, including a requirement to prominently mark a rulemaking petition as such; identified the only two mailing addresses at which DHS will accept rulemaking petitions; provided guidelines for the content of rulemaking petitions; and described the process by which DHS will respond to rulemaking petitions. DHS welcomed public comments on the interim final rule until September 19, 2016. DHS received two timely-filed public comments, only one of which was within the scope of the rulemaking.

1 As explained in the preamble to the interim final rule, two components of DHS have component-specific regulations governing rulemaking petitions. See 33 CFR 1.05-20 (U.S. Coast Guard); 44 CFR 1.17, 1.18 (Federal Emergency Management Agency). The interim final rule left those regulations in place. This rule continues to leave those regulations in place.

The one in-scope comment stated general support for the interim final rule, but requested that DHS allow petitioners to submit rulemaking petitions online in addition to by physical mail. The commenter stated that online communication is more efficient. DHS agrees that in certain contexts online communication is more efficient than physical mail, but has decided to retain the requirement to submit rulemaking petitions by physical mail. In this context, DHS believes that physical mail is a more effective and appropriate means of submission to the agency. A properly filed rulemaking petition is a legal document giving rise to specific legal obligations on the part of the agency. See 5 U.S.C. 553(e), 555(e), 702, 706. DHS believes a more formal means of communication is therefore appropriate. In addition, DHS believes that physical mail imposes a minimal additional burden as compared to online communication.

DHS has determined that no changes to the interim final rule are necessary. Accordingly, this rule finalizes the interim final rule without change.2

2 DHS incorporates by reference the statement of basis and purpose accompanying the proposed rule. 81 FR 47285-47286.

II. Regulatory Analyses A. Administrative Procedure Act

This rule, like the interim final rule that preceded it, is a rule of agency organization, procedure, or practice under the Administrative Procedure Act, 5 U.S.C. 553(b)(A). Although the Administrative Procedure Act did not require DHS to provide a period of advance notice and opportunity for public comment, DHS invited public comment on the interim final rule, and has responded to such comment in this final rule.

B. Executive Order 12866 Assessment (Regulatory Planning and Review)

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action for the purposes of Executive Order 12866, as amended, and therefore review by the Office of Management and Budget is not necessary.

This rule describes how to petition DHS to issue, amend, or repeal a rule. The rule's qualitative benefits include additional transparency and accountability for the public. The rule imposes no additional costs on the public or the government.

C. Regulatory Flexibility Act

This rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

D. Paperwork Reduction Act

This rule does not contain or modify any collections of information under the Paperwork Reduction Act. See 44 U.S.C. 3501 et seq.

List of Subjects in 6 CFR Part 3

Administrative practice and procedure.

For the reasons set forth in the preamble, the interim final rule adding 6 CFR part 3, which was published at 81 FR 47285 on July 21, 2016, is adopted as a final rule without change.

Jeh Charles Johnson, Secretary.
[FR Doc. 2016-28561 Filed 11-25-16; 8:45 am] BILLING CODE 9110-9B-P
FINANCIAL STABILITY OVERSIGHT COUNCIL 12 CFR Part 1301 Revision of Freedom of Information Act Regulations AGENCY:

Financial Stability Oversight Council.

ACTION:

Interim final rule.

SUMMARY:

This rule makes revisions to the regulations of the Financial Stability Oversight Council (the “Council”) under the Freedom of Information Act (“FOIA”) as required by the FOIA Improvement Act of 2016.

DATES:

Effective date: November 28, 2016.

Comment date: Written comments on the rule must be received on or before January 27, 2017.

FOR FURTHER INFORMATION CONTACT:

Jonah Crane, Deputy Assistant Secretary, Financial Stability Oversight Council, U.S. Treasury Department, (202) 622-7811; Stephen Milligan, Attorney-Advisor, U.S. Treasury Department, (202) 622-4051.

ADDRESSES:

Interested persons are invited to submit comments regarding this interim final rule according to the instructions below. All submissions must refer to the document title.

Electronic submission of comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt, and enables the Council to make them available to the public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

Mail. Send comments to Financial Stability Oversight Council, 1500 Pennsylvania Avenue NW., Washington, DC 20220.

Public inspection of comments. All properly submitted comments will be available for inspection and downloading at http://www.regulations.gov.

Additional instructions. In general, comments received, including attachments and other supporting materials, are part of the public record and are available to the public. Do not submit any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.

SUPPLEMENTARY INFORMATION:

On June 30, 2016, the President signed into law the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (2016). The revisions to the Council's FOIA regulations implement changes mandated by the statute, as described below.

The rule revises section 1301.2(a)(2) and sections 1301.4(a), (b), (d), and (e) to provide that materials required to be made available for public inspection will now be available in an electronic format. The rule revises section 1301.2(c)(2) to provide that the Council will withhold records or information under the FOIA only when it reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law. Revised section 1301.2(c)(2) also provides that whenever the Council determines that full disclosure of a requested record is not possible, the Council will consider whether partial disclosure is possible and will take reasonable steps to segregate and release nonexempt material.

The rule revises section 1301.7(e)(2) to provide that, in the event the Council requires additional time beyond a ten-day extension to process a request or appeal, the Council will make available its FOIA Public Liaison, who will assist in defining the desired scope of the request, and will notify the requester of the right to seek dispute resolution services from the Office of Government Information Services. Similarly, the rule revises sections 1301.8(b)(2), (3), and (4) to provide for the Council to advise requesters of their right to seek assistance from the FOIA Public Liaison and, in the case of a denied request or when no records can be found, to seek dispute resolution services offered by the Office of Government Information Services.

The rule also revises section 1301.11(b) to extend the deadline for seeking an appeal to 90 days of the date of the initial determination or the date of the letter transmitting the last records released, whichever is later and adds a new paragraph (f) to section 1301.11 to provide information as to how requesters may seek dispute resolution. Finally, the rule revises section 1301.12(e)(4) with respect to the circumstances under which the Council will waive fees if it does not comply with the time limits for responding to requests and appeals.

Procedural Matters 1. Administrative Procedure Act

The Council finds that good cause exists, pursuant to 5 U.S.C. 553(b), that notice and public comment on this rulemaking would be unnecessary and contrary to the public interest because the revisions to the Council's FOIA regulations are limited to those mandated by the FOIA Improvement Act of 2016 and the Council is not exercising any discretion in issuing these revisions. While the interim final rule is effective immediately upon publication, the Council is inviting public comment on the interim final rule during a sixty-day period and will consider all comments in developing a final rule.

2. Regulatory Flexibility Act

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

3. Executive Order 12866

This rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866.

List of Subjects in 12 CFR Part 1301

Freedom of Information.

Financial Stability Oversight Council Authority and Issuance For the reasons set forth in the preamble, the Financial Stability Oversight Council revises part 1301 to 12 CFR chapter XIII to read as follows: PART 1301—FREEDOM OF INFORMATION Sec. 1301.1 General. 1301.2 Information made available. 1301.3 Publication in the Federal Register. 1301.4 Public inspection. 1301.5 Requests for Council records. 1301.6 Responsibility for responding to requests for Council records. 1301.7 Timing of responses to requests for Council records. 1301.8 Responses to requests for Council records. 1301.9 Classified information. 1301.10 Requests for business information provided to the Council. 1301.11 Administrative appeals and dispute resolution. 1301.12 Fees for processing requests for Council records. Authority:

12 U.S.C. 5322; 5 U.S.C. 552.

§ 1301.1 General.

This part contains the regulations of the Financial Stability Oversight Council (the “Council”) implementing the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, as amended. These regulations set forth procedures for requesting access to records maintained by the Council. This part should be read together with the FOIA, which provides additional information about this topic.

§ 1301.2 Information made available.

(a) General. The FOIA provides for access to records developed or maintained by a Federal agency. The provisions of the FOIA are intended to assure the right of the public to information. Generally, this section divides agency records into three major categories and provides methods by which each category of records is to be made available to the public. The three major categories of records are as follows:

(1) Information required to be published in the Federal Register (see § 1301.3);

(2) Information required to be made available for public inspection in an electronic format or, in the alternative, to be published and offered for sale (see § 1301.4); and

(3) Information required to be made available to any member of the public upon specific request (see §§ 1301.5 through 1301.12).

(b) Right of access. Subject to the exemptions and exclusions set forth in the FOIA (5 U.S.C. 552(b) and (c)), and the regulations set forth in this subpart, any person shall be afforded access to records.

(c) Exemptions. (1) The disclosure requirements of 5 U.S.C. 552(a) do not apply to certain records which are exempt under 5 U.S.C. 552(b); nor do the disclosure requirements apply to certain records which are excluded under 5 U.S.C. 552(c).

(2) The Council shall withhold records or information under the FOIA only when it reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law. Whenever the Council determines that full disclosure of a requested record is not possible, the Council shall consider whether partial disclosure is possible and shall take reasonable steps to segregate and release nonexempt information. Nothing in this paragraph requires disclosure of information that is otherwise exempted from disclosure under 12 U.S.C. 552(b)(3).

§ 1301.3 Publication in the Federal Register.

Subject to the application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and (c)) and subject to the limitations provided in 5 U.S.C. 552(a)(1), the Council shall state, publish and maintain current in the Federal Register for the guidance of the public:

(a) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(b) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Council; and

(e) Each amendment, revision, or repeal of matters referred to in paragraphs (a) through (d) of this section.

§ 1301.4 Public inspection.

(a) In general. Subject to the application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and (c)), the Council shall, in conformance with 5 U.S.C. 552(a)(2), make available for public inspection in an electronic format, or, in the alternative, promptly publish and offer for sale:

(1) Final opinions, including concurring and dissenting opinions, and orders, made in the adjudication of cases;

(2) Those statements of policy and interpretations which have been adopted by the Council but which are not published in the Federal Register;

(3) Its administrative staff manuals and instructions to staff that affect a member of the public;

(4) Copies of all records, regardless of form or format, that have been released previously to any person under 5 U.S.C. 552(a)(3) and §§ 1301.5 through 1301.12, and that the Council determines have become or are likely to become the subject of subsequent requests for substantially the same records. When the Council receives three (3) or more requests for substantially the same records, then the Council shall place those requests in front of any existing processing backlog and make the released records available in the Council's public reading room and in the electronic reading room on the Council's Web site.

(5) A general index of the records referred to in paragraph (a)(4) of this section.

(b) Information made available online. For records required to be made available for public inspection in an electronic format pursuant to 5 U.S.C. 552(a)(2) and paragraphs (a)(1) through (4) of this section, the Council shall make such records available on its Web site as soon as practicable but in any case no later than one year after such records are created.

(c) Redaction. Based upon applicable exemptions in 5 U.S.C. 552(b), the Council may redact certain information contained in any matter described in paragraphs (a)(1) through (4) of this section before making such information available for inspection or publishing it. The justification for the redaction shall be explained in writing, and the extent of such redaction shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in 5 U.S.C. 552(b) under which the redaction is made. If technically feasible, the extent of the redaction shall be indicated at the place in the record where the redaction was made.

(d) Public reading room. The Council shall make available for public inspection in an electronic format, in a reading room or otherwise, the material described in paragraphs (a)(1) through (5) of this section. Fees for duplication shall be charged in accordance with § 1301.12. The location of the Council's reading room is the Department of the Treasury's Library. The Library is located in the Freedman's Bank Building (formerly the Treasury Annex), Room 1020, 1500 Pennsylvania Avenue NW., Washington, DC 20220. For building security purposes, visitors are required to make an appointment by calling (202) 622-0990.

(e) Indices. (1) The Council shall maintain and make available for public inspection in an electronic format current indices identifying any material described in paragraphs (a)(1) through (3) of this section. In addition, the Council shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplement unless the Council determines by order published in the Federal Register that the publication would be unnecessary and impractical, in which case the Council shall nonetheless provide copies of the index on request at a cost not to exceed the direct cost of duplication.

(2) The Council shall make the indices referred to in paragraph (a)(5) and (e)(1) of this section available on its Web site.

§ 1301.5 Requests for Council records.

(a) In general. Except for records made available under 5 U.S.C. 552(a)(1) and (a)(2) and subject to the application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and (c)), the Council shall promptly make its records available to any person pursuant to a request that conforms to the rules and procedures of this section.

(b) Form and content of request. A request for records of the Council shall be made as follows:

(1) The request for records shall be made in writing and submitted by mail or via the Internet and should state, both in the request itself and on any envelope that encloses it, that it comprises a FOIA request. A request that does not explicitly state that it is a FOIA request, but clearly indicates or implies that it is a request for records, may also be processed under the FOIA.

(2) If a request is sent by mail, it shall be addressed and submitted as follows: FOIA Request—Financial Stability Oversight Council, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220. If a request is made via the Internet, it shall be submitted as set forth on the Council's Web site.

(3) In order to ensure the Council's ability to respond in a timely manner, a FOIA request must describe the records that the requester seeks in sufficient detail to enable Council personnel to locate them with a reasonable amount of effort. Whenever possible, the request must include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If known, the requester must include any file designations or descriptions for the records requested. In general, a requester is encouraged to provide more specific information about the records or types of records sought to increase the likelihood that responsive records can be located.

(4) The request shall include the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an email address at which the Council may contact the requester regarding the request.

(5) For the purpose of determining any fees that may apply to processing a request, a requester shall indicate in the request whether the requester is a commercial user, an educational institution, non-commercial scientific institution, representative of the news media, or “other” requester, as those terms are defined in § 1301.12(c), or in the alternative, state how the records released will be used. The Council shall use this information solely for the purpose of determining the appropriate fee category that applies to the requester and shall not use this information to determine whether to disclose a record in response to the request.

(6) If a requester seeks a waiver or reduction of fees associated with processing a request, then the request shall include a statement to that effect, pursuant to § 1301.12(f). Any request that does not seek a waiver or reduction of fees shall constitute an agreement of the requester to pay any and all fees (of up to $25) that may apply to the request, unless or until a request for waiver is sought and granted. The requester also may specify in the request an upper limit (of not less than $25) that the requester is willing to pay to process the request.

(i) Any request for waiver or reduction of fees should be filed together with or as part of the FOIA request, or at a later time prior to the Council incurring costs to process the request.

(ii) A waiver request submitted after the Council incurs costs will be considered in accordance with § 1301.12(f); however, the requester must agree in writing to pay the fees already incurred if the waiver is denied.

(7) If a requester seeks expedited processing of a request, then the request must include a statement to that effect as is required by § 1301.7(c).

(c) Request receipt; effect of request deficiencies. The Council shall deem itself to have received a request on the date that it receives a complete request containing the information required by paragraph (b) of this section. The Council need not accept a request, process a request, or be bound by any deadlines in this subpart for processing a request that fails materially to conform to the requirements of paragraph (b) of this section. If the Council determines that it cannot process a request because the request is deficient, then the Council shall return it to the requester and advise the requester in what respect the request is deficient. The requester may then resubmit the request, which the Council shall treat as a new request. A determination by the Council that a request is deficient in any respect is not a denial of a request for records, and such determinations are not subject to appeal.

(d) Processing of request containing technical deficiency. Notwithstanding paragraph (c) of this section, the Council shall not reject a request solely due to one or more technical deficiencies contained in the request. For the purposes of this paragraph, the term “technical deficiency” means an error or omission with respect to an item of information required by paragraph (b) of this section which, by itself, does not prevent that part of the request from conforming to the applicable requirement, and includes without limitation a non-material error relating to the contact information for the requester, or similar error or omission regarding the date, title or name, author, recipient, or subject matter of the record requested.

§ 1301.6 Responsibility for responding to requests for Council records.

(a) In general. In determining which records are responsive to a request, the Council ordinarily will include only information contained in records that the Council maintains, or are in its possession and control, as of the date the Council begins its search for responsive records. If any other date is used, the Council shall inform the requester of that date.

(b) Authority to grant or deny requests. The records officer shall be authorized to make an initial determination to grant or deny, in whole or in part, a request for a record.

(c) Referrals. When the Council receives a request for a record or any portion of a record in its possession that originated with another agency, including but not limited to a constituent agency of the Council, it shall:

(1) In the case of a record originated by a federal agency subject to the FOIA, refer the responsibility for responding to the request regarding that record to the originating agency to determine whether to disclose it; and

(2) In the case of a record originated by a state agency, respond to the request after giving notice to the originating state agency and a reasonable opportunity to provide input or to assert any applicable privileges.

(d) Notice of referral. Whenever the Council refers all or any part of the responsibility for responding to a request to another agency, the Council shall notify the requester of the referral and inform the requester of the name of each agency to which the request has been referred and of the part of the request that has been referred.

§ 1301.7 Timing of responses to requests for Council records.

(a) In general. Except as set forth in paragraphs (b) through (d) of this section, the Council shall respond to requests according to their order of receipt.

(b) Multitrack processing. (1) The Council may establish tracks to process separately simple and complex requests. The Council may assign a request to the simple or complex track based on the amount of work and/or time needed to process the request. The Council shall process requests in each track according to the order of their receipt.

(2) The Council may provide a requester in its complex track with an opportunity to limit the scope of the request to qualify for faster processing within the specified limits of the simple track(s).

(c)(1) Requests for expedited processing. The Council shall respond to a request out of order and on an expedited basis whenever a requester demonstrates a compelling need for expedited processing in accordance with the requirements of this paragraph (c).

(2) Form and content of a request for expedited processing. A request for expedited processing shall be made as follows:

(i) A request for expedited processing shall be made in writing or via the Internet and submitted as part of the initial request for records. When a request for records includes a request for expedited processing, both the envelope and the request itself must be clearly marked “Expedited Processing Requested.” A request for expedited processing that is not clearly so marked, but satisfies the requirements in § 1301.7(c)(2)(ii) and (iii), may nevertheless be granted.

(ii) A request for expedited processing shall contain a statement that demonstrates a compelling need for the requester to obtain expedited processing of the requested records. A “compelling need” may be established under the standard in either paragraph (c)(2)(ii)(A) or (B) of this section by demonstrating that:

(A) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. The requester shall fully explain the circumstances warranting such an expected threat so that the Council may make a reasoned determination that a delay in obtaining the requested records would pose such a threat; or

(B) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. A person “primarily engaged in disseminating information” does not include individuals who are engaged only incidentally in the dissemination of information. The standard of “urgency to inform” requires that the records requested pertain to a matter of current exigency to the American general public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the American general public. The requester must adequately explain the matter or activity and why the records sought are necessary to be provided on an expedited basis.

(iii) The requester shall certify the written statement that purports to demonstrate a compelling need for expedited processing to be true and correct to the best of the requester's knowledge and belief. The certification must be in the form prescribed by 28 U.S.C. 1746: “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on [date].”

(3) Determinations of requests for expedited processing. Within ten (10) calendar days of its receipt of a request for expedited processing, the Council shall decide whether to grant the request and shall notify the requester of the determination in writing.

(4) Effect of granting expedited processing. If the Council grants a request for expedited processing, then the Council shall give the expedited request priority over non-expedited requests and shall process the expedited request as soon as practicable. The Council may assign expedited requests to their own simple and complex processing tracks based upon the amount of work and/or time needed to process them. Within each such track, an expedited request shall be processed in the order of its receipt.

(5) Appeals of denials of requests for expedited processing. If the Council denies a request for expedited processing, then the requester shall have the right to submit an appeal of the denial determination in accordance with § 1301.11. The Council shall communicate this appeal right as part of its written notification to the requester denying expedited processing. The requester shall clearly mark its appeal request and any envelope that encloses it with the words “Appeal for Expedited Processing.”

(d) Time period for responding to requests for records. Ordinarily, the Council shall have twenty (20) days (excepting Saturdays, Sundays, and legal public holidays) from when a request that satisfies the requirements of § 1301.5(b) is received by the Council to determine whether to grant or deny a request for records. The twenty-day time period set forth in this paragraph shall not be tolled by the Council except that the Council may:

(1) Make one reasonable demand to the requester for clarifying information about the request and toll the twenty-day time period while it awaits the clarifying information; or

(2) Toll the twenty-day time period while awaiting receipt of the requester's response to the Council's request for clarification regarding the assessment of fees.

(e) Unusual circumstances—(1) In general. Except as provided in paragraph (e)(2) of this section, if the Council determines that, due to unusual circumstances, it cannot respond either to a request within the time period set forth in paragraph (d) of this section or to an appeal within the time period set forth in § 1301.11, the Council may extend the applicable time periods by informing the requester in writing of the unusual circumstances and of the date by which the Council expects to complete its processing of the request or appeal. Any extension or extensions of time shall not cumulatively total more than ten (10) days (exclusive of Saturdays, Sundays, and legal public holidays).

(2) Additional time. If the Council determines that it needs additional time beyond a ten-day extension to process the request or appeal, then the Council shall notify the requester and provide the requester with an opportunity to limit the scope of the request or appeal or to arrange for an alternative time frame for processing the request or appeal or a modified request or appeal. The requester shall retain the right to define the desired scope of the request or appeal, as long as it meets the requirements contained in this part. To aid the requester, the Council shall make available its FOIA Public Liaison, who shall assist in defining the desired scope of the request, and shall notify the requester of the right to seek dispute resolution services from the Office of Government Information Services.

(3) Unusual circumstances. As used in this paragraph (e), “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests:

(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request, or among two or more components or component offices having substantial subject matter interest therein.

(4) Multiple requests. Where the Council reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated. The Council may disaggregate and treat as separate requests a single request that has multiple unrelated components. The Council shall notify the requester if a request is disaggregated.

§ 1301.8 Responses to requests for Council records.

(a) Acknowledgement of requests. Upon receipt of a request that meets the requirements of § 1301.5(b), the Council ordinarily shall assign to the request a unique tracking number and shall send an acknowledgement letter or email to the requester that contains the following information:

(1) A brief description of the request;

(2) The applicable request tracking number;

(3) The date of receipt of the request, as determined in accordance with § 1301.5(c); and

(4) A confirmation, with respect to any fees that may apply to the request pursuant to § 1301.12, that the requester has sought a waiver or reduction in such fees, has agreed to pay any and all applicable fees, or has specified an upper limit (of not less than $25) that the requester is willing to pay in fees to process the request.

(b) Initial determination to grant or deny a request—(1) In general. The Council records officer (as designated in § 1301.6(b)) shall make initial determinations to grant or to deny in whole or in part requests for records.

(2) Granting of request. If the request is granted in full or in part, the Council shall provide the requester with a copy of the releasable records, and shall do so in the format specified by the requester to the extent that the records are readily producible by the Council in the requested format. The Council also shall send the requester a statement of the applicable fees, broken down by search, review and duplication fees, either at the time of the determination or shortly thereafter. The Council shall also advise the requester of the right to seek assistance from the FOIA Public Liaison.

(3) Denial of requests. If the Council determines that the request for records should be denied in whole or in part, the Council shall notify the requester in writing. The notification shall:

(i) State the exemptions relied on in not granting the request;

(ii) If technically feasible, indicate the volume of information redacted (including the number of pages withheld in part and in full) and the exemptions under which the redaction is made at the place in the record where such redaction is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);

(iii) Set forth the name and title or position of the responsible official;

(iv) Advise the requester of the right to administrative appeal in accordance with § 1301.11 and specify the official or office to which such appeal shall be submitted; and

(v) Advise the requester of the right to seek assistance from the FOIA Public Liaison or seek dispute resolution services offered by the Office of Government Information Services.

(4) No records found. If it is determined, after an adequate search for records by the responsible official or his/her delegate, that no records could be located, the Council shall so notify the requester in writing. The notification letter shall advise the requester of the right to seek assistance from the FOIA Public Liaison, seek dispute resolution services offered by the Office of Government Information Services, and administratively appeal the Council's determination that no records could be located (i.e., to challenge the adequacy of the Council's search for responsive records) in accordance with § 1301.11. The response shall specify the official to whom the appeal shall be submitted for review.

§ 1301.9 Classified information.

(a) Referrals of requests for classified information. Whenever a request is made for a record containing information that has been classified, or may be appropriate for classification, by another agency under Executive Order 13526 or any other executive order concerning the classification of records, the Council shall refer the responsibility for responding to the request regarding that information to the agency that classified the information, should consider the information for classification, or has the primary interest in it, as appropriate. Whenever a record contains information that has been derivatively classified by the Council because it contains information classified by another agency, the Council shall refer the responsibility for responding to the request regarding that information to the agency that classified the underlying information or shall consult with that agency prior to processing the record for disclosure or withholding.

(b) Determination of continuing need for classification of information. Requests for information classified pursuant to Executive Order 13526 require the Council to review the information to determine whether it continues to warrant classification. Information which no longer warrants classification under the Executive Order's criteria shall be declassified and made available to the requester, unless the information is otherwise exempt from disclosure.

§ 1301.10 Requests for business information provided to the Council.

(a) In general. Business information provided to the Council by a submitter shall not be disclosed pursuant to a FOIA request except in accordance with this section.

(b) Definitions. For purposes of this section:

(1) Business information means information from a submitter that is trade secrets or other commercial or financial information that may be protected from disclosure under Exemption 4.

(2) Submitter means any person or entity from whom the Council obtains business information, directly or indirectly. The term includes corporations, state, local, and tribal governments, and foreign governments.

(3) Exemption 4 means Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

(c) Designation of business information. A submitter of business information shall use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten (10) years after the date of the submission unless the submitter on his or her own initiative requests otherwise, and provides justification for, a longer designation period.

(d) Notice to submitters. The Council shall provide a submitter with prompt written notice of receipt of a request or appeal encompassing the business information of the submitter whenever required in accordance with paragraph (e) of this section. Such written notice shall either describe the exact nature of the business information requested or provide copies of the records or portions of records containing the business information. When a voluminous number of submitters must be notified, the Council may post or publish such notice in a place reasonably likely to accomplish such notification.

(e) When notice is required. The Council shall provide a submitter with notice of receipt of a request or appeal whenever:

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

(2) The Council has reason to believe that the information may be protected from disclosure under Exemption 4 because disclosure could reasonably be expected to cause substantial competitive harm to the submitter.

(f) Opportunity to object to disclosure. (1) Through the notice described in paragraph (d) of this section, the Council shall notify the submitter in writing that the submitter shall have ten (10) days from the date of the notice (exclusive of Saturdays, Sundays, and legal public holidays) to provide the Council with a detailed statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under Exemption 4, including a statement of why the information is considered to be a trade secret or commercial or financial information that is privileged or confidential. In the event that the submitter fails to respond to the notice within the time specified, the submitter shall be considered to have no objection to disclosure of the information. Information provided by a submitter pursuant to this paragraph (f) may itself be subject to disclosure under the FOIA.

(2) When notice is given to a submitter under this section, the Council shall advise the requester that such notice has been given to the submitter. The requester shall be further advised that a delay in responding to the request may be considered a denial of access to records and that the requester may proceed with an administrative appeal or seek judicial review, if appropriate. However, the Council shall invite the requester to agree to an extension of time so that the Council may review the submitter's objection to disclosure.

(g) Notice of intent to disclose. The Council shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information responsive to the request. If the Council decides to disclose business information over the objection of a submitter, the Council shall provide the submitter with a written notice which shall include:

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

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

(3) A specified disclosure date which is not less than ten (10) days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of the final decision to release the requested information has been provided to the submitter. Except as otherwise prohibited by law, notice of the final decision to release the requested information shall be forwarded to the requester at the same time.

(h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of business information covered in paragraph (c) of this section, the Council shall promptly notify the submitter.

(i) Exception to notice requirement. The notice requirements of this section shall not apply if:

(1) The Council determines that the information shall not be disclosed;

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

(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1987 Comp., p. 235).

§ 1301.11 Administrative appeals and dispute resolution.

(a) Grounds for administrative appeals. A requester may appeal an initial determination of the Council, including but not limited to a determination:

(1) To deny access to records in whole or in part (as provided in § 1301.8(b)(4));

(2) To assign a particular fee category to the requester (as provided in § 1301.12(c));

(3) To deny a request for a reduction or waiver of fees (as provided in § 1301.12(f)(7));

(4) That no records could be located that are responsive to the request (as provided in § 1301.8(b)(5)); or

(5) To deny a request for expedited processing (as provided in § 1301.7(c)(5)).

(b) Time limits for filing administrative appeals. An appeal, other than an appeal of a denial of expedited processing, must be submitted within ninety (90) days of the date of the initial determination or the date of the letter transmitting the last records released, whichever is later. An appeal of a denial of expedited processing must be made within ten (10) days of the date of the initial determination to deny expedited processing (see § 1301.7).

(c) Form and content of administrative appeals. The appeal shall—

(1) Be made in writing or, as set forth on the Council's Web site, via the Internet;

(2) Be clearly marked on the appeal request and any envelope that encloses it with the words “Freedom of Information Act Appeal” and addressed to Financial Stability Oversight Council, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington DC 20220;

(3) Set forth the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an email address at which the Council may contact the requester regarding the appeal;

(4) Specify the date of the initial request and date of the letter of initial determination, and, where possible, enclose a copy of the initial request and the initial determination being appealed; and

(5) Set forth specific grounds for the appeal.

(d) Processing of administrative appeals. Appeals shall be stamped with the date of their receipt by the office to which addressed, and shall be processed in the approximate order of their receipt. The receipt of the appeal shall be acknowledged by the Council and the requester advised of the date the appeal was received and the expected date of response.

(e) Determinations to grant or deny administrative appeals. The Chairperson of the Council or his/her designee is authorized to and shall decide whether to affirm or reverse the initial determination (in whole or in part), and shall notify the requester of this decision in writing within twenty (20) days (exclusive of Saturdays, Sundays, and legal public holidays) after the date of receipt of the appeal, unless extended pursuant to § 1301.7(e).

(1) If it is decided that the appeal is to be denied (in whole or in part) the requester shall be—

(i) Notified in writing of the denial;

(ii) Notified of the reasons for the denial, including the FOIA exemptions relied upon;

(iii) Notified of the name and title or position of the official responsible for the determination on appeal;

(iv) Provided with a statement that judicial review of the denial is available in the United States District Court for the judicial district in which the requester resides or has a principal place of business, the judicial district in which the requested records are located, or the District of Columbia in accordance with 5 U.S.C. 552(a)(4)(B); and

(v) Provided with notification that mediation services may be available to the requester as a non-exclusive alternative to litigation through the Office of Government Information Services in accordance with 5 U.S.C. 552(h)(3).

(2) If the Council grants the appeal in its entirety, the Council shall so notify the requester and promptly process the request in accordance with the decision on appeal.

(f) Dispute resolution. Requesters may seek dispute resolution by contacting the FOIA Public Liaison or the Office of Government Information Services as set forth on the Council's Web site.

§ 1301.12 Fees for processing requests for Council records.

(a) In general. The Council shall charge the requester for processing a request under the FOIA in the amounts and for the services set forth in paragraphs (b) through (d) of this section, except if a waiver or reduction of fees is granted under paragraph (f) of this section, or if, pursuant to paragraph (e)(4) of this section, the failure of the Council to comply with certain time limits precludes it from assessing certain fees. No fees shall be charged if the amount of fees incurred in processing the request is below $25.

(b) Fees chargeable for specific services. The fees for services performed by the Council shall be imposed and collected as set forth in this paragraph (b).

(1) Duplicating records. The Council shall charge a requester fees for the cost of copying records as follows:

(i) $.15 per page, up to 81/2 × 14″, made by photocopy or similar process.

(ii) Photographs, films, and other materials—actual cost of duplication.

(iii) Other types of duplication services not mentioned above—actual cost.

(iv) Material provided to a private contractor for copying shall be charged to the requester at the actual cost charged by the private contractor.

(2) Search services. The Council shall charge a requester for all time spent by its employees searching for records that are responsive to a request, including page-by-page or line-by-line identification of responsive information within records, even if no responsive records are found. The Council shall charge the requester fees for search time as follows:

(i) Searches for other than electronic records. The Council shall charge for search time at the salary rate(s) (basic pay plus sixteen (16) percent) of the employee(s) who conduct the search. This charge shall also include transportation of employees and records at actual cost. Fees may be charged for search time even if the search does not yield any responsive records, or if records are exempt from disclosure.

(ii) Searches for electronic records. The Council shall charge the requester for the actual direct cost of the search, including computer search time, runs, and the operator's salary. The fee for computer output shall be the actual direct cost. For a requester in the “other” category, when the cost of the search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search (i.e., the operator), the charge for the computer search will begin.

(3) Review of records. The Council shall charge a requester for time spent by its employees examining responsive records to determine whether any portions of such record are withholdable from disclosure, pursuant to the FOIA exemptions of 5 U.S.C. 552(b). The Council shall also charge a requester for time spent by its employees redacting any such withholdable information from a record and preparing a record for release to the requester. The Council shall charge a requester for time spent reviewing records at the salary rate(s) (i.e., basic pay plus sixteen (16) percent) of the employees who conduct the review. Fees may be charged for review time even if records ultimately are not disclosed.

(4) Inspection of records in the reading room. Fees for all services provided shall be charged whether or not copies are made available to the requester for inspection. However, no fee shall be charged for monitoring a requester's inspection of records.

(5) Other services. Other services and materials requested which are not covered by this part nor required by the FOIA are chargeable at the actual cost to the Council. Charges permitted under this paragraph may include:

(i) Certifying that records are true copies; and

(ii) Sending records by special methods (such as by express mail, etc.).

(c) Fees applicable to various categories of requesters—(1) Generally. The Council shall assess the fees set forth in paragraph (b) of this section in accordance with the requester fee categories set forth below.

(2) Requester selection of fee category. A requester shall identify, in the initial FOIA request, the purpose of the request in one of the following categories:

(i) Commercial. A commercial use request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made, which can include furthering those interests through litigation. The Council may determine from the use specified in the request that the requester is a commercial user.

(ii) Educational institution. This refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. This category does not include requesters seeking records for use in meeting individual academic research or study requirements.

(iii) Non-commercial scientific institution. This refers to an institution that is not operated on a “commercial” basis, as that term is defined in paragraph (c)(2)(i) of this section, and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.

(iv) Representative of the news media. This refers to any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this paragraph (c)(2)(iv), the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by subscription or by free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news media entities. A freelance journalist shall be regarded as working for a news media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Council may also consider the past publication record of the requester in making such a determination.

(v) Other Requester. This refers to a requester who does not fall within any of the categories described in paragraphs (c)(2)(i) through (iv) of this section.

(d) Fees applicable to each category of requester. The Council shall apply the fees set forth in this paragraph, for each category described in paragraph (c) of this section, to requests processed by the Council under the FOIA.

(1) Commercial use. A requester seeking records for commercial use shall be charged the full direct costs of searching for, reviewing, and duplicating the records they request as set forth in paragraph (b) of this section. Moreover, when a request is received for disclosure that is primarily in the commercial interest of the requester, the Council is not required to consider a request for a waiver or reduction of fees based upon the assertion that disclosure would be in the public interest. The Council may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records or no records are located.

(2) Educational and non-commercial scientific uses. A requester seeking records for educational or non-commercial scientific use shall be charged only for the cost of duplicating the records they request, except that the Council shall provide the first one hundred (100) pages of duplication free of charge. To be eligible, the requester must show that the request is made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. These categories do not include a requester who seeks records for use in meeting individual academic research or study requirements.

(3) News media uses. A requester seeking records under the news media use category shall be charged only for the cost of duplicating the records they request, except that the Council shall provide the requester with the first one hundred (100) pages of duplication free of charge.

(4) Other requests. A requester seeking records for any other use shall be charged the full direct cost of searching for and duplicating records that are responsive to the request, as set forth in paragraph (b) of this section, except that the Council shall provide the first one hundred (100) pages of duplication and the first two hours of search time free of charge. The Council may recover the cost of searching for records even if there is ultimately no disclosure of records, or no records are located.

(e) Other circumstances when fees are not charged. Notwithstanding paragraphs (b), (c), and (d) of this section, the Council may not charge a requester a fee for processing a FOIA request if—:

(1) Services were performed without charge;

(2) The cost of collecting a fee would be equal to or greater than the fee itself;

(3) The fees were waived or reduced in accordance with paragraph (f) of this section;

(4) The Council fails to comply with any time limit under § 1301.7 or § 1301.11; provided that:

(i) If unusual circumstances (as that term is defined in § 1301.7(e)) apply to the processing of the request and the Council has provided a timely notice to the requester in accordance with § 1301.7(e)(1), then a failure to comply with such time limit shall be excused for an additional ten days;

(ii) If unusual circumstances (as that term is defined in § 1301.7(e)) apply to the processing of the request, more than 5,000 pages are necessary to respond to the request, the Council has provided a timely written notice to the requester in accordance with § 1301.7(e)(2), and the Council has discussed with the requester via written mail, electronic mail, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with paragraph § 1301.7(e)(2), then the Council may charge a requester a fee; and

(iii) If a court has determined that exceptional circumstances exist, then a failure to comply with such time limit shall be excused for the length of time provided by the court order; or.

(5) The requester is an educational or noncommercial scientific institution or a representative of the news media (as described in paragraphs (c)(2)(ii) through (iv) of this section), then the Council shall not assess the duplication fees.

(f) Waiver or reduction of fees. (1) A requester shall be entitled to receive from the Council a waiver or reduction in the fees otherwise applicable to a FOIA request whenever the requester:

(i) Requests such waiver or reduction of fees in writing and submits the written request to the Council together with or as part of the FOIA request, or at a later time consistent with § 1301.5(b)(7) to process the request; and

(ii) Demonstrates that the fee reduction or waiver request is in the public interest because:

(A) Furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the government; and

(B) Furnishing the information is not primarily in the commercial interest of the requester.

(2) To determine whether the requester has satisfied the requirements of paragraph (f)(1)(ii)(A) of this section, the Council shall consider:

(i) The subject of the requested records must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated;

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

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

(iv) The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent.

(3) To determine whether the requester satisfies the requirement of paragraph (f)(1)(ii)(B) of this section, the Council shall consider:

(i) Any commercial interest of the requester (with reference to the definition of “commercial use” in § 1301.12(c)(2)(i)), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. In the administrative process, a requester may provide explanatory information regarding this consideration; and

(ii) Whether the public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Council ordinarily shall presume that, if a news media requester satisfies the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.

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

(5) Determination of request to reduce or waive fees: The Council shall notify the requester in writing regarding its determinations to reduce or waive fees.

(6) Effect of denying request to reduce or waive fees: If the Council denies a request to reduce or waive fees, then the Council shall advise the requester, in the denial notification letter, that the requester may incur fees as a result of processing the request. In the denial notification letter, the Council shall advise the requester that the Council will not proceed to process the request further unless the requester, in writing, directs the Council to do so and either agrees to pay any fees that may apply to processing the request or specifies an upper limit (of not less than $25) that the requester is willing to pay to process the request. If the Council does not receive this written direction and agreement/specification within thirty (30) days of the date of the denial notification letter, then the Council shall deem the FOIA request to be withdrawn.

(7) Appeals of denials of requests to reduce or waive fees: If the Council denies a request to reduce or waive fees, then the requester shall have the right to submit an appeal of the denial determination in accordance with § 1301.11. The Council shall communicate this appeal right as part of its written notification to the requester denying the fee reduction or waiver request. The requester shall clearly mark its appeal request and any envelope that encloses it with the words “Appeal for Fee Reduction/Waiver.”

(g) Notice of estimated fees; advance payments. (1) When the Council estimates the fees for processing a request will exceed the limit set by the requester, and that amount is less than $250, the Council shall notify the requester of the estimated costs, broken down by search, review and duplication fees. The requester must provide an agreement to pay the estimated costs, except that the requester may reformulate the request in an attempt to reduce the estimated fees.

(2) If the requester fails to state a limit and the costs are estimated to exceed $250, the requester shall be notified of the estimated costs, broken down by search, review and duplication fees, and must pay such amount prior to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of prompt payment of FOIA fees. Alternatively, the requester may reformulate the request in such a way as to constitute a request for responsive records at a reduced fee.

(3) The Council reserves the right to request advance payment after a request is processed and before records are released.

(4) If a requester previously has failed to pay a fee within thirty (30) calendar days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Council begins to process a new request or the pending request.

(5) When the Council acts under paragraphs (g)(1) through (4) of this section, the administrative time limits of twenty (20) days (excluding Saturdays, Sundays, and legal public holidays) from receipt of initial requests or appeals, plus extensions of these time limits, shall begin only after any applicable fees have been paid (in the case of paragraph (g)(2), (3), or (4)), a written agreement to pay fees has been provided (in the case of paragraph (g)(1)), or a request has been reformulated (in the case of paragraph (g)(1) or (2)).

(h) Form of payment. Payment may be made by check or money order paid to the Treasurer of the United States.

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

(j) Aggregating requests. If the Council reasonably determines that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the Council may aggregate those requests and charge accordingly. The Council may presume that multiple requests involving related matters submitted within a thirty (30) calendar day period have been made in order to avoid fees. The Council shall not aggregate multiple requests involving unrelated matters.

Dated: November 17, 2016. Eric A. Froman, Executive Director, Financial Stability Oversight Council.
[FR Doc. 2016-28413 Filed 11-25-16; 8:45 am] BILLING CODE 4810-25-P-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0154; FRL-9955-58-Region 4] Air Quality Plans; Tennessee; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submission, submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on March 13, 2014, for inclusion into the Tennessee SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” TDEC certified that the Tennessee SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Tennessee. EPA has determined that portions of Tennessee's infrastructure SIP submission, provided to EPA on March 13, 2014, satisfy certain required infrastructure elements for the 2010 1-hour SO2 NAAQS.

DATES:

This rule will be effective December 28, 2016

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0154. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached via electronic mail at [email protected] or via telephone at (404) 562-9031.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

On June 2, 2010, (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1

1 In the proposed action, EPA incorrectly cited a date of June 22, 2013, for the due date of infrastructure SIPs for the 2010 1-hour SO2 NAAQS. 80 FR 51158 (August 24, 2015).

EPA is acting upon the SIP submission from Tennessee that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 NAAQS. In a proposed rulemaking published on March 10, 2016 (81 FR 12627), EPA proposed to approve portions of Tennessee's 2010 1-hour SO2 NAAQS infrastructure SIP submission submitted on March 13, 2014. The details of Tennessee's submission and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before April 11, 2016. EPA received adverse comments on the proposed action.

II. Response to Comments

EPA received one set of comments on the March 10, 2016, proposed rulemaking to approve portions of Tennessee's 2010 1-hour SO2 NAAQS infrastructure SIP submission intended to meet the CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of the comments and EPA's responses are provided below.2 A full set of these comments is provided in the docket for this final rulemaking action.

2 EPA's responses to these comments are consistent with actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP submissions for Virginia (80 FR 11557, March 4, 2015) at https://www.thefederalregister.org/fdsys/pkg/FR-2015-03-04/pdf/2015-04377.pdf and West Virginia (79 FR 62022, October 16, 2014) at https://www.thefederalregister.org/fdsys/pkg/FR-2014-10-16/pdf/2014-24658.pdf.

A. Comments on Infrastructure SIP Requirements for Enforceable Emission Limits 1. The Plain Language of the CAA

Comment 1: The Commenter contends that the plain language of section 110(a)(2)(A) of the CAA requires the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. In support, the Commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. The Commenter then states that applicable requirements of the CAA include requirements for the attainment and maintenance of the NAAQS, and that CAA section 110(a)(2)(A) requires infrastructure SIPs to include enforceable emission limits to prevent exceedances of the NAAQS. The Commenter claims that Tennessee's SIP submission does not meet this asserted requirement. Thus, the Commenter asserts that EPA must disapprove Tennessee's proposed SO2 infrastructure SIP submission because it fails to include enforceable emission limitations necessary to ensure attainment and maintenance of the NAAQS as required by CAA section 110(a)(2)(A). The Commenter then contends that the Tennessee 2010 1-hour SO2 infrastructure SIP submission fails to comport with CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment.

Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by the Commenter in the context of infrastructure SIP submissions. Section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific SIP planning requirements of the CAA, EPA interprets the requirement in section 110(a)(1) that the plan provide for “implementation, maintenance and enforcement” in conjunction with the requirements in section 110(a)(2)(A) to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program.

With regard to the requirement for emission limitations in section 110(a)(2)(A), EPA has interpreted this to mean, for purposes of infrastructure SIP submissions, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may elect to impose as part of such SIP submission. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013, (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at pp. 1-2. Tennessee appropriately demonstrated that its SIP has SO2 emissions limitations and the “structural requirements” to implement the 2010 1-hour SO2 NAAQS in its infrastructure SIP submission.

The Commenter makes general allegations that Tennessee does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Tennessee's infrastructure SIP for 110(a)(2)(A) purposes in the proposed rule and explained why the SIP includes enforceable emission limitations and other control measures that aid in maintaining the 2010 1-hour SO2 NAAQS throughout the State. These include State regulations which collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to SO2 concentrations in the ambient air, and provide authority for TDEC to establish such limits and measures as well as schedules for compliance through SIP-approved permits to meet the applicable requirements of the CAA. See 81 FR 12627, 12631 (March 10, 2016). As discussed in this rulemaking, EPA finds these provisions adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and finds Tennessee demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.

2. The Legislative History of the CAA

Comment 2: The Commenter cites two excerpts from the legislative history of the 1970 CAA and claims that the “the legislative history of Infrastructure SIPs provides that states must include enforceable emission limits in their Infrastructure SIPs sufficient to ensure the implementation, maintenance, and attainment of each NAAQS in all areas of the State.”

Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning attainment. In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to impose additional emission limitations or control measures as part of the infrastructure SIP submission, as opposed to requirements for other types of SIP submissions such as attainment plans required under section 110(a)(2)(I). As provided in Response 1, the proposed rule explains why the SIP includes sufficient enforceable emissions limitations for purposes of the infrastructure SIP submission.

3. Case Law

Comment 3: The Commenter also discusses several court decisions concerning the CAA, which the Commenter claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIP submissions to prevent violations of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.” The Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“[t]he Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181, 185 (6th Cir. 2000) (“EPA's deference to a state is conditioned on the state's submission of a plan `which satisfies the standards of § 110(a)(2)' and which includes emission limitations that result in compliance with the NAAQS”; and Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 3: None of the cases the Commenter cites support the Commenter's contention that it is clear that section 110(a)(2)(A) requires infrastructure SIP submissions to include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how EPA may reasonably interpret section 110(a)(2)(A). With the exception of Train, none of the cases the Commenter cites specifically concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the other courts referenced section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions involving challenges to EPA actions on revisions to SIPs that were required and approved under other provisions of the CAA or in the context of an enforcement action.

In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the primary statutory provision at that time addressing such submissions. The issue in that case was whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS, so long as the state met other applicable requirements of the CAA, and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether the specific SIP at issue needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on a pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved SIP where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. This decision did not address the question at issue in this action, i.e., what a state must include in an infrastructure SIP submission for purposes of section 110(a)(2)(A). Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not cite to this case to assert that the measures relied on by the state in the infrastructure SIP are not “emissions limitations” and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) that EPA promulgated after a long history of the State failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the State's duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy and adoption of a remedial FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the Commenter also quotes the Court's statement that “SIPs must include certain measures Congress specified,” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the State's “new source” permitting program, not what is required for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A).

EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIP submissions must contain emission limitations or measures to ensure attainment and maintenance of the NAAQS.

4. EPA Regulations, Such as 40 CFR 51.112(a)

Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that “Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .” 51 FR 40656. Thus, the Commenter contends that “the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs; the regulation instead applies to infrastructure SIPs, which are required to attain and maintain the NAAQS in all areas of a state, including those not designated nonattainment.”

Response 4: The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits which ensure attainment and maintenance of the NAAQS is incorrect. It is clear on its face that 40 CFR 51.112 directly applies to state SIP submissions for control strategy SIPs, i.e., plans that are specifically required to attain and/or maintain the NAAQS. These regulatory requirements apply when states are developing “control strategy” SIPs under other provisions of the CAA, such as attainment plans required for the various NAAQS in Part D and maintenance plans required in section 175A. The Commenter's suggestion that 40 CFR 51.112 must apply to all SIP submissions required by section 110 based on the preamble to EPA's action “restructuring and consolidating” provisions in part 51, is also incorrect.3 EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated.

3 EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. See 51 FR 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

5. EPA Interpretations in Other Rulemakings

Comment 5: The Commenter also references a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS and claims it was an action in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an infrastructure SIP. Specifically, the Commenter asserts that in that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure attainment and maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the SO2 NAAQS.

Response 5: EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 specifically addressed Missouri's attainment SIP submission —not Missouri's infrastructure SIP submission. It is clear from the final Missouri rule that EPA was not reviewing an initial infrastructure SIP submission, but rather reviewing proposed SIP revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. Therefore, EPA does not agree that the 2006 Missouri action referenced by the Commenter establishes how EPA reviews infrastructure SIP submissions for purpose of section 110(a)(2)(A).

As discussed in the proposed rule, EPA finds that the Tennessee 2010 1-hour SO2 infrastructure SIP meets certain appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.4

4 EPA's final action does not address CAA section 110(a)(2)(D)(i)(I) because Tennessee has not made a submission for these elements.

B. Comments on Tennessee SIP SO2 Emission Limits

Comment 6: The Commenter asserts that EPA may not approve the Tennessee SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires that emission limits must limit the quantity, rate or concentration of emissions and must apply on a continuous basis. The Commenter states that “Enforceable emission limitations contained in the I-SIP must, therefore, be accompanied by proper averaging times; otherwise an appropriate numerical emission limit could allow for peak emissions that exceed the NAAQS and yet still be permitted since they would be averaged with lower emissions at other times.” The Commenter also cites to recommended averaging times in EPA guidance providing that SIP emissions limits, “should not exceed the averaging time of the applicable NAAQS that the limit is intended to help attain.” EPA Memorandum of Apr. 23, 2014, to Regional Air Division Directors, Regions 1-10, Guidance for 1-Hour SO2 NAAQS Nonattainment Area SIP Submissions, at 22, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. The Commenter also notes that this EPA guidance provides that “ `any emissions limits based on averaging periods longer than 1 hour should be designed to have comparable stringency to a 1-hour average limit at the critical emission value.' ” The Commenter states that, “. . . for Tennessee's Infrastructure SIP to rely on enforceable emission limitations for implementation of the SO2 NAAQS which employ an averaging period longer than one-hour, the numerical emission limits must be ratcheted down to provide adequate assurance that the NAAQS will be met.” Additionally, the Commenter notes that it disagrees with Tennessee's responses to public comments on this SIP submission regarding annual emissions data to demonstrate compliance with hourly emissions limits.

The Commenter also cites to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a prevention of significant deterioration (PSD) permit, an EPA Environmental Appeals Board decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit,5 and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates and claims EPA has stated that 1-hour averaging times are necessary for the 2010 1-hour SO2 NAAQS. The Commenter states, “Therefore, in order to ensure that Tennessee's Infrastructure SIP actually implements the SO2 NAAQS in every area of the state, the I-SIP must contain necessary and appropriate enforceable emission limits with one-hour averaging times, monitored continuously, for large sources of SO2.” The Commenter asserts that EPA must disapprove Tennessee's infrastructure SIP because it fails to require emission limits with adequate averaging times.

5 The Commenter cited to In re: Mississippi Lime Co., PSD APPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP).

Response 6: As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to implement and enforce the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.6 EPA disagrees that it must disapprove the proposed Tennessee infrastructure SIP submission merely because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, as this issue is not appropriate for resolution in this action in advance of EPA action on the State's submissions of other required SIP submissions including an attainment plan for one area which is designated nonattainment pursuant to section 107 of the CAA.7 Therefore, because EPA finds Tennessee's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issue of appropriate averaging periods for such future limitations not relevant at this time.

6 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014, Guidance for 1-Hour SO Nonattainment Area SIP Submissions. As noted by the Commenter, EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not taken final action to approve any specific submission of such a limit that a state has relied upon to demonstrate NAAQS attainment, and Tennessee has not submitted such a limit for that purpose here, so it is premature at this time to evaluate whether any emission limit in Tennessee's SIP is in accordance with the April 23, 2014, guidance. If and when Tennessee submits an emission limitation that relies upon such a longer averaging time to demonstrate NAAQS attainment, EPA will evaluate it then.

7 There is currently one area designated nonattainment pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS in Tennessee. EPA believes the appropriate time for examining the necessity of 1-hour SO2 emission limits on specific sources is within the attainment planning process.

Further, the Commenter's citation to a prior EPA discussion on emission limitations required in PSD permits (from EPA's Environmental Appeals Board decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA is neither relevant nor applicable to infrastructure SIP submissions under CAA section 110. In addition, and as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to an attainment plan SIP submission required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements. As for the Commenter's evaluation of TDEC's position regarding averaging times, as described in Response 7, this action is not the appropriate context to address the adequacy of various averaging periods for the 2010 1-hour SO2 NAAQS.

Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, the Commenter contends that EPA may not approve Tennessee's infrastructure SIP because it does not include enforceable 1-hour emission limits for sources that the Commenter claims are currently contributing to NAAQS exceedances. The Commenter asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source oriented. The Commenter states that “[d]espite the large contribution from coal-fired EGUs [electricity generating units] to the State's SO2 pollution, Tennessee's I-SIP lacks enforceable emissions limitations applicable to its coal-fired EGUs sufficient to ensure the implementation, attainment, and maintenance of the 2010 SO2 NAAQS.” The Commenter refers to data from EPA's National Emissions Inventory (NEI) and states, “In Tennessee, 77 percent (or 120,134 tons) of SO2 emissions come from its coal electric generating units (“EGUs”).” The Commenter also provides air dispersion modeling reports that it conducted for two power plants in Tennessee, the Tennessee Valley Authority (TVA) Allen and TVA Gallatin Power Plants. The Commenter summarizes its modeling results for the TVA Allen and TVA Gallatin Power Plants stating that the data predict exceedances of the standard. During the State's public comment period on its proposed SIP revision, the Commenter submitted comments stating, “. . . in determining whether enforceable emission limitations in an I-SIP submittal are sufficient to implement the NAAQS, an agency may not ignore information put in front of it. The expert air dispersion modeling analyses for TVA Allen and Gallatin that [the Commenter] has provided to TDEC over the years demonstrate the inadequacy of the State's rules and regulations for SO2 emissions—those which Tennessee has relied on in its I-SIP to attain and maintain the NAAQS throughout the State.” The Commenter further contends that “neither TDEC nor EPA may rely on the cited provisions already contained in Tennessee's I-SIP to satisfy section 110(a)(2)(A) for the 2010 SO2 NAAQS, see 81 FR at 12631, without first addressing and rectifying the insufficiencies of the SO2 emission limitations in the state's I-SIP certification that have been identified and demonstrated through the various modeling analyses provided to the agency by [the Commenter].” Thus, the Commenter asserts that EPA must disapprove Tennessee's SIP submission, and must establish a FIP “which incorporates necessary and appropriate source-specific enforceable emission limitations (preferably informed by modeling) on TVA Allen Plant and TVA Gallatin Plant, as well as any other major source of SO2 pollution in the State which has modeled exceedances of the NAAQS.” Further, the Commenter states that “For TVA Allen and TVA Gallatin, enforceable emission limitations must be at least as stringent as the modeling-based limits [provided by the Commenter] in order to protect the one-hour SO2 NAAQS and implement, maintain, and enforce the standard in Tennessee.”

Response 7: As stated previously, EPA believes that the proper inquiry is whether Tennessee has met the basic, structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submissions. Emissions limitations and other control measures, whether on coal-fired EGUs or other SO2 sources, that may be needed to attain and maintain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure SIP submission. A state, like Tennessee, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission for purposes of section 110(a)(2)(A). For example, Tennessee submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in the proposed rulemaking on Tennessee's SO2 infrastructure SIP. These provisions have the ability to reduce SO2 overall. Although the Tennessee SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 1-hour SO2 NAAQS.

Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD for the TVA Allen and TVA Gallatin Power Plants, EPA is not in this action making a determination regarding the air quality status in the area where these EGUs are located, and is not evaluating whether emissions applicable to these EGUs are adequate to attain and maintain the NAAQS. Consequently, the EPA does not find the modeling information relevant for review of an infrastructure SIP for purposes of section 110(a)(2)(A). When additional areas in Tennessee are designated under the 2010 1-hour SO2 NAAQS, and if any additional areas in Tennessee are designated nonattainment in the future, any potential future modeling submitted by the State with designations or attainment demonstrations would need to account for any new emissions limitations Tennessee develops to support such designation or demonstration, which at this point is unknown. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations,8 EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs for the 2010 1-hour SO2 NAAQS for purposes of section 110(a)(2)(A), which are not actions in which EPA makes determinations regarding current air quality status. See April 12, 2012, letters to states and 2012 Draft White Paper.9

8See for example, EPA's discussion of modeling for characterizing air quality in the Agency's August 21, 2015, final rule at 80 FR 51052 and for nonattainment planning in the April 23, 2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions.

9Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) and a sample April 12, 2012, letter from EPA to states are available in the docket for this action.

In conclusion, EPA disagrees with the Commenter's statements that EPA must disapprove Tennessee's infrastructure SIP submission because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the 2010 1-hour SO2 NAAQS at this time.

Comment 8: The Commenter alleges that the proposed SO2 infrastructure SIP does not include a submittal that addresses sources significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must therefore disapprove the infrastructure SIP and impose a FIP. The Commenter states that “Tennessee's submittal improperly cites to the D.C. Circuit Court's 2012 opinion in EME Homer City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012), as concluding that a 110(a)(2)(D)(i)(I) SIP submission cannot be considered a `required' SIP submission until EPA has defined a state's obligations pursuant to that section; incorrectly assuming that no action was required until EPA quantified the Good Neighbor obligation.” The Commenter explains that the Supreme Court disapproved the view that states cannot address section 110(a)(2)(D)(i) until EPA resolves issues related to the Clean Air Interstate Rule (CAIR) or CSAPR, and that EPA is not required to provide any implementation guidance before states' interstate transport obligation can be addressed, citing to Order on Petition Number VI-2014-04 (July 29, 2015), at 10 (citing EPA v. EME Homer City Generation, 134 S.Ct. 1584, 1601 (2014)) and also 81 FR 12630. The Commenter notes that regardless of whether Tennessee submitted a SIP revision to address CAA section 110(a)(2)(D)(i)(I), the State “long since passed the June 2013 deadline to submit such provisions; rather than await some potential future submission, Tennessee's failure to satisfy its Good Neighbor obligations must be rectified now.”

Response 8: This action does not address whether sources in Tennessee are significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the good neighbor provision). Thus, EPA disagrees with the Commenter's statement that EPA must disapprove the submitted 2010 1-hour SO2 infrastructure SIP due to Tennessee's failure to address section 110(a)(2)(D)(i)(I). In EPA's rulemaking proposing to approve Tennessee's infrastructure SIP for the 2010 1-hour SO2 NAAQS, EPA clearly stated that it was not taking any action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I). Tennessee did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take action on under section 110(k) of the CAA. Similarly, EPA disagrees with the Commenter's assertion that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. There is no basis for the contention that EPA has triggered its obligation to issue a FIP to address the good neighbor obligation under section 110(c), as EPA has neither found that Tennessee failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 1-hour SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO2 NAAQS.

EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Tennessee's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Tennessee had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the State's infrastructure SIP submission, separately or together, as appropriate.

The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters EPA's interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Tennessee's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS.

EPA has no obligation at this time to issue a FIP pursuant to 110(c)(1) to address Tennessee's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Tennessee failed to make a required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submission addressing that element. Until either occurs, EPA does not have the obligation to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Tennessee to address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at this time.

III. Final Action

With the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking final action to approve Tennessee's infrastructure submission submitted on March 13, 2014, for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is taking final action to approve Tennessee's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements because the submission is consistent with section 110 of the CAA.

IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

Dated: November 7, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

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

42 U.S.C. 7401 et seq.

Subpart RR—Tennessee 2. In § 52.2220, the table in paragraph (e) is amended by adding the entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS” at the end of the table to read as follows:
§ 52.2220 Identification of plan.

(e) * * *

EPA-Approved Tennessee Non-Regulatory Provisions Name of non-regulatory SIP provision Applicable geographic or nonattainment area State effective date EPA approval date Explanation *         *         *         *         *         *         * 110 (a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS Tennessee 03/13/2014 11/28/16, [insert Federal Register citation] With the exception of interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4).
[FR Doc. 2016-28429 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2015-0174; FRL-9955-40-OW] RIN 2040-AF56 Revision of Certain Federal Water Quality Criteria Applicable to Washington AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

On September 14, 2015, the Environmental Protection Agency (EPA) proposed revisions to the federal Clean Water Act (CWA) human health criteria applicable to waters under the State of Washington's jurisdiction to ensure that the criteria are set at levels that will adequately protect Washington residents, including tribes with treaty-reserved rights, from exposure to toxic pollutants. EPA promulgated Washington's previous criteria for the protection of human health in 1992 as part of the National Toxics Rule (NTR) (amended in 1999 for Polychlorinated Biphenyls (PCBs)), using the Agency's recommended criteria values at the time. EPA derived those previously applicable criteria using a fish consumption rate (FCR) of 6.5 grams per day (g/day) based on national surveys. The best available data now demonstrate that fish consumers in Washington consume much more fish than 6.5 g/day. There are also new data and scientific information available to update the toxicity and exposure parameters used to calculate human health criteria. On August 1, 2016, the State of Washington adopted and submitted human health criteria for certain pollutants, reflecting some of these new data and information. Concurrent with this final rule, EPA is taking action under CWA 303(c) to approve in part, and disapprove in part, the human health criteria submitted by Washington. For those criteria that EPA disapproved, EPA is finalizing federal human health criteria in this final rule. EPA is not finalizing criteria in this final rule for those state-adopted criteria that EPA approved, or for certain criteria that EPA has determined involve scientific uncertainty, as explained below.

DATES:

This final rule is effective on December 28, 2016.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2015-0174. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Erica Fleisig, Office of Water, Standards and Health Protection Division (4305T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566-1057; email address: [email protected]

SUPPLEMENTARY INFORMATION:

This final rule is organized as follows:

I. General Information A. Does this action apply to me? B. How did EPA develop this final rule? II. Background A. Statutory and Regulatory Background B. EPA's CWA 303(c) Action on Washington's Human Health Criteria C. General Recommended Approach for Deriving Human Health Criteria III. Derivation of Human Health Criteria for Washington A. Scope of Pollutants and Waters Covered by This Final Rule B. Washington's Designated Uses and Tribal Reserved Fishing Rights C. Washington-Specific Human Health Criteria Inputs D. Final Human Health Criteria for Washington E. Applicability of Criteria F. Alternative Regulatory Approaches and Implementation Mechanisms IV. Economic Analysis A. Identifying Affected Entities B. Method for Estimating Costs C. Results V. Statutory and Executive Order Reviews A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132 (Federalism) F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks) H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use) I. National Technology Transfer and Advancement Act of 1995 J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) K. Congressional Review Act (CRA) I. General Information A. Does this action apply to me?

Entities such as industries, stormwater management districts, or publicly owned treatment works (POTWs) that discharge pollutants to waters of the United States under the State of Washington's jurisdiction could be indirectly affected by this rulemaking, because federal water quality standards (WQS) promulgated by EPA are applicable to CWA regulatory programs, such as National Pollutant Discharge Elimination System (NPDES) permitting. Citizens concerned with water quality in Washington could also be interested in this rulemaking. Categories and entities that could potentially be affected include the following:

Category Examples of potentially affected entities Industry Industries discharging pollutants to waters of the United States in Washington. Municipalities Publicly owned treatment works or other facilities discharging pollutants to waters of the United States in Washington. Stormwater Management Districts Entities responsible for managing stormwater runoff in the State of Washington. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that could be indirectly affected by this action. Any parties or entities who depend upon or contribute to the water quality of Washington's waters could be indirectly affected by this rule. To determine whether your facility or activities could be indirectly affected by this action, you should carefully examine this rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. B. How did EPA develop this final rule?

In developing this final rule, EPA carefully considered the public comments and feedback received from interested parties. EPA originally provided a 60-day public comment period after publishing the proposed rule in the Federal Register on September 14, 2015.1 On October 28, 2015, in response to stakeholder requests,2 EPA extended the public comment period for an additional 45 days.3 In addition, EPA held two virtual public hearings on December 15th and 16th, 2015, to discuss the contents of the proposed rule and accept verbal public comments.

1 See Revision of Certain Federal Water Quality Criteria Applicable to Washington: Proposed Rule, 80 FR 55063, September 14, 2015.

2 EPA received requests from the Association of Washington Business—Washington State's Chamber of Commerce, Washington Public Ports Association (on behalf of the Association of Washington Cities and the Washington State Association of Counties), Western Wood Preservers Institute, ALCOA, American Forest and Paper Association, McFarland Cascade, Schnitzer Steel Industries, and Weyerhaeuser.

3 See Extension of Public Comment Period for the Revision of Certain Federal Water Quality Criteria Applicable to Washington, 80 FR 65980, October 28, 2015.

Over 60 organizations and individuals submitted comments on a range of issues. EPA also received over 400 letters from individuals associated with mass letter writing campaigns. Some comments addressed issues beyond the scope of the rulemaking, and thus EPA did not consider them in finalizing this rule. In each section of this preamble, EPA discusses certain public comments so that the public is aware of the Agency's position. For a full response to these and all other comments, see EPA's Response to Comments document in the official public docket.

II. Background A. Statutory and Regulatory Background

CWA section 101(a)(2) establishes as a national goal “water quality which provides for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water, wherever attainable.” These are commonly referred to as the “fishable/swimmable” goals of the CWA. EPA interprets “fishable” uses to include, at a minimum, designated uses providing for the protection of aquatic communities and human health related to consumption of fish and shellfish.4

4 USEPA. 2000. Memorandum #WQSP-00-03. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/sites/production/files/2015-01/documents/standards-shellfish.pdf.

CWA section 303(c) (33 U.S.C. 1313(c)) directs states to adopt WQS for their waters subject to the CWA. CWA section 303(c)(2)(A) and EPA's implementing regulations at 40 CFR part 131 require, among other things, that a state's WQS specify appropriate designated uses of the waters, and water quality criteria that protect those uses. EPA's regulations at 40 CFR 131.11(a)(1) provide that “[s]uch criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use. For waters with multiple use designations, the criteria shall support the most sensitive use.” In addition, 40 CFR 131.10(b) provides that “[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into consideration the water quality standards of downstream waters and ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.”

States are required to review applicable WQS at least once every three years and, if appropriate, revise or adopt new standards (CWA section 303(c)(1)). Any new or revised WQS must be submitted to EPA for review and approval or disapproval (CWA section 303(c)(2)(A) and (c)(3)). If EPA disapproves a state's new or revised WQS, the CWA provides the state 90 days to adopt a revised WQS that meets CWA requirements, and if it fails to do so, EPA shall promptly propose and then within 90 days promulgate such standard unless EPA approves a state replacement WQS first (CWA section 303(c)(3) and (c)(4)(A)). CWA section 303(c)(4)(B) authorizes the Administrator to determine that a new or revised standard is needed to meet CWA requirements. Upon making such a determination, the CWA specifies that EPA shall promptly propose, and then within 90 days promulgate, any such new or revised standard unless prior to such promulgation, the state has adopted a revised or new WQS that EPA determines to be in accordance with the CWA.

Under CWA section 304(a), EPA periodically publishes criteria recommendations for states to consider when adopting water quality criteria for particular pollutants to protect the CWA section 101(a)(2) goal uses. In 2015, EPA updated its 304(a) recommended criteria for human health for 94 pollutants.5 Where EPA has published recommended criteria, states should establish numeric water quality criteria based on EPA's CWA section 304(a) criteria, section 304(a) criteria modified to reflect site-specific conditions, or other scientifically defensible methods (40 CFR 131.11(b)(1)). In all cases criteria must be sufficient to protect the designated use and be based on sound scientific rationale (40 CFR 131.11(a)(1)). CWA section 303(c)(2)(B) requires states to adopt numeric criteria for all toxic pollutants listed pursuant to CWA section 307(a)(1) for which EPA has published 304(a) criteria, as necessary to support the states' designated uses.

5 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

In 1992, EPA promulgated the NTR at 40 CFR 131.36, establishing chemical-specific numeric criteria for 85 priority toxic pollutants for 14 states and territories (states), including Washington, that were not in compliance with the requirements of CWA section 303(c)(2)(B). When states covered by the NTR subsequently adopted their own criteria for toxic pollutants that EPA approved as consistent with the CWA and EPA's implementing regulations, EPA amended the NTR to remove those criteria for those states.

B. EPA's CWA 303(c) Action on Washington's Human Health Criteria

On September 14, 2015, EPA made a CWA 303(c)(4)(B) determination that new or revised WQS for the protection of human health in Washington were necessary to meet the requirements of the CWA, and proposed revised human health criteria for the state (see 80 FR 55063). At that time, Washington had not yet adopted its own criteria for the protection of human health.6 On August 1, 2016, Washington adopted and submitted statewide human health criteria and new and revised implementation provisions. Concurrent with this final rule, EPA approved 45 and disapproved 143 of Washington's human health criteria under CWA 303(c). EPA is finalizing 144 human health criteria in this rule in accordance with CWA section 303(c)(3) and (c)(4) requirements.7 After the effective date of this final rule, these federal criteria will be in effect for CWA purposes along with the human health criteria that Washington adopted and EPA approved.

6 Washington adopted criteria for the protection of aquatic life from toxic pollutants at WAC 173-201A-240.

7 EPA is finalizing a different number of human health criteria (144) than it is disapproving (143) in Washington's 2016 submittal. Washington did not adopt organism-only criteria for methylmercury or water-plus-organism and organism-only criteria for bis(2-chloro-1-methylethyl) ether. These are priority pollutants listed pursuant to CWA section 307(a)(1) for which EPA has 304(a) recommended criteria, and, as such, CWA section 303(c)(2)(B) requires that states adopt numeric criteria for these pollutants, as necessary to support the states' designated uses. Therefore, EPA is including these three criteria in this final rule for Washington. This final rule, however, does not include revised water-plus-organism and organism-only criteria for arsenic, as explained below in section III.A, even though EPA is disapproving the arsenic criteria in Washington's submittal.

Several commenters provided comments on the timing of EPA's rule, and the relationship between EPA's federal rulemaking and the state rulemaking process. These comments are now, for the most part, mooted by EPA's finalization of its federal rule and action on the state's submittal. For additional responses to specific comments, see EPA's Response to Comment document in the docket for this rule.

C. General Recommended Approach for Deriving Human Health Criteria

Human health criteria are designed to minimize the risk of adverse cancer and non-cancer effects occurring from lifetime exposure to pollutants through the ingestion of drinking water and consumption of fish and shellfish obtained from inland and nearshore waters (by nearshore waters, EPA refers to waters out to three miles from the coast). EPA's practice is to establish a human health 304(a) recommended criterion for both drinking water and consumption of fish and shellfish from inland and nearshore waters combined, and a separate human health criterion based only on ingestion of fish and shellfish from inland and nearshore waters. This latter criterion applies in cases where the designated uses of a waterbody include supporting fish and shellfish for human consumption but not drinking water supply sources (e.g., in non-potable estuarine waters).

The criteria are based on two types of biological endpoints: (1) Carcinogenicity and (2) systemic toxicity (i.e., all adverse effects other than cancer). EPA takes an integrated approach and considers both cancer and non-cancer effects when deriving human health criteria. Where sufficient data are available, EPA derives criteria using both carcinogenic and non-carcinogenic toxicity endpoints and recommends the lower value. Human health criteria for carcinogenic effects are calculated using the following input parameters: Cancer slope factor (CSF), cancer risk level, body weight, drinking water intake rate, fish consumption rate, and a bioaccumulation factor(s). Human health criteria for non-carcinogenic and nonlinear carcinogenic effects are calculated using a reference dose (RfD) in place of a CSF and cancer risk level, and a relative source contribution (RSC) factor, which is intended to ensure that an individual's total exposure to a given pollutant from all sources does not exceed the RfD. Each of these inputs is discussed in more detail below and in EPA's 2000 Human Health Methodology (hereafter referred to as EPA's “2000 Methodology”).8

8 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. https://www.epa.gov/wqc/human-health-water-quality-criteria.

a. Cancer Risk Level

EPA's 304(a) national recommended human health criteria are typically based on the assumption that carcinogenicity is a “non-threshold phenomenon,” which means that there are no “no-effect” levels, because even extremely small doses are assumed to cause a finite increase in the incidence of cancer. Therefore, EPA calculates 304(a) human health criteria for carcinogenic effects as pollutant concentrations corresponding to lifetime increases in the risk of developing cancer.9 EPA calculates its 304(a) human health criteria values at a 10−6 (one in one million) cancer risk level and recommends cancer risk levels of 10−6 or 10−5 (one in one hundred thousand) for the general population.10 EPA notes that states and authorized tribes can also choose a more stringent risk level, such as 10−7 (one in ten million), when deriving human health criteria.

9 As noted above, EPA recommends the criterion derived for non-carcinogenic effects if it is more protective (lower) than that derived for carcinogenic effects.

10 EPA's 2000 Methodology also states: “Criteria based on a 10−5 risk level are acceptable for the general population as long as states and authorized tribes ensure that the risk to more highly exposed subgroups (sport fishers or subsistence fishers) does not exceed the 10−4 level.” Since EPA is establishing final criteria to protect a target general population of tribes with reserved subsistence fishing rights in Washington waters, the applicable EPA-recommended cancer risk levels would relate to that target general population, as opposed to the general population of Washington residents overall. See section III for additional discussion.

If the pollutant is not considered to have the potential for causing cancer in humans (i.e., systemic toxicants), EPA assumes that the pollutant has a threshold (the RfD) below which a physiological mechanism exists to avoid or overcome the adverse effects of the pollutant.

b. Cancer Slope Factor and Reference Dose

A dose-response assessment is required to understand the quantitative relationships between exposure to a pollutant and the onset of human health effects. EPA evaluates dose-response relationships derived from animal toxicity and human epidemiological studies to derive dose-response metrics. For carcinogenic toxicological effects, EPA uses an oral CSF to derive human health criteria. The oral CSF is an upper bound, approximating a 95 percent confidence limit, on the increased cancer risk from a lifetime oral exposure to a stressor. For non-carcinogenic effects, EPA uses the RfD to calculate human health criteria. A RfD is an estimate of a daily oral exposure of an individual to a substance that is likely to be without an appreciable risk of deleterious effects during a lifetime. A RfD is typically derived from a laboratory animal dosing study in which a no-observed-adverse-effect level (NOAEL), lowest-observed-adverse-effect level (LOAEL), or benchmark dose can be obtained. Uncertainty factors are applied to reflect the limitations of the data. EPA's Integrated Risk Information System (IRIS) 11 was the primary source of toxicity values (i.e., RfD and CSF) for EPA's 2015 updated 304(a) human health criteria.12 For some pollutants, however, more recent peer-reviewed and publicly available toxicological data were available from other EPA program offices (e.g., Office of Pesticide Programs, Office of Water, Office of Land and Emergency Management), other national and international programs, and state programs.

11 USEPA. Integrated Risk Information System (IRIS). U.S. Environmental Protection Agency, Office of Research and Development, Washington, DC www.epa.gov/iris.

12 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

c. Exposure Assumptions

EPA's latest 304(a) national human health criteria use a default drinking water intake rate of 2.4 liters per day (L/day) and default rate of 22 g/day for consumption of fish and shellfish from inland and nearshore waters, multiplied by pollutant-specific bioaccumulation factors (BAFs) to account for the amount of the pollutant in the edible portions of the ingested species. EPA's 2000 Methodology for deriving human health criteria emphasizes using, when possible, measured or estimated BAFs, which account for chemical accumulation in aquatic organisms from all potential exposure routes.13 In the 2015 national 304(a) human health criteria update, EPA primarily used field-measured BAFs, and laboratory-measured bioconcentration factors (BCFs) with applicable food chain multipliers available from peer-reviewed, publicly available databases, to develop national BAFs for three trophic levels of fish. If this information was not available, EPA selected octanol-water partition coefficients (Kow values) from peer-reviewed sources for use in calculating national BAFs.14

13 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. https://www.epa.gov/wqc/human-health-water-quality-criteria.

14 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

EPA's national default drinking water intake rate of 2.4 L/day represents the per capita estimate of combined direct and indirect community water ingestion at the 90th percentile for adults ages 21 and older.15 EPA's national default FCR of 22 g/day represents the 90th percentile consumption rate of fish and shellfish from inland and nearshore waters for the U.S. adult population 21 years of age and older, based on National Health and Nutrition Examination Survey (NHANES) data from 2003 to 2010.16 17 EPA calculates human health criteria using a default body weight of 80 kilograms (kg), the average weight of a U.S. adult age 21 and older, based on NHANES data from 1999 to 2006.

15 USEPA. 2011. EPA Exposure Factors Handbook. 2011 edition (EPA 600/R-090/052F). http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.

16 USEPA. 2014. Estimated Fish Consumption Rates for the U.S. Population and Selected Subpopulations (NHANES 2003-2010). United States Environmental Protection Agency, Washington, DC EPA 820-R-14-002.

17 EPA's national FCR is based on the total rate of consumption of fish and shellfish from inland and nearshore waters (including fish and shellfish from local, commercial, aquaculture, interstate, and international sources). This is consistent with a principle that each state does its share to protect people who consume fish and shellfish that originate from multiple jurisdictions. USEPA. January 2013. Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

Although EPA uses these default values to calculate national 304(a) recommended human health criteria, EPA's 2000 Methodology notes a preference for the use of local data to calculate human health criteria (e.g., locally derived FCRs, drinking water intake rates and body weights, and waterbody-specific bioaccumulation rates) over national default values, where data are sufficient to do so, to better represent local conditions.18 It is also important, where sufficient data are available, to select a FCR that reflects consumption that is not suppressed by concerns about the safety of available fish.19 20 Deriving human health criteria using an unsuppressed FCR furthers the restoration goals of the CWA and ensures protection of human health-related designated uses (as pollutant levels decrease, fish habitats are restored, and fish availability increases over time). See section III for additional discussion regarding use of an unsuppressed FCR to protect a subsistence or sustenance fishing use, especially where the subsistence or sustenance use is based in whole or in part on tribal treaty or other reserved fishing rights.21

18 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. https://www.epa.gov/wqc/human-health-water-quality-criteria.

19 USEPA. January 2013. Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

20 National Environmental Justice Advisory Council, Fish Consumption and Environmental Justice, p.44 (2002) available at https://www.epa.gov/sites/production/files/2015-02/documents/fish-consump-report_1102.pdf.

21 The term “subsistence” is coterminous with “sustenance” in this context. Hereafter, the document uses the term “subsistence.”

d. Relative Source Contribution

When deriving human health criteria for non-carcinogens and nonlinear carcinogens, EPA recommends including a RSC factor to account for sources of exposure other than drinking water and fish and shellfish from inland and nearshore waters, so that the pollutant effect threshold (i.e., RfD) is not apportioned to drinking water and fish consumption alone. The rationale for this approach is that for pollutants exhibiting threshold effects, the objective of the human health criteria is to ensure that an individual's total exposure from all sources does not exceed that threshold level. These other exposures include exposure to a particular pollutant from ocean fish and shellfish consumption (which is not included in EPA's default national FCR), non-fish food consumption (e.g., fruits, vegetables, grains, meats, poultry), dermal exposure, and inhalation exposure. EPA's guidance includes a procedure for determining an appropriate RSC value ranging from 0.2 to 0.8 for a given pollutant.

III. Derivation of Human Health Criteria for Washington A. Scope of Pollutants and Waters Covered by This Final Rule

In 1992, EPA did not establish human health criteria in the NTR for some priority toxic pollutants because, as stated in the preamble to the final rule at 57 FR 60848, December 22, 1992, EPA had no 304(a) recommendations for those pollutants at the time. EPA now has 304(a) recommendations for 99 priority toxic pollutants listed pursuant to CWA section 307(a)(1) (85 for which EPA established criteria in the NTR, plus 14 additional pollutants).

After consideration of all comments received on EPA's proposed rule, and EPA's CWA 303(c) action on Washington's submittal, EPA is finalizing 144 new and revised Washington-specific criteria for priority toxic pollutants in this rule. For arsenic, dioxin and thallium, EPA is not revising Washington's existing criteria from the NTR at this time, as explained below and in EPA's Response to Comments document in the docket for the final rule. For those priority pollutants for which EPA does not have 304(a) national recommended criteria, and are therefore not included in Washington's submittal or this final rule, EPA expects that Washington will continue to apply its existing narrative toxics criterion in the state's WQS at WAC 173-201A-260(2)(a).

Several commenters raised concerns about the scientific defensibility of EPA's proposed human health criteria for arsenic, and one commenter raised similar concerns about EPA's proposed criteria for 2,3,7,8-TCDD (dioxin). Additionally, after EPA proposed revised human health criteria for thallium in Washington, EPA further evaluated the scientific uncertainty around the appropriate RfD for thallium. EPA carefully considered all of these comments and information regarding these three pollutants, along with the comments that articulated it is important for Washington to have protective numeric criteria in place for priority toxic pollutants such as arsenic and dioxin. Given the scientific uncertainty regarding aspects of the science upon which the proposed human health criteria for arsenic, dioxin, and thallium were based, EPA is withdrawing its proposal of revised criteria for these three pollutants at this time and leaving the existing criteria from the NTR in effect for CWA purposes.22 EPA did not update the 304(a) national recommended criteria for these three pollutants in 2015. As noted earlier, IRIS was the primary source of toxicity values (i.e., RfD and CSF) for EPA's 2015 updated 304(a) human health criteria. For thallium, EPA's IRIS database does not currently contain an estimate of thallium's toxicity (i.e., a RfD).23 For dioxin, IRIS does not currently contain a measure of dioxin's cancer-causing ability (i.e., a CSF).24 Without such values, EPA has concluded that further analysis is necessary in order to promulgate scientifically sound revised criteria for these two pollutants. For arsenic, there is uncertainty surrounding the toxicological assessment with respect to human health effects. EPA's current plan for addressing the arsenic issues is described in the Assessment Development Plan for the Integrated Risk Information System (IRIS) Toxicological Review of Inorganic Arsenic (EPA/630/R-14/101, November 2015). EPA intends to reevaluate the existing federal arsenic, dioxin and thallium human health criteria for Washington by 2018, with particular consideration of any relevant toxicity and bioaccumulation information.

22 EPA is moving Washington's existing arsenic, dioxin and thallium criteria from the NTR into 40 CFR 131.45 to have one comprehensive human health criteria rule for Washington.

23http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showQuickView&substance_nmbr=1012.

24http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showQuickView&substance_nmbr=1024.

This rule revises the criteria that EPA promulgated for Washington in the NTR (with the exception of criteria for arsenic, dioxin, and thallium, and criteria that EPA approved in Washington's August 1, 2016 submittal), and establishes new human health criteria for 8 additional chemicals for which EPA now has 304(a) recommended criteria (and for which EPA did not approve Washington's submitted criteria): Selenium, Zinc, 1,2-Trans-Dichloroethylene, Acenaphthene, Butylbenzyl Phthalate, 2-Chloronaphthalene, 1,1,1-Trichloroethane, and 1,2,4-Trichlorobenzene. In 2001, EPA replaced its 304(a) recommended human health criteria for total mercury with a fish tissue-based human health criterion for methylmercury.25 Washington did not include human health criteria for mercury or methylmercury in its August 1, 2016 submittal. Therefore, with this final rule, EPA replaces the criteria for total mercury that EPA promulgated for Washington in the NTR with a methylmercury fish tissue criterion, based on EPA's 2001 304(a) recommendation but adjusted to incorporate the 175 g/day FCR that EPA used to derive revised human health criteria in Washington, as well as EPA's 2015 updated national default body weight of 80 kg.

25 USEPA. 2001. Guidance for Implementing the January 2001 Methylmercury Water Quality Criterion. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-823-R-01-001. https://www.epa.gov/wqc/guidance-implementing-january-2001-methylmercury-water-quality-criterion.

A few commenters expressed concern that Washington would not have the data or implementation guidance to properly implement a fish tissue criterion for methylmercury, and requested that EPA leave the NTR total mercury criteria in effect in Washington. The fish tissue methylmercury criterion reflects EPA's 2000 Methodology, the best available science, and supersedes all previous 304(a) human health mercury criteria recommendations published by EPA (except for the waters of the Great Lakes System), including the 304(a) recommended criteria that served as the basis for the total mercury criteria that EPA promulgated for Washington in the NTR. EPA recommends a fish tissue water quality criterion for methylmercury for many reasons. A fish tissue water quality criterion integrates spatial and temporal complexity that occurs in aquatic systems and affects methylmercury bioaccumulation. For this pollutant, a fish tissue criterion is more closely tied to the goal of protecting human health because it is based directly on the dominant human exposure route for methylmercury in the U.S., which is consumption of fish and shellfish. The concentration of methylmercury is also generally easier to quantify in fish tissue than in water and is less variable in fish and shellfish tissue over the time periods in which WQS are typically implemented in water quality-based controls, such as NPDES permits. Finally, fish consumption advisories for mercury are also based on the amount of methylmercury in fish tissue.26 While the purpose of a fish advisory is different from the purpose of a water quality criterion, it will be helpful to the public to have water quality criteria and fish consumption advisories for methylmercury expressed using the same terms. In response to comments regarding implementation of the methylmercury criterion, in 2010, EPA published the comprehensive Guidance for Implementing the January 2001 Methylmercury Water Quality Criterion (EPA 823-R-10-001), to aid states in implementing the fish tissue-based methylmercury water quality criterion. EPA is confident that Washington will be able to implement the fish tissue criterion using the information contained in that document, and EPA remains available to offer assistance in doing so. Thus there is no need or requirement to leave the NTR total mercury criteria in place in Washington.

26 While both water quality criteria and fish consumption advisories are designed ultimately to protect human health, they represent very different values and goals. Water quality criteria express or establish a desired condition and must protect the designated use, such as subsistence fishing. Fish consumption advisories start with existing levels of fish contamination resulting from impaired water quality, and provide advice to populations consuming such fish on limiting levels of consumption in order to reduce risk from contamination.

This final rule does not change or supersede any criteria that EPA previously promulgated for other states in the NTR, nor does it change any other elements of the NTR such as EPA's original basis for promulgation. For clarity in organization, EPA is withdrawing Washington from the NTR at 40 CFR 131.36 and incorporating the Washington-specific criteria in this rule (as well as the existing NTR criteria for arsenic, dioxin and thallium) into 40 CFR 131.45 so there is a single comprehensive set of federally promulgated criteria for Washington.

This rule applies to waters under the State of Washington's jurisdiction, and not to waters within Indian country,27 unless otherwise specified in federal law. Some waters located within Indian country already have CWA-effective human health criteria, while others do not.28 Several tribes are working with EPA to either revise their existing CWA-effective WQS, or obtain treatment in a similar manner as a state (TAS) status in order to adopt CWA-effective WQS in the near future. EPA will continue to work closely with tribes in Washington to ensure that they adopt human health criteria that are scientifically supported and protective of designated uses, in accordance with the CWA and EPA's regulations. In addition, on September 29, 2016, EPA published an Advanced Notice of Proposed Rulemaking in the Federal Register that seeks input on an approach that involves EPA promulgating baseline WQS for reservations that currently have no CWA-effective WQS, including such reservations within the State of Washington.29

27 See 18 U.S.C. 1151 for the definition of Indian country.

28 Indian country waters with CWA-effective WQS include those where (a) EPA has authorized a tribe to adopt WQS under the CWA for its reservation and the tribe has adopted standards that EPA has approved, and (b) EPA has promulgated federal WQS.

29 For more information, see: https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian.

B. Washington's Designated Uses and Tribal Reserved Fishing Rights a. EPA's Consideration of Tribal Treaty Rights

Under the Supremacy Clause of the U.S. Constitution, federal treaties have the same legal force as federal statutes.30 As such, the provisions of federal statutes should generally be read in harmony with treaties where they both apply. In certain instances, statutes may contain provisions indicating that they must be read in harmony with treaties. Such is the case with the CWA, which provides that the Act “shall not be construed as . . . affecting or impairing the provisions of any treaty of the United States.” 31

30 U.S. Const. art. IV, § 2: The “Constitution . . . of the United States . . . and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

31 CWA Section 511, 33 U.S.C. 1371.

In determining whether WQS satisfy the CWA and EPA's regulations, and when setting criteria for the protection of human health, it is necessary to consider other applicable laws, such as federal treaties (e.g., U.S. Treaties with Indians). While treaties do not expand EPA's authority, they are binding on the federal government. As a result, EPA has an obligation to ensure that its actions do not conflict with tribal treaty rights.32 For the foregoing reasons, and as further explained below, it is therefore necessary and appropriate to consider tribal treaties to ensure that EPA's actions under the CWA are in harmony with such treaties. See also EPA's Response to Comment document in the docket for this rule.

32 U.S. Const. art. IV, § 2; see United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1833) (recognizing that “the Constitution declares a treaty to be the supreme law of the land,” and that “a treaty is to be regarded . . . as equivalent to an act of the legislature”) and Worcester v. Georgia, 31 U.S. 515, 594 (1832) (“So long as . . . treaties exist, having been formed within the sphere of the federal powers, they must be respected and enforced by the appropriate organs of the federal government.”). See also EPA policies on considering treaty rights: Working Effectively With Tribal Governments: Resource Guide at pp. 49-52, 53 (August 1998) (explaining the key principles underlying the application of Indian treaty rights, and noting that “[f]ederal, state, and local agencies need to refrain from taking actions that are not consistent with tribal rights wherever they exist”); Commemorating the 30th Anniversary of the EPA's Indian Policy, Memorandum from Gina McCarthy to All EPA Employees, p. 1 (December 1, 2014) (reiterating that “EPA must ensure that its actions do not conflict with tribal treaty rights” and stating that “EPA programs should be implemented to enhance the protection of tribal treaty rights and treaty-covered resources when we have the discretion to do so”); EPA Policy for the Administration of Environmental Programs on Indian Reservations (November 8, 1984) (known as “EPA 1984 Indian Policy”).

b. Treaty-Reserved Subsistence Fishing Rights in Washington

The majority of waters under the jurisdiction of the State of Washington are subject to federal treaties with tribes.33 There are eight Stevens-Palmer Treaties relevant to the State of Washington through which 24 tribes reserved for themselves identical or nearly identical fishing rights within the boundaries of present-day Washington; specifically, the treaty-reserved “right of taking fish at usual and accustomed places, in common with all citizens of the Territory.” 34 The right to take fish at usual and accustomed places extends to lands formerly ceded by the tribes to the U.S. as described in the treaties, as well as to all places beyond the boundaries of the ceded territories that tribal members regularly used at treaty time.35

33See http://wdfw.wa.gov/hunting/tribal/treaty_history.html.

34See e.g. Treaty with the Yakima art. 3, June 9, 1855, 12 Stat. 951. In United States v. Winans, 198 U.S. 371 (1905), the Supreme Court adopted a “reservation of rights” approach in interpreting the Stevens Treaty with the Yakima Nation: “the treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.” Id. at 381. In contrast, “off reservation fishing by other citizens and residents of the state is not a right but merely a privilege which may be granted, limited or withdrawn by the state as the interests of the state or the exercise of treaty fishing rights may require.” U.S. v Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974) aff'd 520 F.2d 676 (9th Cir. 1975), cert. denied 423 U.S. 1086 (1976).

35See Seufert Bros. Co. v. U.S., 249 U.S. 194, 199 (1919). In U.S. v Washington, the court stated, citing Seufert Bros. Co., “every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters, is a usual and accustomed ground or station at which the treaty tribe reserved, and its members presently have, the right to take fish.” 384 F. Supp. at 332.

The parties to the treaties all recognized the importance of the fishing right for the tribes' subsistence, ceremonial, as well as commercial purposes.36 In U.S. v Washington, the district court made detailed findings of facts regarding the reserved fishing right, including the importance of subsistence fishing to the treaty tribes:

36 For a thorough discussion on the treaty negotiation and execution and meaning of the reserved fishing right, see e.g., U.S. v Washington, 384 F. Supp. at 348-359 (containing finding of facts regarding, inter alia, treaty status, pre-treaty role of fishing among northwest Indians, treaty background, negotiation and execution of the treaties, and post-treaty Indian fishing); see also id. at 340 (“The right to fish for all species available in the waters from which, for so many ages, their ancestors derived most of their subsistence is the single most highly cherished interest and concern of the present members of plaintiff tribes, with rare exceptions even among tribal members who personally do not fish or derive therefrom any substantial amount of their subsistence.”); id. at 343 (“The evidence shows beyond doubt that at treaty time the opportunity to take fish for personal subsistence and religious ceremonies was the single matter of utmost concern to all treaty tribes and their members.”); and U.S. v. Washington, No. 13-35474, 2016 U.S. App. LEXIS 11709, at *29 (9th Cir. June 27, 2016) (“The Indians reasonably understood Governor Stevens to promise not only that they would have access to their usual and accustomed fishing places, but also that there would be fish sufficient to sustain them.”).

At the treaty negotiations, a primary concern of the tribes, whose way of life was so heavily dependent upon harvesting anadromous fish, was that they have freedom to move about to gather food, particularly salmon, . . . at their usual and accustomed fishing places. . . . Subsequent to the execution of the treaties and in reliance thereon, the members of the [treaty tribes with reserved fishing rights in Washington] have continued to fish for subsistence, sport, and commercial purposes at their usual and accustomed places. Such fishing provided and still provides an important part of their livelihood, subsistence and cultural identity. The Indian cultural identification with fishing is primarily dietary, related to the subsistence fishery, and secondarily associated with religious ceremonies and commercial fishing.37

37U.S. v Washington, 384 F. Supp. at 355-358 (internal citations to exhibits omitted).

Relevant case law, including Supreme Court precedents, unequivocally confirms that the treaty-reserved right to take fish includes the right to take fish for subsistence purposes.38 Historical and current evidence of tribal members' exercise of the treaty-reserved subsistence fishing right can be found in heritage FCR reports and contemporary FCR surveys (for tables of relevant FCRs, see EPA's Response to Comment document in the docket for this rule).

38See e.g., Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 678-679 (1979) (Because the Indians had always exercised the right to meet their subsistence and commercial needs by taking fish from treaty area waters, they would be unlikely to perceive a “reservation” of that right as merely the chance, shared with millions of other citizens, occasionally to dip their nets into the territorial waters. Moreover, the phrasing of the clause quite clearly avoids placing each individual Indian on an equal footing with each individual citizen of the State.”); U.S. v. Washington, 2016 U.S. App. LEXIS 11709 at *28 (Observing that to the Tribes, the Stevens Treaties' “principal purpose was to secure a means of supporting themselves once the Treaties took effect,” and to that end, “[s]almon were a central concern.”).

As explained above, the Stevens-Palmer Treaties provide tribes the right to exercise subsistence fishing practices on waters throughout the State of Washington. EPA concludes that the purpose for which tribes reserved such fishing rights through treaties with the U.S. has important implications for water quality regulation under the CWA. Fundamentally, the tribes' ability to take fish for their subsistence purposes under the treaties would be substantially affected or impaired if it were not supported by water quality sufficient under the CWA to ensure that tribal members can safely eat the fish for their own subsistence.

Many areas where treaty-reserved fishing rights are exercised cannot be directly protected or regulated by tribal governments to ensure adequate water quality, and therefore the responsibility falls to the federal government (and the states) to ensure their protection. It is therefore appropriate and necessary for EPA (and states) to consider the tribal reserved rights within the framework of the CWA, to ensure water quality protection for treaty-reserved subsistence fishing rights. EPA's consideration of treaty-reserved fishing rights within the framework of the CWA leads to the conclusion, as described below, that the human health fishing uses for waters in Washington include subsistence fishing, as informed by the tribes' legally protected right to continue to take fish for subsistence purposes.39

39 While EPA's action is based on harmonizing the requirements of the CWA with the terms of the treaty-reserved subsistence fishing right, the action also is consistent with federal Indian law principles addressing subsidiary treaty rights. A written legal opinion from the Solicitor of the U.S. Department of Interior (DOI) to EPA analyzed whether tribal reserved fishing rights include subsidiary rights to sufficient water quality. Letter from Hilary C. Tompkins, Solicitor, DOI, to Avi Garbow, General Counsel, EPA, regarding Maine's WQS and Tribal Fishing Rights of Maine Tribes (January 30, 2015). Although DOI's legal opinion primarily involved an analysis of fishing rights of tribes in Maine in connection with EPA's February 2, 2015 decision to disapprove WQS applied to waters of Indian Lands in Maine, its discussion of tribal fishing rights and water quality has relevance to tribes with reserved fishing rights in Washington. DOI's legal opinion identified several court decisions, including Supreme Court decisions interpreting the reserved fishing right in the Stevens Treaties, which have held that fishing rights for tribes encompass subsidiary rights that are necessary to render those rights meaningful. In Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, the United States Supreme Court held that tribes with reserved fishing rights are entitled to something more tangible than “merely the chance . . . occasionally to dip their nets into the territorial seas.” 443 U.S. 658, 679 (1979). Consistent with this reasoning, courts have held that treaty-reserved fishing rights entail the right to access fishing grounds and the right to water quantity sufficient to support fish habitat. See e.g., United States v. Winans, 198 U.S. 371, 384 (1905) (tribe must be allowed to cross private property to access traditional fishing ground); Seufert Bros. Co. v. United States, 249 U.S. 194 (1919) (tribe entitled to cross over and temporarily use any sites which they were accustomed to using at treaty time, including sites outside their ceded territories); United States v. Adair, 723 F .2d 1394, 1409-10 (9th Cir. 1983) (holding that the tribe's fishing right implicitly reserved sufficient waters to “secure to the Tribe a continuation of its traditional . . . fishing lifestyle”; Colville Confederated Tribes v. Walton, 647 F.2d 42, 47-48 (9th Cir. 1981) (implying reservation of water to preserve tribe's replacement fishing grounds). Consistent with these precedents, in June 2016 the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's finding that barrier culverts constructed by the State of Washington obstructing fish passage were in violation of tribal fishing rights set forth in the Stevens Treaties, noting that “the Tribes' right of access to their usual and accustomed fishing places would be worthless without harvestable fish.” United States v. Washington, 2016 U.S. App. LEXIS 11709 at *31. The court also acknowledged that the fishing clause of the Stevens Treaties could give rise to other environmental obligations, but that those would need to be addressed on a case-by-case basis depending on the precise nature of the action. Id. at *18-19. Consistent with this body of case law, DOI's legal opinion concludes that “fundamental, longstanding tenets of federal Indian law support the interpretation of tribal fishing rights to include the right to sufficient water quality to effectuate the fishing right.” DOI Letter at 10.

c. Use(s) of the Water(s) in Question

Consistent with EPA's September 14, 2015 proposed rule for Washington, in order to effectuate and harmonize treaty-reserved fishing rights with the CWA, EPA has determined that such rights must be appropriately considered when determining which criteria are sufficient to adequately protect Washington's designated uses. Looking at the treaty-reserved subsistence fishing right within the CWA water quality framework, the first step is to examine the use of the water(s) in question. The CWA generally assigns to a state the responsibility of determining the designated uses of its waters (subject to certain restrictions at 40 CFR 131.10),40 and in Washington the state's designated uses include fish and shellfish harvesting.41 As explained above, through treaties, tribes reserved specific fishing rights in Washington's waters, including the right to take fish from such waters for their subsistence. In order to effectuate these rights in harmony with the CWA, EPA has interpreted the state's EPA-approved designated fish and shellfish harvesting use to include or encompass a subsistence fishing component based on, and consistent with, the rights reserved to the tribes through the treaties. As discussed in more detail below, EPA construes the CWA to require that, when establishing WQS for these waters, the tribal members must be considered the target general population for the purposes of setting risk levels to protect the subsistence fishing use.

40 33 U.S.C. 1251(a)(2), 1313(c)(2)(A).

41 See WAC 173-201A-600 and WAC 173-201A-610.

d. Target General Population for Deriving Criteria Protective of the Use(s)

Developing criteria to protect the fish and shellfish harvesting use, which includes subsistence fishing as informed by reserved fishing rights, necessarily involves identifying tribal members with reserved fishing rights as the target population for protection. EPA's conclusion to identify tribes as the target population is based on EPA's CWA implementing regulations requiring criteria to support the most sensitive use (i.e., subsistence fishing) and EPA's 2000 Methodology recommendation that priority be given to identifying and protecting highly exposed populations. Further, in order to derive water quality criteria sufficient under the CWA to ensure that the tribes' treaty-reserved right to take fish for subsistence purposes is not substantially affected or impaired, it is reasonable and appropriate to identify tribes as the target general population for protection, rather than a subpopulation, and apply the 2000 Methodology's recommendations on exposure for the general population to the tribal target population.

Per EPA's regulations at 40 CFR 131.11(a)(1), water quality criteria must contain sufficient parameters or constituents to protect the designated use, and for waters with multiple uses, the criteria must support the most sensitive use. In the case of Washington's human health-related uses, the most sensitive use is fish and shellfish harvesting, which, as explained above, EPA has interpreted to include or encompass a subsistence fishing component based on, and consistent with, the rights reserved to the tribes through the treaties. Developing water quality criteria to protect the subsistence fishing component of the fish or shellfish harvesting use necessarily involves identifying the population exercising that use.

EPA's decision to identify tribes as the target population is further supported by EPA guidance for developing water quality criteria to protect human health. As explained in EPA's 2000 Methodology, the choice of the particular population to protect is an important decision to make when setting human health criteria.42 EPA recommends that states provide adequate protection from adverse health effects to the general population, as well as to highly exposed populations, such as recreational and subsistence fishers, two distinct groups with FCRs that may be greater than the general population.43 In fact, EPA's 2000 Methodology recommends considering how to protect both susceptible and highly exposed populations when setting criteria:

42 EPA's 2000 Methodology, 2-1.

43Id. at 2-2.

EPA recommends that priority be given to identifying and adequately protecting the most highly exposed population. Thus, if the State or Tribe determines that a highly exposed population is at greater risk and would not be adequately protected by criteria based on the general population, and by the national 304(a) criteria in particular, EPA recommends that the State or Tribe adopt more stringent criteria using alternative exposure assumptions.44

44 EPA's 2000 Methodology, 2-1—2. See also EPA's 2000 Methodology, 4-17 (“When choosing exposure factor values to include in the derivation of a criterion for a given pollutant, EPA recommends considering values that are relevant to population(s) that is (are) most susceptible to that pollutant. In addition, highly exposed populations should be considered when setting criteria.”).

Therefore, consistent with the guidance, EPA identifies the tribal population as the target population for protection and the subsistence fishing use must be the focus of the risk assessment supporting water quality criteria to adequately protect that use. Deriving criteria protective of the tribal target population necessarily involves determining the appropriate inputs for calculating protective criteria for tribal subsistence fishers, such as the FCR and cancer risk level.

EPA's approach in the 2000 Methodology, and its approach used for deriving national 304(a) recommended criteria, is for human health water quality criteria to provide a high level of protection for the general population (for example, FCRs designed to represent “the general population of fish consumers,” or a cancer risk level that “reflects an appropriate risk for the general population”), while recognizing that more highly exposed “subpopulations” may face greater levels of risk.45 The 2000 Methodology does not, however, speak to or envision the unique situation of setting WQS that cover areas where tribes have treaty-reserved rights to practice subsistence fishing.46 Nevertheless, it is possible to apply the general principles outlined in the 2000 Methodology to this situation, as informed by the treaties.

45See EPA's 2000 Methodology, 2-6—7, 4-24—25.

46 In response to comments on EPA's 1998 draft Human Health Methodology revisions, the Agency responded: “As stated in the 1998 draft Methodology revisions, `risk levels and criteria need to be protective of tribal rights under federal law (e.g., fishing, hunting, or gathering rights) that are related to water quality.' We believe the best way to ensure that Tribal treaty and other rights under Federal law are met, consistent with the Federal trust responsibility, is to address these issues at the time EPA reviews water quality standards submissions.” (See 65 FR 66444, 66457 November 3, 2000).

In light of the presence of the treaty-reserved fishing rights in Washington, interpreted by the U.S. Supreme Court to encompass, among other things, subsistence fishing, and EPA's interpretation of Washington's fish and shellfish harvesting use to include subsistence fishing, it is reasonable and appropriate to require that tribes with such rights be considered as the target general population for deriving criteria protective of the use rather than a sensitive subpopulation within the overall population of Washington. Treating tribes as the target general population will help derive water quality criteria sufficient under the CWA to ensure that the tribes' treaty-reserved right to take fish for subsistence purposes is not substantially affected or impaired. Therefore, the 2000 Methodology's recommendations on exposure for the target general population can be applied accordingly. EPA's conclusion to treat tribes as the target general population, as opposed to a subpopulation, is further supported by relevant case law interpreting the treaty-reserved fishing rights applicable in Washington; specifically the phrase “in common with all citizens of the territory.”

Treating tribes as the target population instead of a sensitive subpopulation also impacts another important input parameter used to derive human health criteria, the cancer risk level. For carcinogenic pollutants, EPA's 2000 Methodology recommends that states protect the general population to a level of incremental cancer risk no greater than one in one hundred thousand to one in one million (1 × 10−5 to 10−6). For over 20 years, Washington has used 10−6 as the level of risk that must be used to establish human health criteria for carcinogenic pollutants. EPA's 2000 Methodology indicates that if there are highly exposed groups or subpopulations within that target general population, such as subsistence consumers, WQS should protect those consumers to a level of incremental risk no greater than one in ten thousand (1 × 10−4).47 However, where treaty-reserved tribal fishing rights apply to particular waters, it would be unreasonable to expose the communities exercising those rights to levels of risk above what would be reasonable for the general population of the state. See section III.C.b for more information on cancer risk level.

47 2000 Methodology, 2-6.

e. Water Quality Criteria Sufficient To Protect the Use(s)

The data used to determine the FCR are critical to deriving criteria that will protect the subsistence fishing portion of the fish and shellfish harvesting designated use. EPA provides a recommended national default FCR for the general population but strongly recommends the use of local or regional data, where available, over default values.48 Further, as EPA explained in its January 2013 Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions, it is important to avoid selecting a FCR that reflects consumption that is suppressed due to concerns about the safety of available fish. Under certain circumstances, it may also be relevant to look at the availability of fish when considering suppression effects on current FCRs.49 EPA maintains that it is important, as a CWA goal, to avoid the suppression effect that may occur when criteria are derived using a FCR for a given target population that reflects an artificially diminished level of fish consumption from an appropriate baseline level of consumption for that population.50 To use a FCR that is suppressed would not result in criteria that actually protect a fishing use because it would merely reinforce the existing suppressed use, or worse, set in motion a “downward spiral” 51 of further reduction/suppression of fish consumption due to concerns about the safety of available fish or depleted fisheries. The CWA is meant not merely to maintain the status quo, but to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. Therefore, deriving criteria using an unsuppressed FCR furthers the restoration goals of the CWA and ensures protection of human health-related designated uses (as pollutant levels decrease, fish habitats are restored, and fish availability increases over time).

48 EPA's 2000 Methodology, 4-24—4-25 (“EPA's first preference is that States and authorized Tribes use the results from fish intake surveys of local watersheds within the State or Tribal jurisdiction to establish fish intake rates that are representative of the defined populations being addressed for the particular waterbody.”)

49 As noted by the National Environmental Justice Advisory Council in the 2002 publication Fish Consumption and Environmental Justice, “a suppression effect may arise when fish upon which humans rely are no longer available in historical quantities (and kinds), such that humans are unable to catch and consume as much fish as they had or would. Such depleted fisheries may result from a variety of affronts, including an aquatic environment that is contaminated, altered (due, among other things, to the presence of dams), overdrawn, and/or overfished. Were the fish not depleted, these people would consume fish at more robust baseline levels. . . . In the Pacific Northwest, for example, compromised aquatic ecosystems mean that fish are no longer available for tribal members to take, as they are entitled to do in exercise of their treaty rights.”). National Environmental Justice Advisory Council, Fish Consumption and Environmental Justice, p.44, 46 (2002) available at https://www.epa.gov/sites/production/files/2015-02/documents/fish-consump-report_1102.pdf.

50See id. at 43.

51See id. at 47.

CWA section 303(c)(2)(A) requires that water quality criteria be “based upon” applicable designated uses, and that such uses and criteria “shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this [Act].” The “purposes of this [Act]” are in section 101, and include, among other things, “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters” and “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” EPA's implementing water quality regulations at 40 CFR 131.11 require water quality criteria to be based on sound scientific rationale and sufficient to protect the designated use, regardless of whether that use is currently being met. A subsistence fishing designated use, by definition, represents a level of fish consumption that is adequate to provide subsistence, regardless of whether such consumption is occurring today. It is entirely consistent with the CWA and regulations for EPA to determine that to protect the designated use, it is necessary and appropriate to derive the human health criteria using a fish consumption rate that reflects a subsistence level of consumption that is not artificially suppressed as a result of concerns about pollution or fish contamination where such data are available.

Any fish consumption rate used in setting criteria to protect a subsistence fishing use must allow for the consumption of fish from local waters at levels that could sustain and be protective of members of the target population practicing a subsistence lifestyle. Water quality criteria derived using a FCR below a level that would be adequate to sustain members of the target population exercising a subsistence use, such as tribal members who have a history of subsistence fishing in Washington, would not be protective of that use. In this context, use of an unsuppressed rate, where data to determine that rate are available, would ensure that the resulting criteria are protective of the subsistence use.

The importance of relying on an unsuppressed FCR, where data are available, is especially evident where the subsistence use is based in whole or in part on tribal treaty and other reserved subsistence fishing rights. This is because if human health criteria are set at a level that assumes only suppressed fish consumption, the waters will only be protected to support that level of suppressed fish consumption and thus never fully support—and potentially even may directly impair—the tribes' legal right to take fish for subsistence purposes. Accordingly, where adequate data are available to clearly demonstrate what the current unsuppressed FCR is for the relevant target population, the selected FCR must reflect that value. In the absence of such data, states, tribes, and EPA could consider upper percentile FCRs of local contemporary fish consumption surveys (such as the 95th or 99th percentile), heritage FCR data for the target population, and/or FCRs that provide for a subsistence fishing lifestyle. Consultation with tribes is important to ensure that all data and information relevant to this issue are considered.

Although treaties do not cover all waters in Washington, they cover the vast majority of the state's waters. Additionally, where treaty and non-treaty reserved rights apply on waters downstream of waters without reserved fishing rights, upstream WQS must provide for the attainment and maintenance of downstream WQS in accordance with EPA's regulations at 40 CFR 131.10(b). Based on a GIS analysis included in the docket for this final rulemaking, EPA concluded that greater than 90 percent of waters in Washington are covered by treaty rights and/or are upstream of waters with such rights or waters in Oregon (see section III.C.a). For any remaining waters in Washington, where reserved rights do not apply and that are not upstream of waters with such rights or waters in Oregon, it would be administratively burdensome to develop separate criteria to apply to such a small subset of waters, and would be difficult to implement separate criteria with a patchwork of protection among these areas when administering the WQS, NPDES permitting, and other programs. Therefore, EPA applies these final criteria to all waters under Washington's jurisdiction.

Many commenters supported EPA's decisions to derive criteria protective of the tribal population exercising their treaty-reserved fishing rights in Washington as the target general population, and to apply the resulting criteria to all waters under Washington's jurisdiction. Many other commenters did not support these decisions, and argued that EPA did not have a scientific or legal basis to interpret Washington's designated uses to encompass subsistence fishing and to treat the tribal population with treaty-reserved fishing rights as the target general population for protection under such use. For additional responses to these comments, see EPA's Response to Comment document in the docket for this rule.

C. Washington-Specific Human Health Criteria Inputs a. Fish Consumption Rate

In Washington there are 24 tribes with treaty-reserved fishing rights, rights that encompass the right to fish for subsistence purposes, and several local and regional FCR surveys and heritage tribal consumption reports with widely varying estimates of tribal FCRs in Washington (for tables of relevant FCRs, see EPA's Response to Comment document in the docket for this rule). Available heritage FCRs range from 401 to 995 g/day, and contemporary survey FCRs range from 63 to 214 g/day (mean FCRs) and from 113 to 489 g/day (90th percentile FCRs). The discrepancy between contemporary and heritage FCRs suggests that current FCRs for certain tribal consumers in Washington may be suppressed.52 53 It is currently unclear how a contemporary fish consumption survey might quantitatively account for suppression, resulting in estimates of current FCRs that are unsuppressed to the maximum degree practicable. There is no local survey of contemporary fish consumption in Washington adjusted specifically to account for suppression, and no survey is a clear representation of current unsuppressed consumption for all tribes in Washington. Consistent with the principles outlined above, EPA considered the available, scientifically sound fish consumption data for Washington tribes and consulted with tribal governments to select a FCR for this final rulemaking.

52 The number of fish advisories and closures due to contamination also suggest that contemporary FCRs may be suppressed due to concerns about pollution. See Washington Department of Health, Fish Consumption Advisories, available at http://www.doh.wa.gov/CommunityandEnvironment/Food/Fish/Advisories.

53 Heritage rates refer to the rates of fish intake consistent with traditional tribal practices, prior to contact with European settlers.

The Washington tribes have generally agreed that 175 g/day is acceptable for deriving protective criteria at this time, when accompanied by other protective input parameters to calculate the criteria. However, EPA recognizes that some tribes have raised concerns as to whether a FCR of 175 g/day reasonably reflects current unsuppressed consumption rates of tribes within the State of Washington, based on the best currently available information. A FCR of 175 g/day approximates the 95th percentile consumption rate of surveyed tribal members from the CRITFC study 54 and includes anadromous fish, which is reasonable given that these marine species reside in Washington's nearshore (i.e., within three miles of the coast) waters, especially Puget Sound, and accumulate pollutants discharged to these waters during a significant portion of their lives. The CRITFC survey also includes four tribes (three of which have treaty-reserved rights in Washington, the most of any one contemporary FCR survey in Washington) along the Columbia River in Washington, Idaho, and Oregon. Given this, and also considering the variability in heritage and contemporary FCRs and the uncertainty regarding suppression effects on current FCRs, the CRITFC survey provides scientifically sound estimates of fish consumption for the purpose of deriving a Washington statewide FCR for the tribal target general population.

54Fish Consumption Survey of the Umatilla, Nez Perce, Yakama, and Warm Springs Tribes of the Columbia River Basin (Columbia River Inter-Tribal Fish Commission (CRITFC), 1994).

Additionally, Oregon, much of which is downstream from Washington (or cross-stream in the Columbia River where it forms the border between the two states), used a FCR of 175 g/day to derive statewide human health criteria, which EPA approved in 2011. Use of this FCR to derive Washington's criteria will thus help ensure the attainment and maintenance of downstream WQS in Oregon.

Many commenters supported EPA's selected FCR, as well as the Agency's position that it is important to consider suppression effects on the FCR in general, and necessary and appropriate to do so where subsistence fishing is a reserved right and encompassed by the designated use of the waters. Some commenters expressed concern that 175 g/day was not high enough to reflect current or historical consumption rates of all tribes in Washington. Many other commenters expressed the opposite concern, that 175 g/day was unreasonably high in order to protect Washington residents, and argued that treaty-reserved rights do not confer the right to eat fish at unsuppressed levels. Some of those commenters also argued that the CWA does not mention suppression. For detailed responses to these comments, see EPA's Response to Comment document in the docket for this rule.

b. Cancer Risk Level

EPA derives final human health criteria for carcinogens in Washington using a cancer risk level of one in one million (10−6), based on Washington's longstanding use of that cancer risk level, EPA guidance, tribal reserved fishing rights, and downstream protection requirements.

To derive final human health criteria for each state in the NTR, EPA selected a cancer risk level based on each state's policy or practice regarding what risk level should be used when regulating carcinogens in surface waters. In its official comments on EPA's proposed NTR in 1992, Washington asked EPA to promulgate human health criteria using a cancer risk level of 10−6, stating, “The State of Washington supports adoption of a risk level of one in one million for carcinogens. If EPA decides to promulgate a risk level below one in one million, the rule should specifically address the issue of multiple contaminants so as to better control overall site risks.” (57 FR 60848, December 22, 1992). Accordingly, in the NTR, EPA used a cancer risk level of 10−6 (one in one million) to derive human health criteria for Washington. Subsequently, Washington adopted and EPA approved a provision in the state's WQS that reads: “Risk-based criteria for carcinogenic substances shall be selected such that the upper-bound excess cancer risk is less than or equal to one in a million” (WAC 173-201A-240(6)). In Washington's August 1, 2016 submittal, the cancer risk level is identified in the new text and reformatted toxics criteria table at WAC 173-201A-240.

Subsequent to promulgating the NTR, EPA issued its 2000 Methodology, which states that when promulgating water quality criteria for states and tribes, EPA intends to use the 10−6 cancer risk level, which reflects an appropriate risk for the general population.55 In this action, as described above, tribes with treaty-reserved rights in Washington are the target general population for the purpose of deriving revised criteria to protect the subsistence fishing uses of Washington's waters. Because those tribes are the general population in this case, EPA's selection of a 10−6 cancer risk level for the tribal target general population is consistent with current EPA guidance, specifically the 2000 Methodology.

55 EPA's 2000 Methodology, pages 2-6.

In addition, use of a cancer risk rate of 10−6 ensures that the resulting human health criteria for carcinogens protect the subsistence fishing component of the designated use. Due to uncertainty regarding suppression effects (see sections II.C, III.B, and III.C.a, and EPA's Response to Comment document in the docket for this rule), using a cancer risk level of 10−6 along with a FCR of 175 g/day ensures that tribal members with treaty-reserved fishing rights will be protected at an acceptable risk level for the target general population. Throughout tribal consultation, the tribes generally supported 175 g/day as an acceptable FCR for purposes of revising Washington's human health criteria at this time, when accompanied by other protective input parameters (e.g., a cancer risk level of 10−6), to account for the uncertainty around an appropriate FCR value reflective of tribal subsistence fishing.

Finally, as discussed in section III.C.a, many of Washington's rivers are in the Columbia River Basin, upstream of Oregon's portion of the Columbia River. Oregon's criteria are based on a FCR of 175 g/day and a cancer risk level of 10−6. EPA's decision to derive human health criteria for Washington using a cancer risk level of 10−6 along with a FCR of 175 g/day helps ensure that Washington's criteria will ensure the attainment and maintenance of Oregon's downstream WQS as required by 40 CFR 131.10(b).

Many commenters supported EPA's selection of a 10−6 cancer risk level, and EPA's rationale for doing so. Many other commenters disagreed and argued that deriving human health criteria for Washington using a 10−5 cancer risk level is appropriate and consistent with EPA guidance and past practice. Many of these commenters stated that tribal treaties did not confer rights to a particular level of risk. Additionally, some commenters supported EPA's consideration of downstream WQS in Oregon when establishing the criteria upstream, while others expressed concern that EPA was suggesting that Washington's upstream criteria must be identical to Oregon's downstream criteria and in doing so, acting inconsistently with its 2014 Frequently Asked Questions document on downstream protection.56 For detailed responses to these comments, see EPA's Response to Comment document in the docket for this rule.

56https://nepis.epa.gov/Exe/ZyPDF.cgi/P100LIJF.PDF?Dockey=P100LIJF.PDF.

c. Relative Source Contribution

EPA recommends using a RSC for non-carcinogens and nonlinear carcinogens to account for sources of exposure other than drinking water and consumption of inland and nearshore fish and shellfish (see section II.C.d). In 2015, after evaluating information on chemical uses, properties, occurrences, releases to the environment and regulatory restrictions, EPA developed chemical-specific RSCs for non-carcinogens and nonlinear carcinogens ranging from 0.2 (20 percent) to 0.8 (80 percent) following the Exposure Decision Tree approach described in EPA's 2000 Methodology.57 58 EPA proposed to use these same RSCs to derive human health criteria for Washington, and where EPA did not update the nationally recommended criteria for certain pollutants in 2015, EPA proposed to use a RSC of 0.2 to derive human health criteria for those pollutants in Washington to ensure protectiveness.

57 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. https://www.epa.gov/wqc/human-health-water-quality-criteria.

58 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

Several commenters supported EPA's use of RSCs to account for other sources of pollutant exposure. Several others disagreed, arguing that water quality criteria under the CWA cannot control or consider sources of exposure other than from drinking water and eating fish and shellfish, so human health criteria should not account for these sources. Many of the commenters, in addition to criticizing the concept of RSCs as overly-conservative, argued that EPA was double-counting exposure to anadromous fish (which EPA considers marine in the national dataset) by both including them in the FCR and using the pollutant-specific RSCs that EPA pairs with an inland and nearshore-only FCR in its 304(a) national recommended human health criteria. Commenters argued that this is inconsistent with EPA's guidance, which recommends that states adjust the RSC to reflect a greater proportion of the RfD being attributed to water, fish and shellfish intake in instances where the FCR includes freshwater, estuarine and all marine fish consumption.59 For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.

59 USEPA. January 2013. Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

Additionally, after further evaluation of the proposed revised human health criteria for antimony, EPA determined that the existing 304(a) national recommended criteria for antimony (last updated in 2002) use a pollutant-specific RSC of 0.4. EPA intended to apply a 0.2 RSC as a protective approach only where pollutant-specific RSCs were not already developed, which is not the case for antimony.60

60http://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=20003IEI.txt See also: National Primary Drinking Water Regulations-Synthetic Organic Chemicals and Inorganic Chemicals; National Primary Drinking Water Regulations Implementation, 57 FR 31776, July 17, 1992.

While the selected FCR of 175 g/day does not include all marine fish (e.g., it does not include consumption of species such as swordfish, tuna, etc.), EPA acknowledges that the criteria as proposed may have double-counted potential exposure to some pollutants in certain marine fish that are anadromous (e.g., salmon). Therefore, EPA reviewed the RSCs in the proposed rule in light of EPA's guidance, which includes both the Exposure Decision Tree and associated discussion in EPA's 2000 Methodology, as well as EPA's recommendation to adjust the RSC when the FCR includes freshwater, estuarine, and all marine fish consumption. Arguably, EPA's guidance does not consider this exact scenario where the selected FCR includes some, but not all, species that EPA classifies as marine in the national NHANES dataset (and excludes some species that EPA classifies as nearshore in the national NHANES dataset, i.e., shellfish).

One way to adjust the RSC values to account for inclusion of marine fish in the FCR is to examine the ratio of the national data characterizing all fish consumption rates versus inland and nearshore-only fish consumption rates derived from the NHANES dataset, and apply this ratio to the proportion of the RfD reserved for inland and nearshore fish consumption in the RSC. This approach assumes that the pollutant concentrations in anadromous fish are the same as the pollutant concentrations in inland and nearshore fish, which is the same assumption inherent in including multiple fish categories in the FCR for criteria calculation. This approach further assumes that the ratio of all fish to inland and nearshore fish from NHANES data approximates the ratio of inland, nearshore, and anadromous fish to just inland and nearshore fish from CRITFC data. At the 90th percentile rate of consumption, the national adult consumption rate from NHANES data for all fish is 53 g/day and 22 g/day for inland and nearshore-only fish, or a ratio of 2.4. Applying this to a RSC of 0.2 yields 0.48, or 0.5 rounding to a single decimal place. Because the selected FCR includes some but not all marine species, EPA decided to use this approach to adjust the RSC values. However, EPA only adjusted RSC values to 0.5 for criteria calculations previously using a RSC between 0.2 and 0.5.

There are important considerations in assigning a RSC, such as the total number of potential exposure routes from sources other than fish consumption, which compels caution in using this approach in all cases. As such, EPA decided to retain RSC values of 0.5 and above, recognizing the compelling need to account for the other potential exposure sources, including marine fish not accounted for in the FCR of 175 g/day, consistent with the logic and procedures used in establishing the national 304(a) criteria recommendations. The Exposure Decision Tree in EPA's 2000 Methodology only recommends using a RSC above 0.5 when there are no significant known or potential uses/sources other than the source of concern (Box 7, Figure 4-1 in EPA's 2000 Methodology) or there are sufficient data available on each source to characterize the exposure to those sources (Box 8C, Figure 4-1). Neither of these conditions are met for most of the pollutants in the final rule for Washington. EPA is not adjusting the RSCs for pollutants that already have national recommended RSCs greater than or equal to 0.5 (2-Chloronaphthalene (0.8), Endrin (0.8), gamma-BHC/Lindane (0.5), and methylmercury (2.7 × 10−5 subtracted from the RfD, which equates to a RSC of approximately 0.73). See Table 1, column B2 for a list of EPA's final RSCs by pollutant.

d. Body Weight

EPA calculates final human health criteria for Washington using a body weight of 80 kg, which represents the average weight of a U.S. adult and is consistent with EPA's 2015 updated national default body weight (see section II.C.c).61 Local tribal survey data relevant to Washington are also consistent with EPA's national adult body weight of 80 kg.62 Most commenters were silent on EPA's proposal to use a body weight of 80 kg to calculate human health criteria for Washington. A few commenters were concerned that 80 kg would not ensure adequate protection of women and children, and may not be representative of all residents in Washington based on limited local or regional data on body weight specific to Washington residents. EPA understands these concerns, but decided that the survey on which EPA's national default of 80 kg is based provides the most comprehensive dataset to establish a body weight value for deriving statewide human health criteria for Washington, and is consistent with the local tribal survey data mentioned above. The data cited by commenters do not provide sufficient evidence to come up with an alternative statewide body weight input parameter since the studies cited are limited in scope and pertain to specific subpopulations. For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.

61 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

62 USEPA Region 10. August 2007. Framework for Selecting and Using Tribal Fish and Shellfish Consumption Rates for Risk-Based Decision Making at CERCLA and RCRA Cleanup Sites in Puget Sound and the Strait of Georgia. Appendix B. http://yosemite.epa.gov/r10/CLEANUP.NSF/7780249be8f251538825650f0070bd8b/e12918970debc8e488256da6005c428e/$FILE/Tribal%20Shellfish%20Framework.pdf.

e. Drinking Water Intake

EPA calculates final human health criteria for Washington using a drinking water intake rate of 2.4 L/day, consistent with EPA's 2015 updated national default drinking water intake rate (see section II.C.c).63 Most commenters were silent on or agreed with EPA's proposal to use a drinking water intake rate of 2.4 L/day to calculate human health criteria for Washington. However, two commenters stated this input was unnecessary in human health criteria derivation. Since at least the 1980s, EPA has included the drinking water exposure pathway in the development of human health criteria in order to protect water bodies with a drinking water designated use. EPA also provides the option of using organism-only human health criteria for water bodies where there is no drinking water use. One commenter stated that 2.4 L/day was an underestimate, and expressed concern that this value is not protective of tribal members who consume more water. EPA determined that it is appropriate to use its 2015 final national default drinking water intake rate, since it was adjusted pursuant to public comments after EPA issued the draft national default rate of 3 L/day in 2014. EPA acknowledges the concerns about members of the target general population who may consume larger amounts of water, but EPA does not have data (and did not receive any during the public comment period) with which to calculate a Washington-specific drinking water intake rate. For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.

63 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

f. Pollutant-Specific Reference Doses and Cancer Slope Factors

As part of EPA's 2015 updates to its 304(a) recommended human health criteria, EPA conducted a systematic search of eight peer-reviewed, publicly available sources to obtain the most current toxicity values for each pollutant (RfDs for non-carcinogenic effects and CSFs for carcinogenic effects).64 EPA calculates final human health criteria for Washington using the same toxicity values that EPA used in its 2015 304(a) criteria updates, to ensure that the resulting criteria are based on a sound scientific rationale. Where EPA did not update criteria for certain pollutants in 2015 and those pollutants are included in this final rule, EPA uses the toxicity values that the Agency used the last time it updated its 304(a) criteria for those pollutants as the best available scientific information. See Table 1, columns B1 and B3 for a list of EPA's final toxicity factors by pollutant.

64 Final Updated Ambient Water Quality Criteria for the Protection of Human Health, (80 FR 36986, June 29, 2015). See also: USEPA. 2015. Final 2015 Updated National Recommended Human Health Criteria. U.S. Environmental Protection Agency, Office of Water, Washington, DC https://www.epa.gov/wqc/human-health-water-quality-criteria.

In general, commenters were supportive of EPA using the latest and most scientifically defensible toxicity values to derive human health criteria for Washington. Some commenters expressed concern that where EPA did not update its 304(a) national recommended human health criteria for particular pollutants in 2015, the toxicity values from the existing 304(a) criteria for those pollutants were no longer valid. In particular, those commenters expressed concern about the CSFs for arsenic and PCBs, and the RfD for methylmercury, and argued that EPA should not revise Washington's criteria for those pollutants until toxicity factors are updated in the future. Unlike the situation with the toxicity factors for arsenic, dioxin and thallium (see section III.A), there is not sufficient scientific uncertainty surrounding the CSF for PCBs or the RfD for methylmercury to warrant delaying revision to Washington's human health criteria for these pollutants. For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.

g. Pollutant-Specific Bioaccumulation Factors

For the 2015 national 304(a) human health criteria update, EPA estimated chemical-specific BAFs using a framework for deriving national BAFs described in EPA's 2000 Methodology.65 Because the surveyed population upon which the 175 g/day FCR is based consumed almost exclusively trophic level four fish (i.e., predator fish species), EPA uses the trophic level four BAF from the 2015 304(a) human health criteria updates in conjunction with the 175 g/day FCR, in order to derive protective criteria.66 Where in 2015, EPA estimated BAFs from laboratory-measured BCFs and therefore derived a single pollutant-specific BAF for all trophic levels, EPA uses those single BAFs from the 2015 304(a) human health criteria updates. Where EPA's existing 304(a) recommended human health criteria for certain pollutants still incorporate a BCF, and those pollutants are included in this final rule, EPA uses those BCFs as the best available scientific information. See Table 1, columns B4 and B5 for a list of EPA's final bioaccumulation factors by pollutant.

65 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. https://www.epa.gov/wqc/human-health-water-quality-criteria.

66Fish Consumption Survey of the Umatilla, Nez Perce, Yakama, and Warm Springs Tribes of the Columbia River Basin (Columbia River Inter-Tribal Fish Commission (CRITFC), 1994)

Many commenters supported EPA's choice to use the latest and most scientifically defensible BAFs to derive human health criteria for Washington, and to use BCFs only when BAFs were not available for a given pollutant. Other commenters asserted that BCFs are no less scientifically defensible than BAFs, and that EPA did not provide sufficient information regarding how it developed BAFs in 2015 for commenters to fully evaluate EPA's proposed approach.

EPA's 2000 Methodology recommends use of BAFs that account for uptake of a contaminant from all sources by fish and shellfish, rather than BCFs that only account for uptake from the water column. EPA's 2015 national recommended BAFs are based on peer-reviewed, publicly available data and were developed consistent with EPA's 2000 Methodology and its supporting documents. EPA provided the basis for its 2015 BAFs in individual pollutant-specific criteria documents. The final human health criteria for Washington are consistent with EPA's 2000 Methodology, which makes clear that BAFs are a more scientifically defensible representation of bioaccumulation than BCFs. For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.

D. Final Human Health Criteria for Washington

EPA finalizes 144 human health criteria for 74 different pollutants (72 organism-only criteria and 72 water-plus-organism criteria) to protect the applicable designated uses of Washington's waters (see Table 1). The water-plus-organism criteria in column C1 and the methylmercury criterion in column C2 of Table 1 are the applicable criteria for any waters that include the Domestic Water (domestic water supply) use defined in Washington's WQS (WAC 173-201A-600). The organism-only criteria in column C2 of Table 1 apply to waters that do not include the Domestic Water (domestic water supply) use and that Washington defines at WAC 173-201A-600 and 173-201A-610 as the following: Fresh waters—Harvesting (fish harvesting), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish harvesting, and crustacean and other shellfish—crabs, shrimp, scallops, etc.—harvesting), and Recreational Uses.

Table 1—Human Health Criteria for Washington A Chemical CAS No. B Cancer slope factor, CSF
  • (per mg/kg·d)
  • Relative source
  • contribution, RSC (-)
  • Reference dose, RfD
  • (mg/kg·d)
  • Bio-accumulation factor
  • (L/kg tissue)
  • Bio-concentration factor
  • (L/kg tissue)
  • C Water &
  • organisms
  • (μg/L)
  • Organisms
  • only
  • (μg/L)
  • (B1) (B2) (B3) (B4) (B5) (C1) (C2) 1. 1,1,1-4Trichloroethane 71556 0.50 2 10 20,000 50,000 2. 1,1,2,2-Tetrachloroethane 79345 0.2 - 8.4 0.1 0.3 3. 1,1,2-Trichloroethane 79005 0.057 - 8.9 0.35 0.90 4. 1,1-Dichloroethylene 75354 0.50 0.05 2.6 700 4,000 5. 1,2,4-Trichlorobenzene 120821 0.029 - 430 0.036 0.037 6. 1,2-Dichlorobenzene 95501 0.50 0.3 82 700 800 7. 1,2-Dichloroethane 107062 0.0033 - 1.9 8.9 73 8. 1,2-Dichloropropane 78875 - 9. 1,2-Diphenylhydrazine 122667 0.8 - 27 0.01 0.02 10. 1,2-Trans-Dichloroethylene 156605 0.50 0.02 4.7 200 1,000 11. 1,3-Dichlorobenzene 541731 0.50 0.002 190 2 2 12. 1,3-Dichloropropene 542756 0.122 - 3.0 0.22 1.2 13. 1,4-Dichlorobenzene 106467 0.50 0.07 84 200 200 14. 2,3,7,8-TCDD (Dioxin) ** 1746016 156,000 - 5,000 1.3E-08 1.4E-08 15. 2,4,6-Trichlorophenol 88062 - 16. 2,4-Dichlorophenol 120832 0.50 0.003 48 10 10 17. 2,4-Dimethylphenol 105679 - 18. 2,4-Dinitrophenol 51285 0.50 0.002 4.4 30 100 19. 2,4-Dinitrotoluene 121142 - 20. 2-Chloronaphthalene 91587 0.80 0.08 240 100 100 21. 2-Chlorophenol 95578 - 22. 2-Methyl-4,6-Dinitrophenol 534521 0.50 0.0003 10 3 7 23. 3,3′-Dichlorobenzidine 91941 - 24. 3-Methyl-4-Chlorophenol 59507 - 25. 4,4′-DDD 72548 0.24 - 240,000 7.9E-06 7.9E-06 26. 4,4′-DDE 72559 0.167 - 3,100,000 8.8E-07 8.8E-07 27. 4,4′-DDT 50293 0.34 - 1,100,000 1.2E-06 1.2E-06 28. Acenaphthene 83329 0.50 0.06 510 30 30 29. Acrolein 107028 - 30. Acrylonitrile 107131 - 31. Aldrin 309002 17 - 650,000 4.1E-08 4.1E-08 32. alpha-BHC 319846 6.3 - 1,500 4.8E-05 4.8E-05 33. alpha-Endosulfan 959988 0.50 0.006 200 6 7 34. Anthracene 120127 0.50 0.3 610 100 100 35. Antimony 7440360 0.50 0.0004 1 6 90 36. Arsenic ** 7440382 1.75 - 44 a 0.018 a 0.14 37. Asbestos 1332214 - 38. Benzene 71432 - 39. Benzidine 92875 - 40. Benzo(a) Anthracene 56553 0.73 - 3,900 0.00016 0.00016 41. Benzo(a) Pyrene 50328 7.3 - 3,900 1.6E-05 1.6E-05 42. Benzo(b) Fluoranthene 205992 0.73 - 3,900 0.00016 0.00016 43. Benzo(k) Fluoranthene 207089 0.073 - 3,900 0.0016 0.0016 44. beta-BHC 319857 1.8 - 180 0.0013 0.0014 45. beta-Endosulfan 33213659 - 46. Bis(2-Chloroethyl) Ether 111444 - 47. Bis(2-Chloro-1-Methylethyl) Ether * 108601 0.50 0.04 10 400 900 48. Bis(2-Ethylhexyl) Phthalate 117817 0.014 - 710 0.045 0.046 49. Bromoform 75252 0.0045 - 8.5 4.6 12 50. Butylbenzyl Phthalate 85687 0.0019 - 19,000 0.013 0.013 51. Carbon Tetrachloride 56235 - 52. Chlordane 57749 0.35 - 60,000 2.2E-05 2.2E-05 53. Chlorobenzene 108907 0.50 0.02 22 100 200 54. Chlorodibromomethane 124481 0.04 - 5.3 0.60 2.2 55. Chloroform 67663 0.50 0.01 3.8 100 600 56. Chrysene 218019 0.0073 - 3,900 0.016 0.016 57. Copper 7440508 - 58. Cyanide 57125 0.50 0.0006 1 9 100 59. Dibenzo(a,h) Anthracene 53703 7.3 - 3,900 1.6E-05 1.6E-05 60. Dichlorobromomethane 75274 0.034 - 4.8 0.73 2.8 61. Dieldrin 60571 16 - 410,000 7.0E-08 7.0E-08 62. Diethyl Phthalate 84662 0.50 0.8 920 200 200 63. Dimethyl Phthalate 131113 0.50 10 4,000 600 600 64. Di-n-Butyl Phthalate 84742 0.50 0.1 2,900 8 8 65. Endosulfan Sulfate 1031078 0.50 0.006 140 9 66. Endrin 72208 0.80 0.0003 46,000 0.002 0.002 67. Endrin Aldehyde 7421934 - 68. Ethylbenzene 100414 0.50 0.022 160 29 31 69. Fluoranthene 206440 0.50 0.04 1,500 6 6 70. Fluorene 86737 0.50 0.04 710 10 10 71. gamma-BHC; Lindane 58899 0.50 0.0047 2,500 0.43 0.43 72. Heptachlor 76448 4.1 - 330,000 3.4E-07 3.4E-07 73. Heptachlor Epoxide 1024573 5.5 - 35,000 2.4E-06 2.4E-06 74. Hexachlorobenzene 118741 1.02 - 90,000 5.0E-06 5.0E-06 75. Hexachlorobutadiene 87683 0.04 - 1,100 0.01 0.01 76. Hexachlorocyclopentadiene 77474 0.50 0.006 1,300 1 1 77. Hexachloroethane 67721 0.04 - 600 0.02 0.02 78. Indeno(1,2,3-cd) Pyrene 193395 0.73 - 3,900 0.00016 0.00016 79. Isophorone 78591 - 80. Methyl Bromide 74839 0.50 0.02 1.4 300 81. Methylene Chloride 75092 0.002 - 1.6 10 100 82. Methylmercury 22967926 2.7E-05 0.0001 b 0.03 (mg/kg) 83. Nickel 7440020 0.50 0.02 47 80 100 84. Nitrobenzene 98953 0.50 0.002 3.1 30 100 85. N-Nitrosodimethylamine 62759 - 86. N-Nitrosodi-n-Propylamine 621647 - 87. N-Nitrosodiphenylamine 86306 - 88. Pentachlorophenol (PCP) 87865 0.4 - 520 0.002 0.002 89. Phenol 108952 0.50 0.6 1.9 9,000 70,000 90. Polychlorinated Biphenyls (PCBs) 2 - 31,200 c 7E-06 c 7E-06 91. Pyrene 129000 0.50 0.03 860 8 8 92. Selenium 7782492 0.50 0.005 4.8 60 200 93. Tetrachloroethylene 127184 0.0021 - 76 2.4 2.9 94. Thallium ** 7440280 - 0.000068 116 1.7 6.3 95. Toluene 108883 0.50 0.0097 17 72 130 96. Toxaphene 8001352 - 97. Trichloroethylene 79016 0.05 - 13 0.3 0.7 98. Vinyl Chloride 75014 1.5 - 1.7 0.18 99. Zinc 7440666 0.50 0.3 47 1,000 1,000 a This criterion refers to the inorganic form of arsenic only. b This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish). See Water Quality Criterion for the Protection of Human Health: Methylmercury (EPA-823-R-01-001, January 3, 2001) for how this value is calculated using the criterion equation in EPA's 2000 Human Health Methodology rearranged to solve for a protective concentration in fish tissue rather than in water. c This criterion applies to total PCBs (e.g., the sum of all congener or isomer or homolog or Aroclor analyses). * Bis(2-Chloro-1-Methylethyl) Ether was previously listed as Bis(2-Chloroisopropyl) Ether. ** These criteria were promulgated for Washington in the National Toxics Rule at 40 CFR 131.36, and are moved into 40 CFR 131.45 to have one comprehensive human health criteria rule for Washington.
    E. Applicability of Criteria

    These new and revised human health criteria apply for CWA purposes in addition to any existing criteria already applicable to Washington's waters, including the state's narrative toxics criteria statement at WAC 173-201A-260(2)(a), and those human health criteria that Washington submitted on August 1, 2016, and EPA approved concurrent with this final rule.

    EPA replicates in 40 CFR 131.45 the same general rules of applicability for human health criteria as in 40 CFR 131.36(c), with one exception. For waters suitable for the establishment of low flow return frequencies (i.e., streams and rivers), this final rule provides that Washington must not use a low flow value below which numeric standards can be exceeded that is less stringent than the harmonic mean flow (a long-term mean flow value calculated by dividing the number of daily flows analyzed by the sum of the reciprocals of those daily flows), so that the criteria are implemented to be protective of the applicable designated use. Per the Revisions to the Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (65 FR 66444, November 3, 2000), EPA now recommends harmonic mean flow be used to implement human health criteria for both carcinogens and non-carcinogens.67 EPA received one comment on this provision, asking for clarification on whether this is consistent with Washington's current permitting approach of using the 30Q5 flow for non-carcinogens.68 In response, Washington's use of low flow statistics more stringent than the harmonic mean flow is consistent with EPA's final rule.

    67 See also USEPA. 2014. Water Quality Standards Handbook—Chapter 5: General Policies. U.S. Environmental Protection Agency. Office of Water. Washington, DC EPA-820-B-14-004. https://www.epa.gov/wqs-tech/water-quality-standards-handbook.

    68 The 30Q5 flow is the lowest 30-day average flow event expected to occur once every five years, on average (determined hydrologically).

    Under the CWA, Congress gave states primary responsibility for developing and adopting WQS for their navigable waters (CWA section 303(a)-(c)). Although EPA revises and establishes new human health criteria for Washington in this final rule, Washington continues to have the option to adopt and submit to EPA human health criteria for the pollutants in this final rule, consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131.

    In its September 14, 2015 proposed rule, EPA proposed that if Washington adopted and submitted human health criteria, and EPA approved those criteria before finalizing its federal rule, EPA would not proceed with finalizing those criteria and Washington's approved criteria would be solely applicable for CWA purposes. EPA did not receive any comments opposing this provision, thus EPA is proceeding with such an approach. In this final rule, EPA is withdrawing Washington from the NTR at 40 CFR 131.36, and, with the exception of criteria for which EPA has approved Washington's criteria, EPA is incorporating the Washington-specific criteria in this rule (as well as the existing NTR criteria for arsenic, dioxin and thallium) into 40 CFR 131.45 so there is a single comprehensive set of federally promulgated criteria for Washington. Therefore, the CWA-effective numeric human health criteria in Washington consist of the federally promulgated criteria at 40 CFR 131.45 and those criteria that EPA approved at WAC 173-201A-240 in Washington's August 1, 2016 submittal.

    Additionally, in its September 14, 2015 proposed rule, EPA proposed that if Washington adopted and submitted human health criteria after EPA finalized its rule, once EPA approved Washington's WQS, the pollutant-specific or site-specific EPA-approved criteria in Washington's WQS would become the solely effective criteria for CWA purposes and EPA's promulgated criteria for those pollutants or for that site would no longer apply. A few commenters supported this provision, where Washington's criteria for specific pollutants or sites become the only CWA-effective criteria upon EPA's approval, without any delay caused by EPA's withdrawal of the corresponding federal criteria. A few other commenters did not support this provision, and asked that EPA either delete the provision, or make clear that criteria adopted by the state would have to be at least as stringent as the federal criteria for EPA to approve and make the state criteria effective for CWA purposes. Upon further consideration of comments received on its proposed rule, EPA decided not to finalize this provision. Pursuant to 40 CFR 131.21(c), EPA's federally promulgated WQS are and will be applicable for purposes of the CWA until EPA withdraws those federally promulgated WQS. EPA would undertake such a rulemaking to withdraw the federal criteria if and when Washington adopts and EPA approves corresponding criteria that meet the requirements of section 303(c) of the CWA and EPA's implementing regulations at 40 CFR part 131.

    F. Alternative Regulatory Approaches and Implementation Mechanisms

    Washington has considerable discretion to implement these revised and new federal human health criteria through various water quality control programs including the NPDES program, which limits discharges to waters except in compliance with a NPDES permit. EPA's regulations at 40 CFR 131.14 authorize states and authorized tribes to adopt WQS variances to provide time to achieve the applicable WQS. 40 CFR part 131 defines WQS variances at 131.3(o) as time-limited designated uses and supporting criteria for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable conditions during the term of the WQS variances. WQS variances adopted in accordance with 40 CFR part 131 allow states and authorized tribes to address water quality challenges in a transparent and predictable way. Variances help states and authorized tribes focus on making incremental progress in improving water quality, rather than pursuing a downgrade of the underlying water quality goals through a designated use change, when the designated use is not attainable throughout the term of the variance due to one of the factors listed in 40 CFR 131.14. EPA's regulations at 40 CFR 122.47 provide the requirements when states and authorized tribes wish to include permit compliance schedules in their NPDES permits if dischargers need additional time to meet their water quality-based limits based on the applicable WQS. EPA's updated regulations at 40 CFR 131.15 require any state or authorized tribe wishing to use permit compliance schedules to also include provisions authorizing the use of permit compliance schedules after appropriate public involvement to ensure that a decision to allow permit compliance schedules derives from and complies with the applicable WQS. (80 FR 51022, August 21, 2015).

    40 CFR 131.10 specifies how states and authorized tribes establish, modify or remove designated uses for their waters. 40 CFR 131.11 specifies the requirements for establishing criteria to protect designated uses, including criteria modified to reflect site-specific conditions. In the context of this rulemaking, a site-specific criterion (SSC) is an alternative value to the federal human health criteria that could be applied on a watershed, area-wide, or waterbody-specific basis that meets the regulatory test of protecting the designated use, being scientifically defensible, and ensuring the protection and maintenance of downstream WQS. A SSC may be more or less stringent than the otherwise applicable federal criterion. A SSC may be appropriate when further scientific data and analyses can bring added precision to express the concentration of a particular pollutant that protects the human health-related designated use in a particular waterbody.

    A few commenters supported EPA's acknowledgement of the flexibilities that Washington has available when implementing the final criteria in this rule, while others commented that these tools allow Washington to delay or avoid implementing the criteria. EPA did not propose to change, nor does this final rule change, any of the flexibilities already afforded to Washington by EPA's regulations to modify or remove designated uses, adopt variances, issue compliance schedules, or establish site-specific criteria. These implementation tools are important for making incremental progress and allowing the time for adaptive management when designated uses and associated criteria are difficult to attain. Washington may continue to use any of these regulatory flexibilities when implementing the final federal human health criteria.

    a. Designating Uses

    EPA's final human health criteria apply to waters that Washington has designated for the following: Fresh waters—Harvesting (fish harvesting), Domestic Water (domestic water supply), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish harvesting, and crustacean and other shellfish—crabs, shrimp, scallops, etc.—harvesting), and Recreational Uses (see WAC 173-201A-600 and WAC 173-201A-610). If Washington removes the Domestic Water use but retains any of the other above designated uses for any particular waterbody affected by this final rule, and EPA finds that removal to be consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131, then the federal organism-only criteria will apply in place of the federal water-plus-organism criteria. If Washington removes designated uses such that none of the above uses apply to any particular waterbody affected by this final rule and adopts the highest attainable use, as defined by 40 CFR 131.3(m), consistent with 40 CFR 131.10(g), and EPA finds that removal to be consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131, then the federal human health criteria will no longer apply to that waterbody. Instead, any criteria associated with the newly designated highest attainable use would apply to that waterbody.

    b. Variances and Compliance Schedules

    EPA's final human health criteria apply to use designations that Washington has already established. Concurrent with this final rule, EPA approved revisions to Washington's variance and compliance schedule authorizing provisions. Washington may use its EPA-approved variance procedures (see WAC 173-201A-420) to establish time-limited designated uses and criteria to apply for the purposes specified in 40 CFR 131.14 as it pertains to federal criteria when adopting such variances. Washington has sufficient authority to use variances when implementing the human health criteria as long as such variances are adopted consistent with 40 CFR 131.14, and submitted to EPA for review under CWA section 303(c). Similarly, Washington may use its EPA-approved regulation authorizing the use of permit compliance schedules (see WAC 173-201A-510(4)), consistent with 40 CFR 131.15, to grant compliance schedules, as appropriate, for WQBELs based on the federal criteria. These state regulations are not affected by this final rule.

    c. Site-Specific Criteria

    As discussed in section III.E, if Washington adopts and EPA approves site-specific criteria that fully meet the requirements of section 303(c) of the CWA and EPA's implementing regulations at 40 CFR part 131, EPA will undertake a rulemaking to withdraw the corresponding federal criteria.

    IV. Economic Analysis

    Under the CWA, water quality criteria are set on the basis of the latest scientific knowledge. EPA is not required under the CWA nor obligated under Executive Orders 12866 and 13563 to conduct an economic analysis of the criteria. Costs cannot be considered in establishing water quality criteria as part of WQS. Nonetheless, EPA conducted a cost analysis for the criteria in this final rule for the purpose of transparency and presents this information reflecting the potential economic effects of the rule.

    These WQS may serve as a basis for development of NPDES permit limits. Washington has NPDES permitting authority, and retains considerable discretion in implementing standards. EPA evaluated the potential costs to NPDES dischargers associated with state implementation of EPA's final criteria. This analysis is documented in Final Economic Analysis for the Revision of Certain Federal Water Quality Criteria Applicable to Washington, which can be found in the record for this rulemaking.

    Any NPDES-permitted facility that discharges pollutants for which the revised human health criteria are more stringent than the applicable aquatic life criteria (or for which human health criteria are the only applicable criteria) could potentially incur compliance costs. The types of affected facilities could include industrial facilities and POTWs discharging wastewater to surface waters (i.e., point sources). EPA did not attribute compliance with water quality-based effluent limitations (WQBELs) reflective of existing federal human health criteria applicable to Washington (hereafter referred to as “baseline criteria”) to the final rule. Once in compliance with WQBELs reflective of baseline criteria, EPA expects that dischargers will continue to use the same types of controls to come into compliance with the revised criteria; EPA did not fully evaluate the potential for costs to nonpoint sources,69 such as agricultural runoff, that could be incurred under a TMDL for this analysis, but did analyze the administrative costs to the state of preparing TMDLs for potentially incrementally impaired waters. Actual costs of implementation of TMDLs is beyond the scope of this analysis.

    69 The CWA does not regulate nonpoint sources. However, EPA recognizes that the state may require controls for nonpoint sources as part of potential incremental TMDLs. It is difficult to model and evaluate the potential cost impacts of this final rule to nonpoint sources because they are intermittent, variable, and occur under hydrologic or climatic conditions associated with precipitation events. Also, data on instream and discharge levels of the pollutants of concern after dischargers have implemented controls to meet current WQS, total maximum daily loads (TMDLs) for impaired waters, or other water quality improvement plans, are not available. Therefore, trying to determine which sources would not achieve WQS based on the revised human health criteria after complying with existing regulations and policies may not be possible. In addition, legacy contamination (e.g., in sediment) may be a source of ongoing loading. Atmospheric deposition may also contribute loadings of the pollutants of concern (e.g., mercury). EPA did not estimate sediment remediation costs, or air pollution controls costs, for this analysis because EPA did not have data on the contribution of these sources, and because control costs for deposition may be covered by Clean Air Act rules.

    A. Identifying Affected Entities

    EPA identified 406 point source facilities that could ultimately be affected by this final rule. Of these potentially affected facilities, 73 are major dischargers and 333 are minor dischargers. EPA did not include general permit facilities in its analysis because data for such facilities are limited, and flows are usually negligible. Of the potentially affected facilities, EPA evaluated a sample of 17 major facilities. Minor facilities are unlikely to incur costs as a result of implementation of the rule, because minor facilities are typically those that do not discharge toxics in toxic amounts and discharge less than 1 million gallons per day (mgd). Although lower human health criteria could potentially change this categorization, EPA did not have effluent data on toxic pollutants to evaluate minor facilities for this analysis. Table 2 summarizes these potentially affected facilities by type and category.

    Table 2—Potentially Affected Facilities Category Minor Major All Municipal 184 48 232 Industrial 149 25 174 Total 333 73 406 B. Method for Estimating Costs

    EPA evaluated the two major municipal facilities with design flows greater than 100 mgd and a large industrial refinery, to attempt to capture the facilities with the potential for the largest costs. For the remaining major facilities, EPA evaluated a random sample of facilities to represent discharger type and category. For all sample facilities, EPA evaluated existing baseline permit conditions, reasonable potential to exceed human health criteria based on the final rule, and potential to exceed projected effluent limitations based on the last three years of effluent monitoring data (if available). In instances of exceedances of projected effluent limitations under the final criteria, EPA determined the likely compliance scenarios and costs. Only compliance actions and costs that would be needed above the baseline level of controls are attributable to the final rule.

    EPA assumed that dischargers will pursue the least cost means of compliance with WQBELs. Incremental compliance actions attributable to the final rule may include pollution prevention, end-of-pipe treatment, and alternative compliance mechanisms (e.g., variances). EPA annualized one-time costs (capital costs and variance costs) over 20 years using a 3 percent discount rate to obtain total annual costs per facility. For the random sample, EPA extrapolated the annualized costs based on the sampling weight for each sample facility. To obtain an estimate of total costs to point sources, EPA added the results for the certainty sample to the extrapolated random sample costs.

    C. Results

    Based on the results for 17 sample facilities across 8 industrial and municipal categories,70 EPA estimated a total annual compliance cost of approximately $126,000 to $150,000 for all major dischargers in the state (using a 3 percent discount rate). Only five facilities are estimated to incur pollution prevention program costs, while two facilities are expected to also incur costs of obtaining a variance. Most of the facilities would not bear any cost. The low end of the range reflects the assumption that the compliance actions (e.g., pollution prevention) will result in compliance with projected effluent limits, whereas the high scenario reflects projected effluent limits not being met, and thus includes the estimated administrative cost of also obtaining a variance. All compliance costs are for industrial facilities, and are attributable to the human health criterion for methylmercury.

    70 Seven industrial categories (mining, food and kindred products, paper and allied products, chemicals and allied products, petroleum refining and related industries, primary metal industries, and transportation and public utilities (except POTWs)) and municipal POTWs.

    If the revised criteria result in an incremental increase in impaired waters, resulting in the need for TMDL development, there could also be some costs to nonpoint sources of pollution. Using available ambient monitoring data, EPA compared pollutant concentrations to the baseline and final criteria, identifying waterbodies that may be incrementally impaired (i.e., impaired under the final criteria but not under the baseline). For the parameters and stations for which EPA had sufficient monitoring data available to evaluate, there were 50 impairments under the baseline criteria and 124 under the final criteria, for a total of 74 potential incremental impairments (or a 148 percent increase relative to the baseline; including for methylmercury, PCBs, and DDT). This increase indicates the potential for nonpoint sources to bear some compliance costs, although data are not available to estimate the magnitude of these costs. The control of nonpoint sources such as in the context of a TMDL could result in different requirements, and thus different costs, for point sources.

    If the net increase in potential impairments is any indication of the potential increase in the number of TMDLs, then the total administrative costs for TMDL development could be in the range of $2.7 million to $3.0 million based on national average single-cause single-waterbody TMDL development costs from U.S. EPA (2001; updated to 2014 dollars). However, these costs may be reduced if Ecology develops multi-cause or multi-waterbody TMDLs. If these costs are spread over 8 to 15 years, at a discount rate of 3 percent, the annualized costs of developing TMDLs are $229,000 to $422,000.

    Combining the potential facility compliance costs and TMDL administrative costs results in total annual costs of $355,000 to $572,000, at a 3 percent discount rate.

    V. Statutory and Executive Order Reviews A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

    It has been determined that this final rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). The final rule does not establish any requirements directly applicable to regulated entities or other sources of toxic pollutants. However, these WQS may serve as a basis for development of NPDES permit limits. Washington has NPDES permitting authority, and retains considerable discretion in implementing standards. In the spirit of Executive Order 12866, EPA evaluated the potential costs to NPDES dischargers associated with state implementation of EPA's final criteria. This analysis, Final Economic Analysis for the Revision of Certain Federal Water Quality Criteria Applicable to Washington, is summarized in section IV of the preamble and is available in the docket.

    B. Paperwork Reduction Act

    This action does not impose any direct new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Actions to implement these WQS could entail additional paperwork burden. Burden is defined at 5 CFR 1320.3(b). This action does not include any information collection, reporting, or record-keeping requirements.

    C. Regulatory Flexibility Act

    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. EPA has the authority to promulgate WQS in any case where the Administrator determines that a new or revised standard is necessary to meet the requirements of the CWA. EPA-promulgated standards are implemented through various water quality control programs including the NPDES program, which limits discharges to navigable waters except in compliance with an NPDES permit. The CWA requires that all NPDES permits include any limits on discharges that are necessary to meet applicable WQS. Thus, under the CWA, EPA's promulgation of WQS establishes standards that the state implements through the NPDES permit process. The state has discretion in developing discharge limits, as needed to meet the standards. As a result of this action, the State of Washington will need to ensure that permits it issues include any limitations on discharges necessary to comply with the standards established in the final rule. In doing so, the state will have a number of choices associated with permit writing. While Washington's implementation of the rule may ultimately result in new or revised permit conditions for some dischargers, including small entities, EPA's action, by itself, does not impose any of these requirements on small entities; that is, these requirements are not self-implementing.

    D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. As these water quality criteria are not self-implementing, EPA's action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of UMRA.

    This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that could significantly or uniquely affect small governments.

    E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This rule does not alter Washington's considerable discretion in implementing these WQS, nor will it preclude Washington from adopting WQS in the future that EPA concludes meet the requirements of the CWA, which will eliminate the need for federal standards. Thus, Executive Order 13132 does not apply to this action.

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

    This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. In the State of Washington, there are 29 federally recognized Indian tribes. To date, nine of these Indian tribes have been approved for TAS for CWA sections 303 and 401.71 Of these nine tribes, seven have EPA-approved WQS in their respective jurisdictions.72 This rule could affect federally recognized Indian tribes in Washington because the numeric criteria for Washington will apply to waters adjacent to (or upstream or downstream of) the tribal waters, where many of those tribes have treaty rights to take fish for their subsistence. Additionally, there are ten federally recognized Indian tribes in the Columbia River Basin located in the states of Oregon and Idaho that this rule could impact because their waters could affect or be affected by the water quality of Washington's downstream or upstream waters.

    71http://water.epa.gov/scitech/swguidance/standards/wqslibrary/approvtable.cfm.

    72http://yosemite.epa.gov/r10/water.nsf/34090d07b77d50bd88256b79006529e8/dd2a4df00fd7ae1a88256e0500680e86!OpenDocument. Note that this number does not include the Confederated Tribes of the Colville Reservation, which has federally promulgated WQS from 1989. EPA is currently reviewing the Colville Tribe's application for TAS.

    EPA consulted with federally recognized tribal officials under EPA's Policy on Consultation and Coordination with Indian Tribes early in the process of developing this rule to permit them to have meaningful and timely input into its development. In February and March 2015, EPA held tribes-only technical staff and leadership consultation sessions to hear their views and answer questions of all interested tribes on the proposed rule. Representatives from approximately 23 tribes and four tribal consortia participated in two leadership meetings held in March 2015. EPA and tribes have also met regularly since November 2012 to discuss Washington's human health criteria at both the tribal leadership level and technical staff level. The tribes have repeatedly asked EPA to promulgate federal human health criteria for Washington if the state did not do so in a timely and protective manner. At these meetings, the tribes consistently emphasized that the human health criteria should be derived using at least a minimum FCR value of 175 g/day, a cancer risk level of 10−6, and the latest scientific information from EPA's 304(a) recommended criteria. EPA considered the input received during consultation with tribes when developing this final rule (see section III for additional discussion of how EPA considered tribal input).

    In subsequent coordination with tribes, EPA received a letter on August 5, 2016, from the Northwest Indian Fisheries Commission disagreeing with EPA's potential adjustments to the RSC from the proposed rule issued on September 14, 2015 to the final rule as a result of public comments. The tribes expressed concern that less stringent human health criteria as a result of the RSC adjustment would result in lower protection of designated uses and limit the ability to exercise tribal treaty rights, especially in light of a FCR that underestimates tribal consumption. EPA considered this information carefully before finalizing this rule, but for the reasons stated above, decided to adjust the RSC to account for inclusion of some marine fish in the FCR. This results in protective criteria that account for other routes of exposure in addition to drinking water and fish and shellfish from inland and nearshore waters and is consistent with EPA's guidance.

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

    This rule is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the environmental health or safety risks addressed by this action do not present a disproportionate risk to children.

    H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use)

    This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

    I. National Technology Transfer and Advancement Act of 1995

    This final rulemaking does not involve technical standards.

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

    This action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. Conversely, this action identifies and ameliorates disproportionately high and adverse human health effects on minority populations and low-income populations in Washington. EPA developed the human health criteria included in this final rule specifically to protect Washington's designated uses, using the most current science, including local and regional information on fish consumption. Applying these criteria to waters in the State of Washington will afford a greater level of protection to both human health and the environment.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule report 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).

    List of Subjects in 40 CFR Part 131

    Environmental protection, Indians-lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control.

    Dated: November 15, 2016. Gina McCarthy, Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 131 as follows:

    PART 131—WATER QUALITY STANDARDS 1. The authority citation for part 131 continues to read as follows: Authority:

    33 U.S.C. 1251 et seq.

    Subpart D—Federally Promulgated Water Quality Standards
    § 131.36 [Amended]
    2. In § 131.36, remove paragraph (d)(14). 3. Add § 131.45 to read as follows:
    § 131.45 Revision of certain Federal water quality criteria applicable to Washington.

    (a) Scope. This section promulgates human health criteria for priority toxic pollutants in surface waters in Washington.

    (b) Criteria for priority toxic pollutants in Washington. The applicable human health criteria are shown in Table 1.

    Table 1—Human Health Criteria for Washington A Chemical CAS No. B Cancer slope factor, CSF
  • (per mg/kg·d)
  • Relative source
  • contribution, RSC (-)
  • Reference dose, RfD (mg/kg·d) Bio-accumulation factor
  • (L/kg tissue)
  • Bio-concentration factor
  • (L/kg tissue)
  • C Water &
  • organisms (µg/L)
  • Organisms only
  • (µg/L)
  • (B1) (B2) (B3) (B4) (B5) (C1) (C2) 1. 1,1,1-Trichloroethane 71556 0.50 2 10 20,000 50,000 2. 1,1,2,2-Tetrachloroethane 79345 0.2 - 8.4 0.1 0.3 3. 1,1,2-Trichloroethane 79005 0.057 - 8.9 0.35 0.90 4. 1,1-Dichloroethylene 75354 0.50 0.05 2.6 700 4,000 5. 1,2,4-Trichlorobenzene 120821 0.029 - 430 0.036 0.037 6. 1,2-Dichlorobenzene 95501 0.50 0.3 82 700 800 7. 1,2-Dichloroethane 107062 0.0033 - 1.9 8.9 73 8. 1,2-Dichloropropane 78875 - 9. 1,2-Diphenylhydrazine 122667 0.8 - 27 0.01 0.02 10. 1,2-Trans-Dichloroethylene 156605 0.50 0.02 4.7 200 1,000 11. 1,3-Dichlorobenzene 541731 0.50 0.002 190 2 2 12. 1,3-Dichloropropene 542756 0.122 - 3.0 0.22 1.2 13. 1,4-Dichlorobenzene 106467 0.50 0.07 84 200 200 14. 2,3,7,8-TCDD (Dioxin) ** 1746016 156,000 - 5,000 1.3E-08 1.4E-08 15. 2,4,6-Trichlorophenol 88062 - 16. 2,4-Dichlorophenol 120832 0.50 0.003 48 10 10 17. 2,4-Dimethylphenol 105679 - 18. 2,4-Dinitrophenol 51285 0.50 0.002 4.4 30 100 19. 2,4-Dinitrotoluene 121142 - 20. 2-Chloronaphthalene 91587 0.80 0.08 240 100 100 21. 2-Chlorophenol 95578 - 22. 2-Methyl-4,6-Dinitrophenol 534521 0.50 0.0003 10 3 7 23. 3,3′-Dichlorobenzidine 91941 - 24. 3-Methyl-4-Chlorophenol 59507 - 25. 4,4′-DDD 72548 0.24 - 240,000 7.9E-06 7.9E-06 26. 4,4′-DDE 72559 0.167 - 3,100,000 8.8E-07 8.8E-07 27. 4,4′-DDT 50293 0.34 - 1,100,000 1.2E-06 1.2E-06 28. Acenaphthene 83329 0.50 0.06 510 30 30 29. Acrolein 107028 - 30. Acrylonitrile 107131 - 31. Aldrin 309002 17 - 650,000 4.1E-08 4.1E-08 32. alpha-BHC 319846 6.3 - 1,500 4.8E-05 4.8E-05 33. alpha-Endosulfan 959988 0.50 0.006 200 6 7 34. Anthracene 120127 0.50 0.3 610 100 100 35. Antimony 7440360 0.50 0.0004 1 6 90 36. Arsenic ** 7440382 1.75 - 44 a 0.018 a 0.14 37. Asbestos 1332214 - 38. Benzene 71432 - 39. Benzidine 92875 - 40. Benzo(a) Anthracene 56553 0.73 - 3,900 0.00016 0.00016 41. Benzo(a) Pyrene 50328 7.3 - 3,900 1.6E-05 1.6E-05 42. Benzo(b) Fluoranthene 205992 0.73 - 3,900 0.00016 0.00016 43. Benzo(k) Fluoranthene 207089 0.073 - 3,900 0.0016 0.0016 44. beta-BHC 319857 1.8 - 180 0.0013 0.0014 45. beta-Endosulfan 33213659 - 46. Bis(2-Chloroethyl) Ether 111444 - 47. Bis(2-Chloro-1-Methylethyl) Ether * 108601 0.50 0.04 10 400 900 48. Bis(2-Ethylhexyl) Phthalate 117817 0.014 - 710 0.045 0.046 49. Bromoform 75252 0.0045 - 8.5 4.6 12 50. Butylbenzyl Phthalate 85687 0.0019 - 19,000 0.013 0.013 51. Carbon Tetrachloride 56235 - 52. Chlordane 57749 0.35 - 60,000 2.2E-05 2.2E-05 53. Chlorobenzene 108907 0.50 0.02 22 100 200 54. Chlorodibromomethane 124481 0.04 - 5.3 0.60 2.2 55. Chloroform 67663 0.50 0.01 3.8 100 600 56. Chrysene 218019 0.0073 - 3,900 0.016 0.016 57. Copper 7440508 - 58. Cyanide 57125 0.50 0.0006 1 9 100 59. Dibenzo(a,h) Anthracene 53703 7.3 - 3,900 1.6E-05 1.6E-05 60. Dichlorobromomethane 75274 0.034 - 4.8 0.73 2.8 61. Dieldrin 60571 16 - 410,000 7.0E-08 7.0E-08 62. Diethyl Phthalate 84662 0.50 0.8 920 200 200 63. Dimethyl Phthalate 131113 0.50 10 4,000 600 600 64. Di-n-Butyl Phthalate 84742 0.50 0.1 2,900 8 8 65. Endosulfan Sulfate 1031078 0.50 0.006 140 9 66. Endrin 72208 0.80 0.0003 46,000 0.002 0.002 67. Endrin Aldehyde 7421934 - 68. Ethylbenzene 100414 0.50 0.022 160 29 31 69. Fluoranthene 206440 0.50 0.04 1,500 6 6 70. Fluorene 86737 0.50 0.04 710 10 10 71. gamma-BHC; Lindane 58899 0.50 0.0047 2,500 0.43 0.43 72. Heptachlor 76448 4.1 - 330,000 3.4E-07 3.4E-07 73. Heptachlor Epoxide 1024573 5.5 - 35,000 2.4E-06 2.4E-06 74. Hexachlorobenzene 118741 1.02 - 90,000 5.0E-06 5.0E-06 75. Hexachlorobutadiene 87683 0.04 - 1,100 0.01 0.01 76. Hexachlorocyclopentadiene 77474 0.50 0.006 1,300 1 1 77. Hexachloroethane 67721 0.04 - 600 0.02 0.02 78. Indeno(1,2,3-cd) Pyrene 193395 0.73 - 3,900 0.00016 0.00016 79. Isophorone 78591 - 80. Methyl Bromide 74839 0.50 0.02 1.4 300 81. Methylene Chloride 75092 0.002 - 1.6 10 100 82. Methylmercury 22967926 2.7E-05 0.0001 b 0.03 (mg/kg) 83. Nickel 7440020 0.50 0.02 47 80 100 84. Nitrobenzene 98953 0.50 0.002 3.1 30 100 85. N-Nitrosodimethylamine 62759 - 86. N-Nitrosodi-n-Propylamine 621647 - 87. N-Nitrosodiphenylamine 86306 - 88. Pentachlorophenol (PCP) 87865 0.4 - 520 0.002 0.002 89. Phenol 108952 0.50 0.6 1.9 9,000 70,000 90. Polychlorinated Biphenyls (PCBs) 2 - 31,200 c 7E-06 c 7E-06 91. Pyrene 129000 0.50 0.03 860 8 8 92. Selenium 7782492 0.50 0.005 4.8 60 200 93. Tetrachloroethylene 127184 0.0021 - 76 2.4 2.9 94. Thallium ** 7440280 - 0.000068 116 1.7 6.3 95. Toluene 108883 0.50 0.0097 17 72 130 96. Toxaphene 8001352 - 97. Trichloroethylene 79016 0.05 - 13 0.3 0.7 98. Vinyl Chloride 75014 1.5 - 1.7 0.18 99. Zinc 7440666 0.50 0.3 47 1,000 1,000 a This criterion refers to the inorganic form of arsenic only. b This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish). See Water Quality Criterion for the Protection of Human Health: Methylmercury (EPA-823-R-01-001, January 3, 2001) for how this value is calculated using the criterion equation in EPA's 2000 Human Health Methodology rearranged to solve for a protective concentration in fish tissue rather than in water. c This criterion applies to total PCBs (e.g., the sum of all congener or isomer or homolog or Aroclor analyses). * Bis(2-Chloro-1-Methylethyl) Ether was previously listed as Bis(2-Chloroisopropyl) Ether. ** These criteria were promulgated for Washington in the National Toxics Rule at 40 CFR 131.36, and are moved into 40 CFR 131.45 to have one comprehensive human health criteria rule for Washington.

    (c) Applicability. (1) The criteria in paragraph (b) of this section apply to waters with Washington's designated uses cited in paragraph (d) of this section and apply concurrently with other applicable water quality criteria.

    (2) The criteria established in this section are subject to Washington's general rules of applicability in the same way and to the same extent as are other federally promulgated and state-adopted numeric criteria when applied to the same use classifications in paragraph (d) of this section.

    (i) For all waters with mixing zone regulations or implementation procedures, the criteria apply at the appropriate locations within or at the boundary of the mixing zones; otherwise the criteria apply throughout the waterbody including at the end of any discharge pipe, conveyance or other discharge point within the waterbody.

    (ii) The state must not use a low flow value below which numeric non-carcinogen and carcinogen human health criteria can be exceeded that is less stringent than the harmonic mean flow for waters suitable for the establishment of low flow return frequencies (i.e., streams and rivers). Harmonic mean flow is a long-term mean flow value calculated by dividing the number of daily flows analyzed by the sum of the reciprocals of those daily flows.

    (iii) If the state does not have such a low flow value for numeric criteria, then none will apply and the criteria in paragraph (b) of this section herein apply at all flows.

    (d) Applicable use designations. (1) All waters in Washington assigned to the following use classifications are subject to the criteria identified in paragraph (d)(2) of this section:

    (i) Fresh waters—

    (A) Miscellaneous uses: Harvesting (Fish harvesting);

    (B) Recreational uses;

    (C) Water supply uses: Domestic water (Domestic water supply);

    (ii) Marine waters—

    (A) Miscellaneous uses: Harvesting (Salmonid and other fish harvesting, and crustacean and other shellfish (crabs, shrimp, scallops, etc.) harvesting);

    (B) Recreational uses;

    (C) Shellfish harvesting: Shellfish harvest (Shellfish (clam, oyster, and mussel) harvesting)

    Note to paragraph (d)(1):

    The source of these uses is Washington Administrative Code 173-201A-600 for Fresh waters and 173-201A-610 for Marine waters.

    (2) For Washington waters that include the use classification of Domestic Water, the criteria in column C1 and the methylmercury criterion in column C2 of Table 1 in paragraph (b) of this section apply. For Washington waters that include any of the following use classifications but do not include the use classification of Domestic Water, the criteria in column C2 of Table 1 in paragraph (b) of this section apply: Harvesting (fresh and marine waters), Recreational Uses (fresh and marine waters), and Shellfish Harvesting.

    [FR Doc. 2016-28424 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R10-RCRA-2016-0629; FRL 9928-27-Region 10] Determination of Full Program Adequacy of Washington's Municipal Solid Waste Landfill Permitting Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    Under the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments, States must develop and implement permit programs for Municipal Solid Waste Landfills (MSWLFs) and seek an adequacy determination by the Environmental Protection Agency (EPA). This rule documents EPA's determination that Washington's MSWLF permit program is adequate to ensure compliance with Federal MSWLF requirements.

    DATES:

    This direct final rule will become effective February 27, 2017 without further notice, unless EPA receives adverse comments on or before January 27, 2017. If written adverse comments are received, the EPA will publish a timely withdrawal of the rule in the Federal Register.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-RCRA-2016-0629 by one of the following methods:

    www.regulations.gov: Follow the on-line instructions for submitting comments.

    Email: [email protected].

    Fax: (206) 553-6640, to the attention of Domenic Calabro.

    Mail: Send written comments to Domenic Calabro, U.S. EPA, Region 10, 1200 Sixth Avenue, Suite 900, Mailstop: AW-150, Seattle, WA 98101.

    Hand Delivery or Courier: Deliver your comments to: Domenic Calabro, Office of Air and Waste, U.S. EPA, Region 10, 1200 Sixth Avenue, Suite 900, Mailstop: AW-150, Seattle, WA 98101. Such deliveries are only accepted during the Office's normal hours of operation.

    Instructions: Identify your comments as relating to Docket ID No. EPA-R10-RCRA-2016-0629. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or claimed to be other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about the EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/dockets/.

    Docket: EPA has established a docket for this action under Docket ID No. EPA-R10-RCRA-2016-0629. All documents in the docket are listed on the www.regulations.gov Web site. Although it may be listed in the index, some information might not be publicly available, e.g., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the U.S. Region 10 Library, 1200 Sixth Avenue, Seattle, Washington by appointment only; please telephone (206) 553-1289 to make an appointment.

    FOR FURTHER INFORMATION CONTACT:

    U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, Mailcode: AW-150, Seattle, Washington, 98101 Attn: Mr. Domenic Calabro. Telephone: (206) 553-6640.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On October 9, 1991, the Environmental Protection Agency (EPA) promulgated the “Solid Waste Disposal Facility Criteria: Final Rule” (56 FR 50978). That rule established part 258 of Title 40 of the Code of Federal Regulations (CFR). The criteria set out in 40 CFR part 258 include location restrictions and standards for design, operation, groundwater monitoring, corrective action, financial assurance, and closure and post-closure care for MSWLFs. The 40 CFR part 258 criteria establish minimum Federal standards that take into account the practical capability of owners and operators of MSWLFs while ensuring that these facilities are designed and managed in a manner that is protective of human health and the environment. Section 4005(c)(1)(B) of subtitle D of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984, requires States to develop and implement permit programs to ensure that MSWLFs comply with the 40 CFR part 258 criteria. RCRA section 4005(c)(1)(C) requires EPA to determine whether the permit programs that States develop and implement for these facilities are adequate.

    To fulfill this requirement to determine whether State permit programs that implement the 40 CFR part 258 criteria are adequate, EPA promulgated the State Implementation Rule (SIR) (63 FR 57025, Oct. 23, 1998). The SIR, which established part 239 of Title 40 of the CFR, has the following four purposes: (1) Lay out the requirements that State programs must satisfy to be determined adequate; (2) confirm the process for EPA approval or partial approval of State MSWLF permit programs; (3) provide the procedures for withdrawal of such approvals; and (4) establish a flexible framework for modifications of approved programs.

    Only those owners and operators located in States with approved permit programs for MSWLFs can use the site-specific flexibility provided by 40 CFR part 258, to the extent the State permit program allows such flexibility. Every standard in the 40 CFR part 258 criteria is designed to be implemented by the owner or operator with or without oversight or participation by EPA or the State regulatory agency. States with approved programs may choose to require facilities to comply with the 40 CFR part 258 criteria exactly, or they may choose to allow owners and operators to use site-specific alternative approaches to meet the Federal criteria. The flexibility that an owner or operator may be allowed under an approved State program can provide a significant reduction in the burden associated with complying with the 40 CFR part 258 criteria. Regardless of the approval status of a State and the permit status of any facility, the 40 CFR part 258 criteria shall apply to all permitted and unpermitted MSWLFs. As EPA explained in the preamble to the revised Federal MSWLF criteria, EPA expects that any owner or operator complying with provisions in a State program approved by EPA should be considered to be in compliance with the revised Federal MSWLF criteria.

    To receive a determination of adequacy for a MSWLF permit program under the SIR, a State must have enforceable standards for new and existing MSWLFs. These State standards must be technically comparable to the 40 CFR part 258 criteria. In addition, the State must have the authority to issue a permit or other notice of prior approval and conditions to all new and existing MSWLFs in its jurisdiction. The State also must provide for public participation in permit issuance and enforcement, as required in RCRA section 7004(b). Finally, the State must demonstrate that it has sufficient compliance monitoring and enforcement authorities to take specific action against any owner or operator that fails to comply with an approved permit program. EPA expects States to meet all of these requirements for all elements of a permit program before it gives full approval to a State's program.

    On April 9, 1993, Washington submitted an application to obtain a partial program adequacy determination for the State's MSWLF permit program under Section 4005 of RCRA. EPA reviewed Washington's application and published a determination of partial program adequacy on March 31, 1994 (FR Vol. 59, No. 62) for those portions of the MSWLF permit program that were adequate to ensure compliance with the revised Federal MSWLF criteria. Washington made amendments to Chapter 173-351 of the Washington Administrative Code, which became effective in November 2012 and November 2015. On June 16, 2016, Washington submitted to EPA an amended application which incorporated the amendments, seeking a determination of full program adequacy for Washington's MSWLF permitting program. The amended application included a detailed description of changes made to Washington's MSWLF permitting program since the March 31, 1994 EPA determination of partial program adequacy. Specifically, Washington addressed the following portions of its MSWLF permit program that were not approved in the March 31, 1994 determination of partial program adequacy:

    (1) Revised the definitions of Existing MSWLF Unit and Lateral Expansion, per the federal regulations found in 40 CFR 258.2.

    (2) Eliminated equivalent and arid liner designs in the state rule, retained composite liner requirements, and incorporated an option for alternate liner design, consistent with federal regulations.

    (3) Revised the rules to require monitoring for total metals in groundwater.

    (4) Adopted revisions to Appendix 3 of WAC 173-351-990 to include two hazardous organic constituents: 2,3,7,8-Tetrachlorodibenzo- p-dioxin - [CAS 1746-01-6] and alpha, alpha-Dimethylphenethylamine [CAS 122-09-8]. This revision affects landfills that are required to perform assessment monitoring under the rule, and is necessary to be consistent with federal rules in 40 CFR part 258.

    (5) Adopted new post-closure care period criteria, which are based on potential risk to human and environmental receptors, per 40 CFR part 258.61(b).

    (6) Made revisions to allow for issuance of Research, Development, and Demonstration (RD&D) landfill permits, pursuant to the 2004 rulemaking by EPA (69 FR 13242, March 22, 2004).

    Washington Assistant Attorney General, Jonathan C. Thompson, certified in a letter dated June 10, 2016 that the regulations cited in the Washington Department of Ecology's Amended Application for Municipal Solid Waste Facilities Program Determination of Adequacy were enacted and full effective at the time of the application and will continue to be when the state's permit program is fully approved.

    II. Decision

    In addition to those portions of the State's MSWLF permit program that were approved on March 31, 1994, EPA has determined that the State's revised MSWLF permit program will ensure adequacy with the Federal criteria in 40 CFR part 258. In addition, Washington has demonstrated that its MSWLF permit program contains specific provisions for public participation, compliance monitoring, and enforcement. After reviewing Washington's amended application, EPA has concluded that Washington's MSWLF permit program meets all of the statutory and regulatory requirements established by RCRA. Accordingly, Washington is granted a determination of full program adequacy for its MSWLF permitting program.

    By finding that Washington's MSWLF permit program is adequate, EPA does not intend to affect the rights of Federally-recognized Indian Tribes in Washington, nor does it intend to limit the existing rights of the State of Washington. RCRA section 4005(a) provides that citizens may use the citizen suit provisions of RCRA section 7002 to enforce the 40 CFR part 258 criteria independent of any State enforcement program.

    III. Statutory and Executive Order Reviews

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

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

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

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new Information Collection Request (ICR) burden under the PRA. The purpose of this action is to approve amendments to Washington's MSWLF permitting program which result in it meeting all of the statutory and regulatory requirements established by RCRA. The OMB has previously approved the information collection activities contained in the ICR for 40 CFR part 239, Requirements for State Permit Program Determination of Adequacy and part 258, MSWLF Criteria. This action does not impose any additional reporting requirements.

    C. Regulatory Flexibility Act (RFA)

    EPA certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This rule will not create any additional burden for small entities. Small entities are not required to take any action as a consequence of this rule, and this action will not have a significant impact on a substantial number of small entities. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. The costs involved in this action are imposed only by voluntary participation in a federal program.

    E. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications as specified in Executive Order 13175. The EPA has concluded that this action will have no new tribal implications, nor would it present any additional burden on the tribes. It will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

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

    This action is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Washington has incorporated those requirements from the Federal MSWLF landfill criteria (40 CFR part 258) not found in Washington's existing program and EPA has determined that Washington's program includes terms and conditions that are at least as protective as the MSWLF landfill criteria for municipal solid waste landfills, to assure protection of human health and the environment.

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

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The purpose of this action is to approve amendments to Washington's MSWLF permitting program which result in it meeting all of the statutory and regulatory requirements established by RCRA. The EPA believes that the human health and environmental risk addressed by this action will not have a new disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report 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).

    List of Subjects 40 CFR Part 239

    Environmental protection, Administrative practice and procedure, Intergovernmental relations, Waste treatment and disposal.

    40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.

    Authority:

    This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a).

    Dated: October 20, 2016. Dennis J. McLerran, Regional Administrator, EPA Region 10.
    [FR Doc. 2016-26754 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [EPA-HQ-TRI-2015-0607; FRL-9953-28] RIN 2025-AA42 Addition of Hexabromocyclododecane (HBCD) Category; Community Right-to-Know Toxic Chemical Release Reporting AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    EPA is adding a hexabromocyclododecane (HBCD) category to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA). EPA is adding this chemical category to the EPCRA section 313 list because EPA has determined that HBCD meets the EPCRA section 313(d)(2)(B) and (C) toxicity criteria. Specifically, EPA has determined that HBCD can reasonably be anticipated to cause developmental and reproductive effects in humans and is highly toxic to aquatic and terrestrial organisms. In addition, based on the available bioaccumulation and persistence data, EPA has determined that HBCD should be classified as a persistent, bioaccumulative, and toxic (PBT) chemical and assigned a 100-pound reporting threshold.

    DATES:

    Effective Date: This final rule is effective November 30, 2016.

    Applicability date: This final rule will apply for the reporting year beginning January 1, 2017 (reports due July 1, 2018).

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-HQ-TRI-2015-0607. All documents in the docket are listed on http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov. Additional instructions on visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Daniel R. Bushman, Toxics Release Inventory Program Division (7410M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 566-0743; email: [email protected]

    For general information contact: The EPCRA Hotline; telephone numbers: Toll free at (800) 424-9346 (select menu option 3) or (703) 412-9810 in Washington DC and International; or toll free, TDD (800) 553-7672; or go to http://www.epa.gov/superfund/contacts/infocenter/.

    SUPPLEMENTARY INFORMATION:

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

    You may be potentially affected by this action if you manufacture, process, or otherwise use HBCD. 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:

    • Facilities included in the following NAICS manufacturing codes (corresponding to Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512220, 512230*, 519130*, 541712*, or 811490*.

    *Exceptions and/or limitations exist for these NAICS codes.

    • Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 1241)); or 212221, 212222, 212231, 212234, 212299 (corresponds to SIC code 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (Limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); or 562112 (Limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC code 7389, Business Services, NEC)); or 562211, 562212, 562213, 562219, 562920 (Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.) (corresponds to SIC code 4953, Refuse Systems).

    • Federal facilities.

    To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372, subpart B of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

    B. What action is the Agency taking?

    EPA is adding an HBCD category to the list of toxic chemicals subject to reporting under EPCRA section 313 and PPA section 6607. EPA is adding this chemical category to the EPCRA section 313 list because EPA has determined that HBCD meets the EPCRA section 313(d)(2)(B) and (C) toxicity criteria. EPA is also adding the HBCD category to the list of chemicals with special concern (see 40 CFR 372.28(a)(2)) and establishing a 100-pound reporting threshold.

    C. What is the Agency's authority for taking this action?

    This action is issued under EPCRA sections 313(d) and 328, 42 U.S.C. 11023 et seq., and PPA section 6607, 42 U.S.C. 13106. EPCRA is also referred to as Title III of the Superfund Amendments and Reauthorization Act of 1986.

    Section 313 of EPCRA, 42 U.S.C. 11023, requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of the PPA, 42 U.S.C. 13106. Congress established an initial list of toxic chemicals that comprised 308 individually listed chemicals and 20 chemical categories.

    EPCRA section 313(d) authorizes EPA to add or delete chemicals from the list and sets criteria for these actions. EPCRA section 313(d)(2) states that EPA may add a chemical to the list if any of the listing criteria in EPCRA section 313(d)(2) are met. Therefore, to add a chemical, EPA must demonstrate that at least one criterion is met, but need not determine whether any other criterion is met. Conversely, to remove a chemical from the list, EPCRA section 313(d)(3) dictates that EPA must demonstrate that none of the criteria in EPCRA section 313(d)(2) are met. The listing criteria in EPCRA section 313(d)(2)(A)-(C) are as follows:

    • The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.

    • The chemical is known to cause or can reasonably be anticipated to cause in humans: Cancer or teratogenic effects, or serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects.

    • The chemical is known to cause or can be reasonably anticipated to cause, because of its toxicity, its toxicity and persistence in the environment, or its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section.

    EPA often refers to the EPCRA section 313(d)(2)(A) criterion as the “acute human health effects criterion;” the EPCRA section 313(d)(2)(B) criterion as the “chronic human health effects criterion;” and the EPCRA section 313(d)(2)(C) criterion as the “environmental effects criterion.”

    EPA published in the Federal Register of November 30, 1994 (59 FR 61432) (FRL-4922-2), a statement clarifying its interpretation of the EPCRA section 313(d)(2) and (d)(3) criteria for modifying the EPCRA section 313 list of toxic chemicals.

    II. Summary of Proposed Rule A. What chemical did EPA propose to add to the EPCRA section 313 list of toxic chemicals?

    As discussed in the proposed rule June 2, 2016 (81 FR 35275) (FRL-9943-55), EPA proposed to add HBCD which is a cyclic aliphatic hydrocarbon consisting of a 12-membered carbon ring with 6 bromine atoms attached (molecular formula C12H18Br6). HBCD has 16 possible stereoisomers. HBCD may be designated as a non-specific mixture of all isomers (hexabromocyclododecane, Chemical Abstracts Service Registry Number (CASRN) 25637-99-4) or as a mixture of the three main diastereomers (1,2,5,6,9,10-hexabromocyclododecane, CASRN 3194-55-6). EPA proposed to create an HBCD category that would cover these two chemical names and CASRNs and would be defined as: Hexabromocyclododecane, includes those chemicals covered by the following CAS numbers:

    • 3194-55-6; 1,2,5,6,9,10-Hexabromocyclododecane • 25637-99-4; Hexabromocyclododecane. As a category, facilities that manufacture, process, or otherwise use HBCD covered under both of these names and CASRNs would file just one report. B. What reporting threshold did EPA propose to establish for the HBCD category?

    As EPA stated in the proposed rule June 2, 2016 (81 FR 35275) (FRL-9943-55), EPA proposed to add the HBCD category to the list of chemicals of special concern (see 40 CFR 372.28(a)(2)). There are several chemicals and chemical categories on the EPCRA section 313 chemical list that have been classified as chemicals of special concern because they are PBT chemicals. In a final rule published in the Federal Register of October 29, 1999 (64 FR 58666) (FRL-6389-11), EPA established the PBT classification criteria for chemicals on the EPCRA section 313 chemical list. The data presented in the proposed rule supported classifying the HBCD category as a PBT chemical category with a 100-pound reporting threshold.

    C. What was EPA's rationale for proposing to list the HBCD category?

    As discussed in the proposed rule June 2, 2016 (81 FR 35275) (FRL-9943-55), HBCD has been shown to cause developmental effects at doses as low as 146.3 milligrams per kilogram per day (mg/kg/day) lowest-observed-adverse-effect level (LOAEL) in male rats. Developmental effects have also been observed with a benchmark dose lower bound confidence limit (BMDL) of 0.056 mg/kg/day (benchmark dose (BMD) of 0.18 mg/kg/day) based on effects in female rats and a BMDL of 0.46 mg/kg/day (BMD of 1.45 mg/kg/day) based on effects in male rats. HBCD also causes reproductive toxicity at doses as low 138 mg/kg/day (LOAEL) in female rats. Based on the available developmental and reproductive toxicity, EPA stated that HBCD can be reasonably anticipated to cause moderately high to high chronic toxicity in humans. EPA stated that the evidence was sufficient for listing the HBCD category on the EPCRA section 313 toxic chemical list pursuant to EPCRA section 313(d)(2)(B) based on the available developmental and reproductive toxicity data.

    As also discussed in the proposed rule, HBCD has been shown to be highly toxic to both aquatic and terrestrial species with acute aquatic toxicity values as low as 0.009 milligrams per liter (mg/L) and chronic aquatic toxicity values as low as 0.0042 mg/L. HBCD is highly toxic to terrestrial species as well with observed toxic doses as low as 0.51 and 2.1 mg/kg/day. In addition to being highly toxic, HBCD is also bioaccumulative and persistent in the environment, which further supports a high concern for the toxicity to aquatic and terrestrial species. EPA stated that HBCD meets the EPCRA section 313(d)(2)(C) listing criteria on toxicity alone but also based on toxicity and bioaccumulation as well as toxicity and persistence in the environment. Therefore, EPA stated that the evidence is sufficient for listing the HBCD category on the EPCRA section 313 toxic chemical list pursuant to EPCRA section 313(d)(2)(C) based on the available ecological toxicity data as well as the bioaccumulation and persistence data.

    D. What was EPA's rationale for lowering the reporting threshold for HBCD?

    EPA stated in the proposed rule that the available bioaccumulation and persistence data for HBCD support a classification of HBCD as a PBT chemical June 2, 2016 (81 FR 35275) (FRL-9943-55). HBCD has been shown to be highly bioaccumulative in aquatic species and to also biomagnify in aquatic and terrestrial food chains. While there is limited data on the half-life of HBCD in soil and sediment, the best available data supports a determination that the half-life of HBCD in soil and sediment is at least 2 months. This determination is further supported by the data from environmental monitoring studies, which indicate that HBCD has significant persistence in the environment. The widespread presence of HBCD in numerous terrestrial and aquatic species also supports the conclusion that HBCD has significant persistence in the environment. Therefore, consistent with EPA's established policy for PBT chemicals (See 64 FR 58666, October 29, 1999) (FRL-6389-11) EPA proposed to establish a 100-pound reporting threshold for the HBCD category.

    III. What comments did EPA receive on the proposed rule?

    EPA received three comments on the proposed rule, two from individuals (Refs. 1 and 2) and one from a coalition of environmental and public interest groups and individuals (the coalition) (Ref. 3). All commenters supported the addition of the HBCD category to the EPCRA section 313 toxic chemical list. However, in their comments the coalition stated that HBCD is highly bioaccumulative and highly persistent and based on EPA's PBT classification criteria, a reporting threshold of 10 pounds should be established for the HBCD category. EPA provided the following background information in the proposed rule:

    “In a final rule published in the Federal Register of October 29, 1999 (64 FR 58666) (FRL-6389-11), EPA established the PBT classification criteria for chemicals on the EPCRA section 313 chemical list. For purposes of EPCRA section 313 reporting, EPA established persistence half-life criteria for PBT chemicals of 2 months in water/sediment and soil and 2 days in air, and established bioaccumulation criteria for PBT chemicals as a bioconcentration factor (BCF) or bioaccumulation factor (BAF) of 1,000 or higher. Chemicals meeting the PBT criteria were assigned 100-pound reporting thresholds. With regards to setting the EPCRA section 313 reporting thresholds, EPA set lower reporting thresholds (10 pounds) for those PBT chemicals with persistence half-lives of 6 months or more in water/sediment or soil and with BCF or BAF values of 5,000 or higher, these chemicals were considered highly PBT chemicals. The data presented in this proposed rule support classifying the HBCD category as a PBT chemical category with a 100-pound reporting threshold.” June 2, 2016 (81 FR 35277) (FRL-9943-55).

    EPA agrees with the commenter that HBCD is highly bioaccumulative but does not agree that HBCD meets the established criteria for highly persistent. The commenter stated that “While half-life data is limited, several studies estimate the half-life in sediment and soil to be greater than 120 days, while one study estimates a half-life of 190 days in abiotic sediment.” The study that the commenter cited as estimating a half-life of 190 days in abiotic sediment was Davis et al. 2005 (Ref. 4), which, as EPA discussed in the proposed rule, is a study that had a number of problems. For example, EPA noted that:

    “Additionally, the Davis et al. 2005 study (Ref. 96) was considered to be of uncertain reliability for quantifying HBCD persistence because of concerns regarding potential contamination of sediment samples, an interfering peak corresponding to γ-HBCD in the liquid chromatography/mass spectrometry (LC/MS) chromatograms, and poor extraction of HBCD leading to HBCD recoveries of 33-125% (Refs. 44 and 101).” June 2, 2016 (81 FR 35284).

    A better-conducted subsequent study by the same authors Davis et al. 2006 (Ref. 5) resulted in longer overall half-life values but no specific value equal to or above 180 days. As stated in the proposed rule, “While there is limited data on the half-life of HBCD in soil and sediment, the best available data supports a determination that the half-life of HBCD in soil and sediment is at least 2 months.” EPA does not believe that it would be appropriate to set a lower reporting threshold based on one half-life value of 190 days from a study that had a number of identified problems.

    IV. Summary of Final Rule

    EPA is finalizing the addition of an HBCD category to the EPCRA section 313 list of toxic chemicals. EPA has determined that HBCD meets the listing criteria under EPCRA section 313(d)(2)(B) and (C). The HBCD category will be defined as: Hexabromocyclododecane (This category includes only those chemicals covered by the CAS numbers listed here)

    • 3194-55-6; 1,2,5,6,9,10-Hexabromocyclododecane • 25637-99-4; Hexabromocyclododecane.

    EPA is also finalizing the addition of the HBCD category to the list of chemicals with special concern (see 40 CFR 372.28(a)(2)) and establishing a 100-pound reporting threshold. EPA has determined that the data support classifying the HBCD category as a PBT chemical category with a 100-pound reporting threshold.

    V. References

    The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not itself physically located in the docket. For assistance in locating these other documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT.

    1. Comment submitted by M. Clark. July 22, 2016. EPA-HQ-TRI-2015-0607-0217.

    2. Anonymous public comment. July 31, 2016. EPA-HQ-TRI-2015-0607-0218.

    3. Comment submitted by E. Gartner, Staff Attorney, Earthjustice et al. Re: Addition of Hexabromocyclododecane (HBCD) Category; Community Right-to-Know Toxic Chemical Release Reporting, August 1, 2016. EPA-HQ-TRI-2015-0607-0219.

    4. Davis, J.W., Gonsior, S.J., Marty, G.T., et al. 2005. The transformation of hexabromocyclododecane in aerobic and anaerobic soils and aquatic sediments. Water Res. 39:1075-1084.

    5. Davis, J.W., Gonsior, S.J., Markham, D.A., et al. 2006. Biodegradation and product identification of [14C]hexabromocyclododecane in wastewater sludge and freshwater aquatic sediment. Environ. Sci. Technol. 40:5395-5401. Including supporting information document.

    6. USEPA, OCSPP. 2016. Economic Analysis of the Final Rule to add HBCD to the List of TRI Reportable Chemicals. August 10, 2016.

    VI. What are the Statutory and Executive Orders reviews associated with this action?

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

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

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

    B. Paperwork Reduction Act (PRA)

    This action does not contain any new information collection requirements that require additional approval by OMB under the PRA, 44 U.S.C. 3501 et seq. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2025-0009 and 2050-0078. Currently, the facilities subject to the reporting requirements under EPCRA section 313 and PPA section 6607 may use either EPA Toxic Chemicals Release Inventory Form R (EPA Form 1B9350-1), or EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350-2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. Since the HBCD category would be classified a PBT category, it is designated as a chemical of special concern, for which Form A reporting is not allowed. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322, 42 U.S.C. 11042, 40 CFR part 350.

    OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2025-0009 (EPA Information Collection Request (ICR) No. 1363) and those related to trade secret designations under OMB Control 2050-0078 (EPA ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), an Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers relevant to EPA's regulations are listed in 40 CFR part 9 or 48 CFR chapter 15, and displayed on the information collection instruments (e.g., forms, instructions).

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. The small entities subject to the requirements of this action are small manufacturing facilities. The Agency has determined that of the 55 entities estimated to be impacted by this action, 42 are small businesses; no small governments or small organizations are expected to be affected by this action. All 42 small businesses affected by this action are estimated to incur annualized cost impacts of less than 1%. Thus, this action is not expected to have a significant adverse economic impact on a substantial number of small entities. A more detailed analysis of the impacts on small entities is located in EPA's economic analysis (Ref. 6).

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action is not subject to the requirements of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. Small governments are not subject to the EPCRA section 313 reporting requirements. EPA's economic analysis indicates that the total cost of this action is estimated to be $372,973 in the first year of reporting (Ref. 6).

    E. Executive Order 13132: Federalism

    This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. Thus, Executive Order 13175 does not apply to this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

    This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards and is therefore not subject to considerations under section 12(d) of NTTAA, 15 U.S.C. 272 note.

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

    EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action adds an additional chemical to the EPCRA section 313 reporting requirements. By adding a chemical to the list of toxic chemicals subject to reporting under section 313 of EPCRA, EPA would be providing communities across the United States (including minority populations and low income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of the action will have positive human health and environmental impacts on minority populations, low-income populations, and children.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report 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).

    List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, and Toxic chemicals.

    Dated: November 15, 2016. Gina McCarthy, Administrator.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 372—[AMENDED] 1. The authority citation for part 372 continues to read as follows: Authority:

    42 U.S.C. 11023 and 11048.

    2. In § 372.28, amend the table in paragraph (a)(2) as follows: a. Revise the second column header to read “Reporting threshold (in pounds unless otherwise noted)”, and b. Alphabetically add the category “Hexabromocyclododecane (This category includes only those chemicals covered by the CAS numbers listed here)” and entries “3194-55-6 (1,2,5,6,9,10-Hexabromocyclododecane)” and “25637-99-4 (Hexabromocyclododecane)”.

    The additions read as follows:

    § 372.28 Lower thresholds for chemicals of special concern.

    (a) * * *

    (2) * * *

    Category name Reporting threshold (in pounds unless otherwise noted) *         *         *         *         *         *         * Hexabromocyclododecane (This category includes only those chemicals covered by the CAS numbers listed here) 100 3194-55-6 1,2,5,6,9,10-Hexabromocyclododecane 25637-99-4 Hexabromocyclododecane *         *         *         *         *         *         *
    3. In § 372.65, paragraph (c) is amended by adding alphabetically an entry for “Hexabromocyclododecane (This category includes only those chemicals covered by the CAS numbers listed here)” to the table to read as follows:
    § 372.65 Chemicals and chemical categories to which this part applies.

    (c) * * *

    Category name Effective date *         *         *         *         *         *         * Hexabromocyclododecane (This category includes only those chemicals covered by the CAS numbers listed here) 1/1/17 3194-55-6 1,2,5,6,9,10-Hexabromocyclododecane 25637-99-4 Hexabromocyclododecane *         *         *         *         *         *         *
    [FR Doc. 2016-28102 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 435 [EPA-HQ-OW-2014-0598; FRL-9955-65-OW] RIN 2040-AF68 Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category—Implementation Date Extension AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Withdrawal of direct final rule.

    SUMMARY:

    Because the Environmental Protection Agency (EPA) received comments that could be construed as adverse, the EPA is withdrawing the direct final rule issued on September 30, 2016, to extend the implementation date for certain facilities subject to the EPA's final rule establishing pretreatment standards under the Clean Water Act (CWA) for discharges of pollutants into publicly-owned treatment works (POTWs) from unconventional oil and gas extraction.

    DATES:

    Effective November 28, 2016, the EPA withdraws the direct final rule published September 30, 2016 (81 FR 67191).

    FOR FURTHER INFORMATION CONTACT:

    For more information, see EPA's Web site: https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines. For technical information, contact Karen Milam, Engineering and Analysis Division (4303T), Office of Water, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone: 202-566-1915; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    On September 30, 2016, the EPA published a direct final rule that extended the implementation date for certain facilities to meet the requirements of the final pretreatment standards rule for unconventional oil and gas extraction. (81 FR 67191; September 30, 2016). In that direct final rule, the EPA stated that if we received adverse comments by October 31, 2016, the EPA would publish a timely withdrawal and address the comments in a final rule based on the proposed rule also published on September 30, 2016. (81 FR 67266; September 30, 2016).

    The direct final rule specifically indicated that “EPA will not consider any comment submitted on the direct final rule published today on any topic other than the appropriateness of an extension of the compliance date; any other comments will be considered to be outside the scope of this rulemaking.” (81 FR 67192; September 30, 2016). Commenters supported the compliance date being extended; the EPA did not receive any comments opposing the extension of the compliance date, and thus maintains that there were no adverse comments on the direct final rule. As indicated in the direct final rule, the EPA considers any comments on topics other than the extension of the compliance date—including comments submitted on the applicability of the underlying final pretreatment standards rule—to be outside the scope of this rulemaking. However, to the extent that any of the comments could be broadly interpreted as seeking an alternative compliance period, and thus arguably within scope, the EPA, in its discretion, is withdrawing the direct final rule and instead will issue a final action to address the compliance date, which will be based on the parallel proposed rule also published on September 30, 2016. (81 FR 67266; September 30, 2016). For purposes of this withdrawal, compliance date and implementation date are used interchangeably. As stated in the parallel proposal, we will not

    institute a second comment period on this proposed action.

    Withdrawal of this direct final rule removes the extension of the compliance date for the subset of facilities identified in the direct final rule. It does not withdraw, or otherwise impact, the underlying final pretreatment standards rule for unconventional oil and gas extraction, which continues to apply to all facilities that meet the definition of “unconventional” in that rule.

    List of Subjects in 40 CFR Part 435

    Environmental protection, Pretreatment, Waste treatment and disposal, Water pollution control, Unconventional oil and gas extraction.

    Dated: November 17, 2016. Michael H. Shapiro, Deputy Assistant Administrator.

    Accordingly, the direct final rule, published in the Federal Register on September 30, 2016, at 81 FR 67191, is withdrawn as of November 28, 2016.

    [FR Doc. 2016-28566 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 140819686-5999-02] RIN 0648-XF045 Snapper-Grouper Fishery of the South Atlantic; 2016 Recreational Accountability Measure and Closure for South Atlantic Greater Amberjack AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the recreational sector of greater amberjack in the exclusive economic zone (EEZ) of the South Atlantic for the current fishing year through this temporary rule. NMFS estimates that recreational landings have reached the recreational annual catch limit (ACL) for greater amberjack in the South Atlantic. Therefore, NMFS closes the recreational sector for greater amberjack in the South Atlantic exclusive economic zone (EEZ) through the remainder of the current fishing year (see DATES). This closure is necessary to protect the greater amberjack resource in the South Atlantic.

    DATES:

    This rule is effective from 12:01 a.m., local time, November 30, 2016, until 12:01 a.m. local time, on March 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes greater amberjack and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The recreational ACL for South Atlantic greater amberjack is 1,167,837 lb (529,722 kg), round weight, as specified at 50 CFR 622.193(k)(2)(i). The fishing year for South Atlantic greater amberjack is from March 1 through the end of February (50 CFR 622.7(d)). Under 50 CFR 622.193(k)(2)(i), when landings of the greater amberjack recreational sector reach, or are projected to reach, the recreational ACL, NMFS is required to close the recreational sector for greater amberjack by filing a notification to that effect with the Office of the Federal Register.

    NMFS has determined that the recreational ACL in the current fishing year that is from March 1, 2016, through the end of February 2017, has been reached. Therefore, this temporary rule implements an AM to close the recreational sector for greater amberjack in the South Atlantic for the remainder of the current fishing year. As a result, the recreational sector for greater amberjack in the South Atlantic EEZ will close effective 12:01 a.m., local time, November 30, 2016, until March 1, 2017, the start of the next fishing year.

    During the recreational closure, the bag and possession limits for greater amberjack in or from the South Atlantic EEZ are zero. The prohibition on possession in the South Atlantic onboard a vessel for which a valid Federal charter vessel/headboat permit for South Atlantic snapper-grouper has been issued applies regardless of whether greater amberjack were harvested in state or Federal waters.

    On October 4, 2016, NMFS closed the commercial sector of greater amberjack in the South Atlantic because the sector had reached the commercial quota (equivalent to the commercial ACL) (81 FR 67215, September 30, 2016). Because the commercial sector for South Atlantic greater amberjack has already closed for the remainder of the current fishing year, all harvest of South Atlantic greater amberjack will end on November 30, 2016. Both the commercial and recreational sectors will reopen on March 1, 2017, the start of the next fishing year.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic greater amberjack and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(k)(2)(i) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the recreational sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AM itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect greater amberjack. Prior notice and opportunity for public comment would require time and would potentially allow the recreational sector to further exceed the recreational ACL.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 22, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28546 Filed 11-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 140819686-5999-02] RIN 0648-XF042 Snapper-Grouper Fishery of the South Atlantic; 2016 Recreational Closure for Hogfish in the South Atlantic AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements an accountability measure (AM) for the hogfish recreational sector in the exclusive economic zone (EEZ) of the South Atlantic for the 2016 fishing year through this temporary rule. NMFS estimates recreational landings from the 2016 fishing year have reached the recreational annual catch limit (ACL) for hogfish. Therefore, NMFS closes the recreational sector for hogfish in the South Atlantic EEZ on November 30, 2016, through the remainder of the 2016 fishing year. This closure is necessary to protect the hogfish resource in the South Atlantic.

    DATES:

    This rule is effective 12:01 a.m., local time, November 30, 2016, until 12:01 a.m., local time, January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes hogfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The recreational ACL for hogfish is 85,355 lb (38,716 kg) round weight. In accordance with regulations at 50 CFR 622.193(u)(2)(i), NMFS is required to close the recreational sector for hogfish when the recreational ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register.

    NMFS has determined that the 2016 hogfish recreational ACL has been reached. Therefore, this temporary rule implements an AM to close the recreational sector for hogfish in the South Atlantic for the remainder of the 2016 fishing year. As a result, the recreational sector for hogfish in the South Atlantic EEZ will be closed effective 12:01 a.m., local time, November 30, 2016, until January 1, 2017, the start of the next fishing year.

    During the recreational closure, the bag and possession limits for hogfish in or from the South Atlantic EEZ are zero. The recreational sector for hogfish will reopen on January 1, 2017.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of hogfish in the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(u)(2)(i) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and public comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the recreational sector for hogfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the AMs established by the Comprehensive ACL Amendment (77 FR 15916, March 16, 2012) and located at 50 CFR 622.193(u)(2)(i) have already been subject to notice and public comment. All that remains is to notify the public of the recreational closure for hogfish for the remainder of the 2016 fishing year. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the hogfish resource, since time for notice and public comment will allow for continued recreational harvest and further exceedance of the recreational ACL.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 22, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28539 Filed 11-25-16; 8:45 am] BILLING CODE 3510-22-P
    81 228 Monday, November 28, 2016 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9307; Directorate Identifier 2016-NM-076-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 787-9 airplanes. This proposed AD was prompted by a determination that a certain bolt used on the outboard clevis of the ram air turbine (RAT) forward support fitting might not be long enough to allow for proper installation of the RAT. This proposed AD would require inspection of the forward support fitting of the RAT and replacement if cracking is found, and installation of a longer shoulder bolt. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 12, 2017.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9307.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9307; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6490; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9307; Directorate Identifier 2016-NM-076-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    During production, a determination was made that the shoulder bolt used on the outboard clevis of the RAT forward support fitting might not be long enough to allow for proper installation of the RAT; therefore, the clevis of the joint could be clamped together, resulting in reduced fatigue life and possible fracture of the clevis. The RAT system supplies an emergency source of hydraulic power to operate the minimum flight controls necessary for flight, and an emergency source of electrical power in the case of a dual non-restartable engine loss. Fracture of the clevis of the forward support fitting of the RAT could result in the RAT departing the airplane during a dual non-restartable engine loss, and consequent loss of control of the airplane. The RAT departing the airplane could also result in injury to maintenance crews during periodic RAT ground tests.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB290031-00, Issue 001, dated March 25, 2016. The service information describes procedures for inspecting for cracking of the clevis of the forward support fitting of the RAT, installing a longer shoulder bolt, and replacing the forward support fitting with a new fitting if any cracking is found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9307.

    Costs of Compliance

    We estimate that this proposed AD affects 2 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost
  • per product
  • Cost on
  • U.S. operators
  • Inspection/shoulder bolt replacement 3 work-hours × $85 per hour = $255 $152 $407 $814

    We estimate the following costs to do any necessary replacements of the forward support fitting that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:

    On-Condition Costs Action Labor cost Parts cost Cost
  • per product
  • Forward support fitting replacement 15 work-hours × $85 per hour = $1,275 $28,309 $29,584

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-9307; Directorate Identifier 2016-NM-076-AD. (a) Comments Due Date

    We must receive comments by January 12, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-9 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB290031-00, Issue 001, dated March 25, 2016.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by a determination that the shoulder bolt used on the outboard clevis of the ram air turbine (RAT) might not be long enough to allow for proper installation of the RAT; therefore, the clevis of the joint could be clamped together, resulting in reduced fatigue life and possible fracture of the clevis. We are issuing this AD to prevent fracture of the clevis of the forward support fitting of the RAT, which could result in the RAT departing the airplane during a dual non-restartable engine loss, and consequent loss of control of the airplane, or injury to maintenance crews during periodic RAT ground tests.

    (f) Compliance

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

    (g) Inspection, Replacement of Shoulder Bolt, and Replacement of RAT Forward Support Fitting if Necessary

    Within 12,000 flight hours or 24 months after the effective date of this AD, whichever occurs first: Do a high frequency eddy current inspection for cracking of the clevis of the forward support fitting of the RAT, and install a longer shoulder bolt, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB290031-00, Issue 001, dated March 25, 2016. If any cracking is found, before further flight, replace the RAT forward support fitting with a new fitting, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB290031-00, Issue 001, dated March 25, 2016.

    (h) Credit for Previous Actions

    This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (h)(1), (h)(2), (h)(3), or (h)(4) of this AD.

    (1) Boeing Message TBC-ANA-15-0272-01B, dated September 22, 2015.

    (2) Boeing Message TBC-ANZ-15-0016-06B, dated October 14, 2015.

    (3) Boeing Message TBC-CAL-15-0089-01B, dated September 22, 2015.

    (4) Boeing Message TBC-VAA-15-0089-01B dated September 22, 2015.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to: [email protected]

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

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

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (j) Related Information

    (1) For more information about this AD, contact Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6490; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 2, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-27308 Filed 11-25-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-125946-10] RIN 1545-BJ66 Dollar-Value LIFO Regulations: Inventory Price Index Computation (IPIC) Method Pools AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document contains proposed regulations that relate to the establishment of dollar-value last-in, first-out (LIFO) inventory pools by certain taxpayers that use the inventory price index computation (IPIC) pooling method. The proposed regulations provide rules regarding the proper pooling of manufactured or processed goods and wholesale or retail (resale) goods. The proposed regulations would affect taxpayers who use the IPIC pooling method and whose inventory for a trade or business consists of manufactured or processed goods and resale goods.

    DATES:

    Comments and requests for a public hearing must be received by February 27, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-125946-10), Room 5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-125946-10), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov/ (IRS REG-125946-10).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Natasha M. Mulleneaux, (202) 317-7007; concerning submission of comments and requests for a public hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Background

    Section 472 of the Internal Revenue Code permits a taxpayer to account for inventories using the LIFO method of accounting. The LIFO method of accounting for goods treats inventories on hand at the end of the year as consisting first of inventory on hand at the beginning of the year and then of inventories acquired during the year.

    Section 1.472-8(a) of the Income Tax Regulations (26 CFR part 1) provides that any taxpayer may elect to determine the cost of its LIFO inventories using the dollar-value method, provided such method is used consistently and clearly reflects income. The dollar-value method of valuing LIFO inventories is a method of determining cost by using “base-year” cost expressed in terms of total dollars rather than the quantity and price of specific goods as the unit of measurement. The “base-year” cost is the aggregate of the cost (determined as of the beginning of the tax year for which the LIFO method is first adopted) of all items in a pool.

    Pooling is central to the operation of the dollar-value LIFO method. Pooling requires costs related to different inventory products to be grouped into one or more inventory pools. To determine whether there is an increment or liquidation in a pool for a particular taxable year, the end of the year inventory of the pool expressed in terms of base-year cost is compared with the beginning of the year inventory of the pool expressed in terms of base-year cost. The regulations prescribe rules for determining whether the number and composition of the pools used by the taxpayer are appropriate. The rules vary depending upon whether the taxpayer is engaged in the activity of manufacturing or processing or the activity of wholesaling or retailing.

    The general pooling rules applicable to dollar-value LIFO taxpayers are in § 1.472-8(b) and (c). These paragraphs provide separate pooling principles for taxpayers engaged in the manufacturing or processing of goods (§ 1.472-8(b)), and for taxpayers engaged in the wholesaling or retailing of goods purchased from others (§ 1.472-8(c)).

    Section 1.472-8(b)(1) requires a manufacturer or processor to establish one pool for each natural business unit (natural business unit pooling method) unless the manufacturer or processor elects under § 1.472-8(b)(3) to establish multiple pools. Further, § 1.472-8(b)(2) provides that where a manufacturer or processor is also engaged in the wholesaling or retailing of goods purchased from others, the wholesaling or retailing operations with respect to such purchased goods shall not be considered a part of any manufacturing or processing unit. Additionally, § 1.472-8(b)(1) requires that where the manufacturer or processor is also engaged in the wholesaling or retailing of goods purchased from others, any pooling of the LIFO inventory of such purchased goods for wholesaling and retailing operations shall be determined in accordance with § 1.472-8(c).

    In Amity Leather Products Co. v. Commissioner, 82 T.C. 726 (1984), the Tax Court considered whether a taxpayer that used the natural business unit pooling method was subject to the separate pooling requirements by virtue of being both a manufacturer and a wholesaler or retailer of merchandise. The court concluded that requiring separate inventory accounting for the two functions was reasonable and held that, where the taxpayer manufactured goods and regularly purchased identical goods from a subsidiary for resale, it was required to maintain separate pools for manufactured and purchased inventory.

    A manufacturer or processor using the natural business unit pooling method may elect to use the multiple pooling method described in § 1.472-8(b)(3) for inventory items that are not within a natural business unit. Alternatively, a manufacturer or processor that does not use the natural business unit pooling method may elect to use the multiple pooling method. Under the multiple pooling method, generally each pool should consist of a group of inventory items that are substantially similar. Thus, raw materials that are substantially similar should be pooled together. Similarly, finished goods and goods-in-process should be placed in pools classified by major classes or types of goods.

    Section 1.472-8(c)(1) requires wholesalers, retailer, jobbers, and distributors to establish inventory pools by major lines, types, or classes of goods. Mirroring § 1.472-8(b)(1), § 1.472-8(c)(1) requires that where a wholesaler or retailer is also engaged in the manufacturing or processing of goods, the pooling of the LIFO inventory for the manufacturing or processing operations must be determined in accordance with § 1.472-8(b).

    In general, any taxpayer that elects to use the dollar-value LIFO method to value LIFO inventories may elect to use the IPIC method to compute the base-year cost and determine the LIFO value of a dollar-value pool for a trade or business. A taxpayer that elects to use the IPIC method of determining the value of a dollar-value LIFO pool for a trade or business may also elect to establish dollar-value pools, for those items accounted for using the IPIC method, using the IPIC pooling method provided in § 1.472-8(b)(4) and (c)(2). Section 1.472-8(b)(4) governs the application of the IPIC pooling method to manufacturers and processors that elect to use the IPIC method for a trade or business. Section 1.472-8(c)(2) governs the application of the IPIC pooling method to wholesalers, retailers, jobbers, and distributors that elect to use the IPIC method for a trade or business.

    For manufacturers and processors using the IPIC pooling method under § 1.472-8(b)(4), pools may be established for those items accounted for using the IPIC method based on the 2-digit commodity codes (that is, major commodity groups) in Table 9 (formerly Table 6) of the Producer Price Index Detailed Report (PPI Detailed Report), which is published monthly by the United States Bureau of Labor Statistics (BLS). A taxpayer establishing IPIC pools under § 1.472-8(b)(4) may combine IPIC pools that comprise less than 5 percent of the total inventory value of all dollar-value pools to form a single miscellaneous IPIC pool. If the resulting miscellaneous IPIC pool is less than 5 percent of the total inventory value of all dollar-value pools, the taxpayer may combine the miscellaneous IPIC pool with its largest IPIC pool.

    For retailers using the IPIC pooling method under § 1.472-8(c)(2), pools may be established for those purchased items accounted for using the IPIC method based on either the general expenditure categories (that is, major groups) in Table 3 of the Consumer Price Index Detailed Report (CPI Detailed Report), published monthly by BLS, or the 2-digit commodity codes (that is, major commodity groups) in Table 9 of the PPI Detailed Report. For wholesalers, jobbers, or distributors using the IPIC pooling method under § 1.472-8(c)(2), pools may be established for those items accounted for using the IPIC method based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. A taxpayer establishing IPIC pools under § 1.472-8(c)(2) may combine pools that comprise less than 5 percent of the total inventory value of all dollar-value pools to form a single miscellaneous IPIC pool. If the resulting miscellaneous IPIC pool is less than 5 percent of the total inventory value of all dollar-value pools, the taxpayer may combine the miscellaneous IPIC pool with its largest IPIC pool.

    Each of the 5-percent rules provided in § 1.472-8(b)(4) or (c)(2) is a method of accounting. Thus, a taxpayer may not change to, or cease using either 5-percent rule without obtaining the prior consent of the Commissioner. Whether a specific IPIC pool or the miscellaneous IPIC pool satisfies the applicable 5-percent rule must be determined in the year of adoption or year of change (whichever is applicable) and redetermined every third taxable year. Any change in pooling required or permitted under a 5-percent rule is also a change in method of accounting. A taxpayer must secure the consent of the Commissioner before combining or separating pools. The general procedures under section 446(e) and § 1.446-1(e) that a taxpayer must follow to obtain the consent of the Commissioner to change a method of accounting for federal income tax purposes are contained in Rev. Proc. 2015-13, 2015-5 I.R.B. 419 (or its successors), as modified by Rev. Proc. 2015-33, 2015-24 I.R.B. 1067. See § 601.601(d)(2)(ii)(b).

    The general pooling rules of § 1.472-8(b) and (c) provide that where a taxpayer is engaged in both a manufacturing or processing activity and a wholesaling or retailing activity, separate pooling rules apply to the separate activities, and goods purchased for resale may not be included in the same pool as manufactured or purchased goods. On the other hand, the IPIC pooling rules address circumstances where a trade or business consists entirely of a manufacturing, processing, retailing, or wholesaling activity. The Treasury Department and the IRS have become aware of confusion concerning how the IPIC pooling rules apply where a taxpayer is engaged in both a manufacturing or processing activity and a wholesaling or retailing activity. Accordingly, these proposed regulations address this issue.

    Explanation of Provisions Changes to IPIC Pooling Rules

    The proposed regulations amend the IPIC pooling rules to clarify that those rules are applied consistently with the general LIFO pooling rule that manufactured or processed goods and resale goods may not be included in the same dollar-value LIFO pool. This general rule is intended to limit cost transference, an inherent problem with pooling. Cost transference may occur, among other circumstances, when inventory items from separate economic activities (for example, manufacturing and resale activities) are placed in the same pool and may cause misallocation of cost or distortion of income.

    Accordingly, the proposed regulations clarify that an IPIC-method taxpayer who elects the IPIC pooling method described in § 1.472-8(b)(4) or (c)(2) and whose trade or business consists of both manufacturing or processing activity and resale activity may not commingle the manufactured or processed goods and the resale goods within the same IPIC pool.

    Specifically, the proposed regulations provide that a manufacturer or processor using the IPIC pooling method under § 1.472-8(b)(4) that is also engaged, within the same trade or business, in wholesaling or retailing goods purchased from others may elect to establish dollar-value pools for the manufactured or processed items accounted for using the IPIC method based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. If the manufacturer or processor makes this election, the manufacturer or processor must also establish pools for its resale goods in accordance with § 1.472-8(c)(2) (that is, based on the general expenditure categories in Table 3 of the CPI Detailed Report in the case of a retailer or the 2-digit commodity codes in Table 9 of the PPI Detailed Report in the case of a retailer, wholesaler, jobber, or distributor).

    If the manufacturer or processor chooses to use the 5-percent method of pooling, manufactured or processed IPIC pools (IPIC pools consisting of manufactured or processed goods) of less than 5 percent of the total current year cost of all dollar-value pools may be combined to form a single miscellaneous IPIC pool of manufactured or processed goods. The manufacturer or processor may also combine resale IPIC pools (IPIC pools consisting of resale goods) of less than 5 percent of the total value of inventory to form a single miscellaneous IPIC pool of resale goods. If the miscellaneous IPIC pool of manufactured or processed goods is less than 5 percent of the total value of inventory, the manufacturer or processor may combine the miscellaneous IPIC pool of manufactured or processed goods with its largest manufactured or processed IPIC pool. The miscellaneous IPIC pool of resale goods may not be combined with any other IPIC pool.

    The proposed regulations also provide that a wholesaler, retailer, jobber, or distributor using the IPIC pooling method under § 1.472-8(c)(2) that is also engaged, within the same trade or business, in manufacturing or processing activities may elect to establish dollar-value pools for the resale goods accounted for using the IPIC method in accordance with § 1.472-8(c)(2) (that is, based on the general expenditure categories in Table 3 of the CPI Detailed Report in the case of retailer or the 2-digit commodity codes in Table 9 of the PPI Detailed Report in the case of a wholesaler, retailer, jobber, or distributor). If the wholesaler, retailer, jobber, or distributor makes this election, it must also establish pools for its manufactured or processed goods based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report.

    If the wholesaler, retailer, jobber, or distributor chooses to use the 5-percent method of pooling, resale IPIC pools of less than 5 percent of the total value of inventory may be combined to form a single miscellaneous IPIC pool of resale goods. The wholesaler, retailer, jobber, or distributor may also combine the IPIC pools of manufactured or processed goods of less than 5 percent of the total value of inventory to form a single miscellaneous IPIC pool of manufactured or processed goods. If the resale miscellaneous IPIC pool is less than 5 percent of the total value of inventory, the wholesaler, retailer, jobber, or distributor may combine the resale miscellaneous IPIC pool with the largest resale IPIC pool. The miscellaneous IPIC pool of manufactured or processed goods may not be combined with any other IPIC pool.

    The Treasury Department and the IRS specifically request comments on the requirement that a taxpayer engaged in both manufacturing and resale activities within the same trade or business is required to use IPIC pooling for both activities.

    Changes To Conform With Current BLS Publications

    These proposed regulations modify § 1.472-8(b), (c), and (e)(3) to update references from Table 6 (Producer price indexes and percent changes for commodity groupings and individual items, not seasonally adjusted) to Table 9 (Producer price indexes and percent changes for commodity and service groupings and individual items, not seasonally adjusted) because of BLS changes in the PPI Detailed Report.

    These proposed regulations also modify § 1.472-8(e)(3)(ii) to remove the exception to the trade or business requirement for taxpayers using the Department Store Inventory Price Indexes because BLS discontinued publishing these indexes after December 2013.

    Effective/Applicability Date

    These regulations are proposed to apply for taxable years ending on or after the date the regulations are published as final regulations in the Federal Register.

    Special Analyses

    Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

    Comments and Request for a Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available at www.regulations.gov or upon request.

    A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    The principal author of these regulations is Natasha M. Mulleneaux of the Office of the Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Section 1.472-8 also issued under 26 U.S.C 472. * * *

    Par. 2. Section 1.472-8 is amended as follows: 1. Paragraph (b)(4) is revised. 2. Paragraph (c)(2) is revised. 3. Paragraph (e)(3)(ii) is revised. 4. Paragraph (e)(3)(iii)(B)(2) is amended by removing “Table 6 (Producer price indexes and percent changes for commodity groupings and individual items, not seasonally adjusted)” and adding in its place “Table 9 (formerly Table 6) (Producer price indexes and percent changes for commodity and service groupings and individual items, not seasonally adjusted)” in the first sentence; and removing “Table 6” and adding in its place “Table 9” in the second sentence. 5. Paragraphs (e)(3)(iii)(C)(1) and (2) are amended by removing “Table 6” and adding in its place “Table 9”. 6. Paragraph (e)(3)(v) is revised.

    The revisions read as follows:

    § 1.472-8 Dollar-value method of pricing LIFO inventories.

    (b) * * *

    (4) IPIC method pools—(i) In general. A manufacturer or processor that elects to use the inventory price index computation method described in paragraph (e)(3) of this section (IPIC method) for a trade or business may elect to establish dollar-value pools for those manufactured or processed items accounted for using the IPIC method as provided in this paragraph (b)(4)(i) based on the 2-digit commodity codes (that is, major commodity groups) in Table 9 (formerly Table 6) (Producer price indexes and percent changes for commodity and service groupings and individual items, not seasonally adjusted) of the “PPI Detailed Report” published monthly by the United States Bureau of Labor Statistics (available at http://www.bls.gov). A taxpayer electing to establish dollar-value pools under this paragraph (b)(4)(i) may combine IPIC pools of manufactured or processed goods that comprise less than 5 percent of the total current-year cost of all dollar-value pools for that trade or business to form a single miscellaneous manufactured or processed IPIC pool. A taxpayer electing to establish dollar-value pools under this paragraph (b)(4)(i) may combine a miscellaneous manufactured or processed IPIC pool that comprises less than 5 percent of the total current-year cost of all dollar-value pools with the largest manufactured or processed IPIC pool. Each of these 5-percent rules is a method of accounting. A taxpayer may not change to, or cease using, either 5-percent rule without obtaining the Commissioner's prior consent. Whether a specific manufactured or processed IPIC pool or the miscellaneous manufactured or processed IPIC pool satisfies the applicable 5-percent rule must be determined in the year of adoption or year of change, whichever is applicable, and redetermined every third taxable year. Any change in pooling required or permitted as a result of a 5-percent rule is a change in method of accounting. A taxpayer must secure the consent of the Commissioner pursuant to § 1.446-1(e) before combining or separating manufactured or processed IPIC pools and must combine or separate its manufactured or processed IPIC pools in accordance with paragraph (g)(2) of this section.

    (ii) Pooling of goods a manufacturer or processor purchased for resale. A manufacturer or processor electing to establish dollar-value pools under paragraph (b)(4)(i) of this section and that is also engaged, within the same trade or business, in wholesaling or retailing goods purchased from others (resale), must establish pools for its resale goods in accordance with paragraph (c)(2)(i) of this section. A manufacturer or processor that must establish dollar-value pools for resale goods under this paragraph (b)(4)(ii) may combine IPIC pools of resale goods that comprise less than 5 percent of the total current-year cost of all dollar-value pools for that trade or business to form a single miscellaneous resale IPIC pool. The single miscellaneous resale IPIC pool established pursuant to this paragraph (b)(4)(ii) may not be combined with any other IPIC pool. This 5-percent rule is a method of accounting. A taxpayer may not change to, or cease using, this 5-percent rule without obtaining the Commissioner's prior consent. Whether a specific resale IPIC pool satisfies the 5-percent rule must be determined in the year of adoption or year of change, whichever is applicable, and redetermined every third taxable year. Any change in pooling required or permitted as a result of this 5-percent rule is a change in method of accounting. A taxpayer must secure the consent of the Commissioner pursuant to § 1.446-1(e) before combining or separating resale IPIC pools and must combine or separate its resale IPIC pools in accordance with paragraph (g)(2) of this section.

    (iii) No commingling of manufactured goods and resale goods within a pool. Notwithstanding any other rule provided in paragraph (b) or (c) of this section, a manufacturer or processor electing to establish dollar-value pools under paragraph (b)(4)(i) of this section and that is also engaged in retailing or wholesaling may not include manufactured or processed goods in the same IPIC pool as goods purchased for resale. Further, in applying the 5-percent rules described in paragraphs (b)(4)(i) and (ii) of this section, a taxpayer may not combine an IPIC pool of manufactured or processed goods that comprises less than 5 percent of the total current-year cost of all dollar-value pools for that trade or business with a resale IPIC pool that comprises less than 5 percent of the total current-year cost of all dollar-value pools for the purpose of forming a single miscellaneous IPIC pool.

    (iv) Examples. The rules of paragraph (b)(4) of this section may be illustrated by the following examples:

    Example 1.

    (i) Taxpayer is engaged in the trade or business of manufacturing products A, B, and C. In order to cover temporary shortages, Taxpayer also purchases a small quantity of identical products for resale to customers. Taxpayer treats its manufacturing and resale activities as a single trade or business. Taxpayer uses the IPIC method described in paragraph (e)(3) of this section. Pursuant to its election, Taxpayer establishes dollar-value pools for the manufactured items under paragraph (b)(4)(i) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer also establishes dollar-value pools for the items purchased for resale under paragraph (b)(4)(ii) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer does not choose to use the 5-percent rules under paragraphs (b)(4)(i) and (ii) of this section.

    (ii) Even though Taxpayer has manufactured items and resale items that share the same 2-digit commodity codes, under paragraph (b)(4)(iii) of this section, Taxpayer's manufactured goods may not be included in the same IPIC pool as its goods purchased for resale.

    Example 2.

    (i) The facts are the same as in Example 1, except Taxpayer establishes three IPIC pools for its manufacturing activities and three IPIC pools for its resale activities. Further, Taxpayer chooses to use the 5-percent rules of paragraphs (b)(4)(i) and (ii) of this section. The percentage of total current-year cost of each IPIC pool to the current-year cost of all dollar-value pools for the trade or business is as follows:

    Percentage of total current-year cost of IPIC pool to current-year cost of all dollar-value pools
  • (%)
  • Manufacturing Pools: Pool A 90 Pool B 1 Pool C 1 Resale Pools: Pool D 6 Pool E 1 Pool F 1 100

    (ii) For purposes of applying the 5-percent rules to Taxpayer's manufacturing operations under paragraph (b)(4)(i) of this section, because Pools B and C each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools B and C may be combined to form a single miscellaneous pool of manufactured or processed goods (new Pool G).

    (iii) For purposes of applying the 5-percent rules to Taxpayer's resale operations under paragraph (b)(4)(ii) of this section, because Pools E and F each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools E and F may be combined to form a single miscellaneous pool of resale goods (new Pool H).

    (iv) Because Pool G comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (b)(4)(i) of this section, Pool G may be combined with Pool A, the largest IPIC pool of manufactured goods.

    (v) Although Pool H also comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (b)(4)(ii) of this section, Pool H may not be combined with Pool A, the largest pool of manufactured goods, or Pool D, the largest pool of resale goods.

    (c) * * *

    (2) IPIC method pools—(i) In general. A retailer that elects to use the inventory price index computation method described in paragraph (e)(3) of this section (IPIC method) for a trade or business may elect to establish dollar-value pools for those purchased items accounted for using the IPIC method as provided in this paragraph (c)(2)(i) based on either the general expenditure categories (that is, major groups) in Table 3 (Consumer Price Index for all Urban Consumers (CPI-U): U.S. city average, detailed expenditure categories) of the “CPI Detailed Report” or the 2-digit commodity codes (that is, major commodity groups) in Table 9 (formerly Table 6) (Producer price indexes and percent changes for commodity and service groupings and individual items, not seasonally adjusted) of the “PPI Detailed Report.” A wholesaler, jobber, or distributor that elects to use the IPIC method for a trade or business may elect to establish dollar-value pools for any group of resale goods accounted for using the IPIC method based on the 2-digit commodity codes (that is, major commodity groups) in Table 9 (Producer price indexes and percent changes for commodity and service groupings and individual items, not seasonally adjusted) of the “PPI Detailed Report.” The “CPI Detailed Report” and the “PPI Detailed Report” are published monthly by the United States Bureau of Labor Statistics (BLS) (available at http://www.bls.gov). A taxpayer electing to establish dollar-value pools under this paragraph (c)(2)(i) may combine IPIC pools of resale goods that comprise less than 5 percent of the total current-year cost of all dollar-value pools for that trade or business to form a single miscellaneous resale IPIC pool. A taxpayer electing to establish pools under this paragraph (c)(2)(i) may combine a miscellaneous resale IPIC pool that comprises less than 5 percent of the total current-year cost of all dollar-value pools with the largest resale IPIC pool. Each of these 5-percent rules is a method of accounting. A taxpayer may not change to, or cease using, either 5-percent rule without obtaining the Commissioner's prior consent. Whether a specific resale IPIC pool or the miscellaneous resale IPIC pool satisfies the applicable 5-percent rule must be determined in the year of adoption or year of change, whichever is applicable, and redetermined every third taxable year. Any change in pooling required or permitted under a 5-percent rule is a change in method of accounting. A taxpayer must secure the consent of the Commissioner pursuant to § 1.446-1(e) before combining or separating resale IPIC pools and must combine or separate its resale IPIC pools in accordance with paragraph (g)(2) of this section.

    (ii) Pooling of manufactured or processed goods of a wholesaler, retailer, jobber, or distributor. A wholesaler, retailer, jobber, or distributor electing to establish dollar-value pools under paragraph (c)(2)(i) of this section and that is also engaged, within the same trade or business, in manufacturing or processing, must establish pools for its manufactured or processed goods in accordance with paragraph (b)(4)(i) of this section. A wholesaler, retailer, jobber, or distributor that must establish dollar-value pools for manufactured or processed goods under this paragraph (c)(2)(ii) may combine IPIC pools of manufactured or processed goods that comprise less than 5 percent of the total current-year cost of all dollar-value pools for that trade or business to form a single miscellaneous manufactured or processed IPIC pool. The single miscellaneous manufactured or processed IPIC pool established pursuant to this paragraph (c)(2)(ii) may not be combined with any other IPIC pool. This 5-percent rule is a method of accounting. A taxpayer may not change to, or cease using, this 5-percent rule without obtaining the Commissioner's prior consent. Whether a specific manufactured or processed IPIC pool satisfies the 5-percent rule must be determined in the year of adoption or year of change, whichever is applicable, and redetermined every third taxable year. Any change in pooling required or permitted as a result of a 5-percent rule is a change in method of accounting. A taxpayer must secure the consent of the Commissioner pursuant to § 1.446-1(e) before combining or separating manufactured or processed IPIC pools and must combine or separate its manufactured or processed IPIC pools in accordance with paragraph (g)(2) of this section.

    (iii) No commingling of manufactured goods and purchased goods within a pool. Notwithstanding any other rule provided in paragraph (b) or (c) of this section, a wholesaler, retailer, jobber, or distributor electing to establish dollar-value pools under paragraph (c)(2)(i) of this section and that is also engaged in manufacturing or processing may not include manufactured or processed goods in the same IPIC pool as goods purchased for resale. Further, in applying the 5-percent rules described in paragraphs (c)(2)(i) and (ii) of this section, a taxpayer may not combine an IPIC pool of manufactured or processed goods that comprises less than 5 percent of the total current-year cost of all dollar-value pools with a resale IPIC pool that comprises less than 5 percent of the total current-year cost of all dollar-value pools for purposes of forming a single miscellaneous IPIC pool.

    (iv) Examples. The rules of paragraph (c)(2) of this section may be illustrated by the following examples:

    Example 1.

    (i) Taxpayer is engaged in the trade or business of wholesaling products A, B, and C. Taxpayer also manufactures a small quantity of identical products for sale to customers. Taxpayer treats its wholesaling and manufacturing activities as a single trade or business. Taxpayer uses the IPIC method described in paragraph (e)(3) of this section. Pursuant to its election, Taxpayer establishes dollar-value pools for the wholesale items purchased for resale under paragraph (c)(2)(i) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer also establishes dollar-value pools for the manufactured items under paragraph (c)(2)(ii) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer does not choose to use the 5-percent rules under paragraphs (c)(2)(i) and (ii) of this section.

    (ii) Even though Taxpayer has resale and manufactured items that share the same 2-digit commodity codes, under paragraph (c)(2)(iii) of this section, Taxpayer's resale goods may not be included in the same IPIC pool as its manufactured goods.

    Example 2.(i) The facts are the same as in Example 1, except Taxpayer establishes three IPIC pools for its wholesale activities and three IPIC pools for its manufacturing activities. Further, Taxpayer chooses to use the 5-percent rules of paragraphs (c)(2)(i) and (ii) of this section. The percentage of total current-year cost of each IPIC pool to the current-year cost of all dollar-value pools for the trade or business is as follows:

    Percentage of total current-year cost of IPIC pool to current-year cost of all dollar-value pools
  • (%)
  • Wholesaling Pools: Pool J 90 Pool K 1 Pool L 1 Manufacturing Pools: Pool M 6 Pool N 1 Pool O 1 100

    (ii) For purposes of applying the 5-percent rules to Taxpayer's wholesaling operations under paragraph (c)(2)(i) of this section, because Pools K and Pool L each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools K and L may be combined to form a single miscellaneous pool of wholesale goods (new Pool P).

    (iii) For purposes of applying the 5-percent rules to Taxpayer's manufacturing operations under paragraph (c)(2)(ii) of this section, because Pools N and O each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools N and O may be combined to form a single miscellaneous pool of manufactured goods (new Pool Q).

    (iv) Because Pool P comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (c)(2)(i) of this section, Pool P may be combined with Pool J, the largest IPIC pool of resale goods.

    (v) Although Pool Q also comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (c)(2)(ii) of this section, Pool Q may not be combined with Pool J, the largest pool of resale goods, or Pool M, the largest pool of manufactured goods.

    (e) * * *

    (3) * * *

    (ii) Eligibility. Any taxpayer electing to use the dollar-value LIFO method may elect to use the IPIC method. Except as provided in other published guidance, a taxpayer that elects to use the IPIC method for a specific trade or business must use that method to account for all items of dollar-value LIFO inventory.

    (v) Effective/applicability date. The rules of this paragraph (e)(3) and paragraphs (b)(4) and (c)(2) of this section are applicable for taxable years ending on or after the date the Treasury decision adopting these rules as final regulations is published in the Federal Register.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-28375 Filed 11-25-16; 8:45 am] BILLING CODE 4830-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0454; FRL-9955-51-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; New Regulations for Architectural and Industrial Maintenance Coatings AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. This revision pertains to a provision establishing new volatile organic compound (VOC) content limits and standards for architectural and industrial maintenance (AIM) coatings available for sale and use in Maryland. This action is being taken under the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before December 28, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0454 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Irene Shandruk, (215) 814-2166, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    In 2001, the Ozone Transport Commission (OTC), in collaboration with the Ozone Transport Region (OTR) states, developed several emission reduction measures, including a VOC model rule for AIM coatings (known as the Phase I AIM model rule), which addressed VOC reductions in the OTR. In 2004, consistent with the OTC Phase I AIM model rule, Maryland adopted COMAR 26.11.33—Architectural Coatings, which established VOC content limits, recordkeeping and labeling requirements, and standard practices for use and application of coatings used in architectural and industrial maintenance.

    The Phase I AIM model rule was replaced with an amended OTC model rule in 2011 (known as the Phase II AIM model rule). The Phase II AIM model rule was developed for states that needed additional VOC emission reductions in order to meet the ozone national ambient air quality standards (NAAQS). Consistent with the Phase II AIM model rule, Maryland developed and adopted COMAR 26.11.39—Architectural and Industrial Maintenance Coatings, which is an updated version of COMAR 26.11.33.

    II. Summary of SIP Revision

    On June 27, 2016, the Maryland Department of the Environment (MDE) submitted to EPA a SIP revision containing new AIM regulations .01 through .08 under COMAR 26.11.39—Architectural and Industrial Maintenance Coatings. The new regulations apply to any person who manufactures, blends, thins, supplies, sells, offers for sale, repackages for sale, or applies architectural and industrial maintenance coatings in Maryland. Maryland's new AIM regulations establish more stringent VOC content limits (Table 1) and standards for AIM coating categories than in COMAR 26.11.33, as well as establish container labeling requirements, reporting requirements, and compliance procedures. The requirements of COMAR 26.11.39 will supersede those of COMAR 26.11.33. A more detailed explanation and analysis of COMAR 26.11.39 can be found in the Technical Support Document (TSD) for this rulemaking under Docket ID No. EPA-R03-OAR-2016-0454.1

    1 The TSD contains a comparison of VOC content limits in COMAR 26.11.39 and COMAR 26.11.33, demonstrating additional VOC emission reduction potential from COMAR 26.11.39 for this source category. The TSD also describes some AIM categories that were consolidated or added in the new COMAR 26.11.39 compared to COMAR 26.11.33, which EPA had previously approved for the Maryland SIP. However, none of these adjustments removed any VOC content limits from the Maryland regulation, which EPA had approved previously into the Maryland SIP.

    Table 1—VOC Content Limits Under COMAR 26.11.39 for Various AIM Coating Categories Architectural and industrial maintenance coatings category Maryland's new VOC content limits (grams/liter) under COMAR 26.11.39 Flat coatings 50 Non-flat coatings 100 Non-flat—high gloss coatings 150 Specialty Coatings: Aluminum roof coatings 450 Basement specialty coatings 400 Bituminous roof coatings 270 Bituminous roof primers 350 Bond breakers 350 Calcimine recoater 475 Concrete curing compounds 350 Concrete/masonry sealers 100 Concrete surface retarders 780 Conjugated oil varnish 450 Conversion varnish 725 Driveway sealers 50 Dry fog coatings 150 Faux finishing coatings 350 Fire-resistive coatings 350 Floor coatings 100 Form-release coatings 250 Graphic arts coatings (Sign paints) 500 High-temperature coatings 420 Impacted immersion coatings 780 Industrial maintenance coatings 250 Low-solids coatings 120 Magnesite cement coatings 450 Mastic texture coatings 100 Metallic pigmented coatings 500 Multi-color coatings 250 Nuclear coatings 450 Pre-treatment wash primers 420 Primers, sealers, and undercoaters 100 Reactive penetrating sealers 350 Reactive penetrating carbonate stone sealers 500 Recycled coatings 250 Roof coatings 250 Rust preventative coatings 250 Shellacs: Clear 730 Opaque 550 Specialty primers, sealers, and undercoaters 100 Stains 250 Stone consolidant 450 Swimming pool coatings 340 Thermoplastic rubber coatings and mastic 550 Traffic marking coatings 100 Tub and tile refinish coatings 420 Waterproofing membranes 250 Wood coatings 275 Wood preservatives 350 Zinc-rich primers 340 III. Proposed Action

    EPA's review of this material indicates that Maryland's new regulations for AIM coatings under COMAR 26.11.39 are based on the OTC's Phase II AIM model rule and establish more stringent VOC content limits and requirements for certain AIM coating categories compared to COMAR 26.11.33. Therefore, these new regulations should lead to additional VOC reductions from this category. Additionally, Maryland's new AIM coating regulations are more stringent than the federal standards found at 40 CFR 59, subpart D—National Volatile Organic Compound Emission Standards for Architectural Coatings, which in 1998 established nationwide VOC content limits and other requirements for manufacturers of architectural coatings. EPA expects more stringent VOC content limits will reduce emissions of VOCs, a precursor to ozone formation. Reduced VOC emissions and reduced ozone formation will assist Maryland with attaining and maintaining the ozone NAAQS. EPA proposes to add COMAR 26.11.39 to the Maryland SIP as a SIP strengthening measure. Pursuant to section 110 of the CAA, EPA is proposing to approve Maryland's new AIM coating provision, COMAR 26.11.39, which was submitted on June 27, 2016, as a revision to the Maryland SIP. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

    IV. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Maryland's new regulations for AIM coatings under COMAR 26.11.39. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    In addition, this proposed rule pertaining to Maryland's new regulations for AIM coatings under COMAR 26.11.39, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 10, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-28436 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R03-OAR-2016-0053; FRL-9955-69-Region 3] Approval and Promulgation of Air Quality Plans; State of Maryland; Control of Emissions From Existing Hospital/Medical/Infectious Waste Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a section 111(d)/129 plan submitted by the State of Maryland for existing hospital/medical/infectious waste incineration (HMIWI) units. The section 111(d)/129 plan contains revisions to a previously-approved state plan for existing HMIWI units and was submitted as a result of the October 6, 2009 promulgation of federal new source performance standards (NSPS) and emission guidelines for HMIWI units, which were subsequently amended on April 4, 2011. This action is being taken under sections 111(d) and 129 of the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before December 28, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0053 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mike Gordon, (215) 814-2039, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    Section 129 of the CAA requires EPA to establish performance standards and emission guidelines for various types of new and existing solid waste incineration units. Section 129(b)(2) requires states to submit to EPA for approval section 111(d)/129 plans that implement and enforce the promulgated emission guidelines. Section 129(b)(3) requires EPA to promulgate a federal plan (FP) within two years from the date on which the emission guidelines, or revision to the emission guidelines, is promulgated. The FP is applicable to affected facilities when the state has failed to receive EPA approval of the section 111(d)/129 plan. The FP remains in effect until the state submits and receives EPA approval of its section 111(d)/129 plan. State submittals under CAA sections 111(d) and 129 must be consistent with the relevant emission guidelines, in this instance 40 CFR part 60, subpart Ce, and the requirements of 40 CFR part 60, subpart B and part 62, subpart A. Section 129 of the CAA regulates air pollutants that include organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury), hydrogen chloride, sulfur dioxide, nitrogen oxides, and particulate matter (which includes opacity).

    On January 10, 2013, the Maryland Department of the Environment (MDE) submitted revisions to its section 111(d)/129 plan for HMIWI units that was previously approved by EPA on September 5, 2000 (65 FR 53608). The revisions address EPA's October 6, 2009 final rule (74 FR 51367) and April 4, 2011 amendments (76 FR 18407) for Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators, 40 CFR part 60, subparts Ec and Ce. Included with Maryland's plan are amendments to Code of Maryland Regulations (COMAR) 26.11.08, entitled “Control of Incinerators,” specifically regulations .01, .02, and .08-1 and adoption/amendments to new regulation .08-2. EPA's proposed approval of Maryland's HMIWI revisions amends state HMIWI regulations .01, .02, .08-1, and .08-2 of COMAR 26.11.08 to comport with the corresponding federal regulations. Unrevised portions of the previous state plan approved on September 5, 2000 remain in place.

    II. Summary of Maryland's Section 111(d)/129 Plan for Existing HMIWI Units

    EPA has reviewed the Maryland section 111(d)/129 plan submittal in the context of the requirements of 40 CFR part 60, subparts B, Ec and Ce, and part 62, subpart A. EPA has determined that the submitted section 111(d)/129 plan meets the above-cited requirements. Thus, EPA proposes to approve the above the submitted plan. EPA's proposed approval in this action is limited to the regulations addressing HMIWI units as identified by Maryland in its section 111(d)/129 plan submittal under COMAR 26.11.08, specifically, regulations .01, .02, .08-1, and .08-2.1 A detailed explanation of the rationale behind this proposed approval is available in the July 22, 2016 technical support document (TSD). The TSD is available in the docket for this rulemaking and online at www.regulations.gov.

    1 Definitions relating to the Maryland HMIWI plan are included in COMAR 26.11.08.01. While this section contains definitions for Maryland's general incinerator regulations, EPA is only taking action on requirements related to HMIWI units. Definitions related to incinerators other than HMIWI units are outside of the scope of Maryland's plan and EPA's approval is strictly limited to Part 60 and 62 provisions relevant to existing HMIWI units.

    III. Proposed Action

    EPA is proposing to approve the Maryland section 111(d)/129 plan for HMIWI units submitted pursuant to 40 CFR part 60, subpart Ce because the plan is at least as stringent as requirements in 40 CFR part 60, subpart Ce. Therefore, EPA is proposing to amend 40 CFR part 62, subpart V to reflect this action. The scope of the proposed approval of the section 111(d)/129 plan is limited to the provisions of 40 CFR parts 60 and 62 for existing HMIWI units, as referenced in the emission guidelines, subpart Ce.

    The EPA Administrator continues to retain authority for several tasks affecting the regulation of HMIWI units, as stipulated in 40 CFR 60.32e(k) and 60.50c(i). This retention of authority includes the granting of waivers for performance tests.

    IV. Statutory and Executive Order Reviews

    In reviewing section 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

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

    In addition, this proposed rule for existing HMIWI units within the State of Maryland does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the section 111(d)/129 plan is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 16, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-28428 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R10-RCRA-2016-0622; FRL 9928-26-Region 10] Determination of Full Program Adequacy of Washington's Municipal Solid Waste Landfill Permit Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Under the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments, States must develop and implement permit programs for Municipal Solid Waste Landfills (MSWLF) and seek an adequacy determination by the Environmental Protection Agency (EPA). This proposed rule documents EPA's determination that Washington's MSWLF permit program is adequate to ensure compliance with Federal MSWLF requirements.

    DATES:

    Comments on this proposed action must be received in writing on or before January 27, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-RCRA-2016-0622 by one of the following methods:

    www.regulations.gov: Follow the on-line instructions for submitting comments.

    Email: [email protected].

    Fax: (206) 553-6640, to the attention of Domenic Calabro.

    Mail: Send written comments to Domenic Calabro, U.S. EPA, Region 10, 1200 Sixth Avenue, Suite 900, Mailstop: AW-150, Seattle, WA 98101.

    Hand Delivery or Courier: Deliver your comments to: Domenic Calabro, Office of Air and Waste, U.S. EPA, Region 10, 1200 Sixth Avenue, Suite 900, Mailstop: AW-150, Seattle, WA 98101. Such deliveries are only accepted during the Office's normal hours of operation.

    FOR FURTHER INFORMATION CONTACT:

    U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, Mailcode: AW-150, Seattle, Washington, 98101, Attn: Mr. Domenic Calabro. Telephone: (206) 553-6640.

    SUPPLEMENTARY INFORMATION:

    In the Rules and Regulations section of this issue of the Federal Register, the EPA is granting Washington a determination of full program adequacy for its MSWLF permitting program through a direct final rule without prior proposal, because the EPA views this as a noncontroversial action and anticipates no adverse comments to this action. Unless we receive written adverse comments which oppose this approval during the comment period, the direct final rule will become effective on the date it establishes, and we will not take further action on this proposal. If written adverse comments are received, the EPA will review the comments and publish another Federal Register document responding to the comments and either affirming or revising the initial decision. For additional information, see the direct final rule which is located in the Rules and Regulations section of this issue of the Federal Register.

    List of Subjects 40 CFR Part 239

    Environmental protection, Administrative practice and procedure, Intergovernmental relations, Waste treatment and disposal.

    40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.

    Authority:

    This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a).

    Dated: October 20, 2016. Dennis J. McLerran, Regional Administrator, EPA Region 10.
    [FR Doc. 2016-26750 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260, 262, 264, 265 and 267 [EPA-HQ-OLEM-2016-0492; FRL-9954-26-OLEM] RIN 2050-AG90 Internet Posting of and Confidentiality Determinations for Hazardous Waste Export and Import Documents AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is amending existing regulations regarding the export and import of hazardous wastes from and into the United States. EPA is making these changes to improve protection of public health with respect to hazardous wastes by ensuring public accessibility and transparency of export and import documentation. Specifically, the proposed revisions of the existing regulations will require exporters of hazardous waste and receiving facilities recycling or disposing hazardous waste from foreign sources to maintain a single publicly accessible Web site (“Export/Import Web site”) to which documents can be posted regarding the confirmation of receipt and confirmation of completed recovery or disposal of individual hazardous waste import and export shipments. These proposed changes will improve information on the movement and disposition of hazardous wastes, and will enable interested members of the community and the government to benefit from the provision of publicly accessible data to better monitor proper compliance with EPA's hazardous waste regulations and help ensure that hazardous waste import and export shipments are properly received and managed. The proposed internet posting requirements are planned for the interim period prior to the electronic import-export reporting compliance date when electronic submittal to EPA of confirmations of receipt and completed recovery or disposal for hazardous waste shipments will be required. EPA also proposes a confidentiality determination to exclude documents related to the export, import, and transit of hazardous waste and export of excluded CRTs from confidential business information (CBI) claims.

    DATES:

    Comments must be received on or before January 27, 2017. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before December 28, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2016-0492 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Laura Coughlan, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (703) 308-0005; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The information presented in this preamble is organized as follows:

    I. General Information A. List of acronyms used in this action B. What are the statutory authorities for this proposed rule? C. Does this action apply to me? D. What is the purpose of this proposed rule? E. Brief description of this proposal 1. Internet Posting of Confirmations of Receipt and Confirmations of Recovery or Disposal 2. CBI Claims for Hazardous Waste Export and Import Documents 3. Release of Aggregate Data and Competitive Harm Concerns II. Background A. RCRA General Hazardous Waste Export and Import Requirements B. EPA's Transition to Electronic Submittal of Export and Import Documents 1. Why is EPA proposing to require that importers and exporters maintain a Web site to post hazardous waste export and import documents? 2. What are the confirmations of receipt and confirmations of recovery or disposal and how will internet posting of these documents help improve tracking and monitoring of individual hazardous waste shipments? 3. What accommodations will EPA make to allow original submitters of information and affected facilities to protect potential confidential business information (CBI) contained in the documents posted to the Export/Import Web site? 4. What recordkeeping requirements apply to confirmations of receipt and confirmations of recovery or disposal with this proposed rule? III. Summary of This Proposed Rule A. Changes to 40 CFR 260.2 B. Changes to 40 CFR 262.83 and 262.84 C. Changes to 40 CFR 264.74 D. Changes to 40 CFR 265.74 E. Changes to 40 CFR 267.71 IV. Costs and Benefits of the Proposed Rule A. Introduction B. Analytical Scope C. Cost Impacts D. Benefits V. State Authorization VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. List of Acronyms Used in This Action Acronym Meaning AES Automated Export System AOC Acknowledgment of Consent (issued by EPA) CBI Confidential Business Information CEC Commission for Environmental Cooperation CFR Code of Federal Regulations CRT Cathode Ray Tube EPA United States Environmental Protection Agency FR Federal Register HSWA Hazardous and Solid Waste Amendments NAFTA North American Free Trade Agreement OECD Organization for Economic Cooperation and Development OIG EPA's Office of Inspector General OMB Office of Management and Budget RCRA Resource Conservation and Recovery Act SIC Standard Industrial Classification SLAB Spent Lead-Acid Battery WIETS EPA's Waste Import Export Tracking System B. What are the statutory authorities for this proposed rule?

    EPA's authority to promulgate this rule is found in sections 1002, 2002(a), 3001-3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901 et. seq., 6905, 6912, 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.

    C. Does this action apply to me?

    The internet posting requirements in this action generally affect two (2) groups: (1) All persons who export (or arrange for the export) of hazardous waste for recycling or disposal, including those hazardous wastes subject to the alternate management standards for (a) universal waste for recycling or disposal, (b) spent lead-acid batteries (SLABs) being shipped for reclamation, (c) industrial ethyl alcohol being shipped for reclamation, (d) hazardous waste samples of more than 25 kilograms being shipped for waste characterization or treatability studies, and (e) hazardous recyclable materials being shipped for precious metal recovery; and (2) all recycling and disposal facilities who receive imports of such hazardous wastes for recycling or disposal. The application of these confidentiality determinations to certain export, import, and transit documents affects the groups described previously in addition to exporters of cathode ray tubes (CRTs). Potentially affected entities may include, but are not limited to:

    NAICS Code NAICS Description 211 Oil and Gas Extraction. 324 Petroleum and Coal Products Manufacturing. 325 Chemical Manufacturing. 326 Plastics and Rubber Products Manufacturing. 327 Nonmetallic Mineral Product Manufacturing. 331 Primary Metal Manufacturing. 332 Fabricated Metal Product Manufacturing. 333 Machinery Manufacturing. 334 Computer and Electronic Product Manufacturing. 335 Electrical Equipment, Appliance, and Component Manufacturing. 336 Transportation Equipment Manufacturing. 339 Miscellaneous Manufacturing. 423 Merchant Wholesalers, Durable Goods. 424 Merchant Wholesalers, Nondurable Goods. 522 Credit Intermediation and Related Activities. 525 Funds, Trusts, and Other Financial Vehicles. 531 Real Estate. 541 Professional, Scientific, and Technical Services. 561 Administrative and Support Services. 562 Waste Management and Remediation Services. 721 Accommodation. 813 Religious, Grantmaking, Civic, Professional, and Similar Organizations. 211 Oil and Gas Extraction. 324 Petroleum and Coal Products Manufacturing.

    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this proposed rule to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

    D. What is the purpose of this proposed rule?

    This rule proposes two types of amendments. First, EPA is proposing certain amendments to the current RCRA regulations in part 262 governing exports and imports of hazardous waste in order to improve protection of public health and the environment by strengthening the public accessibility and transparency of documentation to better monitor proper compliance with EPA's hazardous waste regulations and help ensure that hazardous waste shipments are properly received and disposed. To achieve these goals, EPA is proposing to require internet posting of confirmation of receipt and confirmation of recovery or disposal documents (i.e., two documents per import shipment and two documents per export shipment) where they are required for individual export and import shipments of hazardous wastes, prior to the electronic import-export reporting compliance date EPA will establish in a separate Federal Register notice. The proposed rule is a companion to EPA's Hazardous Waste Export-Import Revisions Final Rule also published in the “Rules and Regulations” section of this Federal Register, which is one of the Agency's priority actions under its plan for periodic retrospective reviews of existing regulations, as called for by Executive Order 13563. The proposed internet posting requirements are planned to be effective during the interim period prior to the electronic import-export reporting compliance date when electronic submittal to EPA of confirmations of receipt and confirmations of recovery or disposal for hazardous waste shipments will be required.

    Second, EPA is also proposing confidentiality determinations with respect to CBI claims for the individual documents and compiled data for the following types of export and import documents, which will hereinafter be referred to as aforementioned “documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs)”:

    (1) Documents related to the export of Resource Conservation and Recovery Act (RCRA) hazardous waste under 40 CFR part 262, subpart H, including but not limited to the notifications of intent to export, contracts submitted in response to requests for supplemental information from countries of import or transit, RCRA manifests, annual reports, EPA acknowledgements of consent, any subsequent communication withdrawing a prior consent or objection, responses that neither consent nor object, exception reports, transit notifications, and renotifications;

    (2) Documents related to the import of hazardous waste, under 40 CFR part 262, subpart H, including but not limited to contracts and notifications of intent to import hazardous waste into the U.S. from foreign countries or U.S. importers;

    (3) Documents related to the confirmation of receipt and confirmation of recovery or disposal of hazardous waste exports and imports, under 40 CFR part 262, subpart H;

    (4) Documents related to the transit of hazardous waste, under 40 CFR part 262, subpart H, including notifications from U.S. exporters of intent to transit through foreign countries, or notifications from foreign countries of intent to transit through the U.S.;

    (5) Documents related to the export of cathode ray tubes (CRTs), under 40 CFR part 261, subpart E, including but not limited to notifications of intent to export CRTs;

    (6) Documents related to the export of non-crushed spent lead acid batteries (SLABs) with intact casings, under 40 CFR part 266 subpart G, including but not limited to notifications of intent to export SLABs;

    (7) Submissions from transporters under 40 CFR part 263, or from treatment, storage or disposal facilities under 40 CFR parts 264 and 265, related to exports or imports of hazardous waste, including but not limited to receiving facility notices of the need to arrange alternate management or return of an import shipment under 40 CFR 264.12(a)(3) and 265.12(a)(3); and

    (8) Documents related to the export and import of RCRA universal waste under 40 CFR part 273, subparts B, C, D, and F.

    We propose to apply confidentiality determinations such that no CBI claims may be asserted by any person with respect to any of the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. EPA's determination that revisions to the export/import regulations are needed is bolstered by the concerns and recommendations in both the 2013 Commission for Environmental Cooperation (CEC) report on export and recycling of spent lead-acid batteries (SLABs) within North America (“Hazardous Trade? An Examination of US-generated Spent Lead-acid Battery Exports and Secondary Lead Recycling in Mexico, the United States and Canada”) and the 2015 EPA Office of Inspector General (OIG) report on hazardous waste imports (“EPA Does Not Effectively Control or Monitor Imports of Hazardous Waste”). Based on its findings, the CEC report recommended that the U.S. require the use of manifests for each international shipment of SLABs, require exporters to obtain a confirmation of recovery from foreign recycling facilities, explore establishing an electronic export annual report, and better share export and import data between environmental and border agencies. For a more complete discussion of the CEC report and EPA's related analysis, see Section VII of the Hazardous Waste Export-Import Revisions proposed rule (80 FR 63304). The 2015 EPA OIG report recommended that EPA improve the oversight of hazardous waste imports, including tracking of all hazardous waste import shipments. Copies of the CEC and EPA OIG reports can be found in the Docket for the Hazardous Waste Export-Import Revisions proposed rule (Docket ID No. EPA-HQ-RCRA-2015-0147, documents EPA-HQ-RCRA-2015-0147-0009 and EPA-HQ-RCRA-2015-0147-0011, respectively), and copies have been placed in the docket for this proposed rule.

    EPA is particularly interested in input on this proposed action from persons who export hazardous waste or CRTs and those persons who receive imported hazardous waste, including those persons receiving imported or exporting hazardous wastes managed under the special management standards in 40 CFR part 266 (e.g., spent lead acid batteries) and 40 CFR part 273 (e.g., universal waste batteries, universal waste mercury lamps).

    E. Brief Description of This Proposal 1. Internet Posting of Confirmations of Receipt and Confirmations of Recovery or Disposal

    EPA is proposing to modify the reporting and recordkeeping requirements for exporters of hazardous waste and receiving facilities of hazardous waste imports such that, prior to the electronic import-export reporting compliance date to be established in a future, separate Federal Register notice, they are required to maintain a single publicly accessible Web site (herein referred to as the “Export/Import Web site”) where the following documents will be posted: Export confirmations of receipt; export confirmations of recovery or disposal; import confirmations of receipt; and import confirmations of recovery or disposal. EPA is requesting comment on the time period during which exporters and receiving facilities should be required to post these documents to their Web site and whether such information should continue to be publicly available after the interim period, once EPA receives submittals of such documents electronically.

    EPA is proposing that the required documents be posted as read-only, publicly accessible, downloadable images. Examples of acceptable document formats include, but are not limited to, Portable Document Format (PDF), Joint Photographic Experts Group (JPEG), and Graphics Interchange Format (GIF). If a publicly available Web site is not available, exporters and receiving facilities must develop a publicly accessible Web site to post the required documents. If a company has more than one physical site from which it exports hazardous waste or receives hazardous waste imports for recycling or disposal, the company must clearly group the posted documents by individual physical facility site. In addition, the documents for each physical site must be clearly organized by the consent number relevant to each export or import shipment. The company's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The documents and their respective file names posted to the Export/Import Web site must clearly identify the type of document, EPA ID number of the exporting or receiving facility, the consent number associated with the shipment, and the related shipment number (e.g., Shipment No. 1 out of an expected 200 shipments for the consent number). We suggest the following standard nomenclature for file names:

    • Exporter confirmation of receipt: EX_Conf_Receipt_[EPA ID No.]_[Consent No.]_[Shipment No.]

    • Exporter confirmation of recovery or disposal: EX_Conf_Recovery_[EPA ID No.]_[Consent No.]_[Shipment No.]

    • Receiving facility confirmation of receipt: RF_Conf_Receipt_[EPA ID No.]_[Consent No.]_[Shipment No.]

    • Receiving facility confirmation of recovery or disposal: RF_Conf_Recovery_[EPA ID No.]_[Consent No.]_[Shipment No.]

    EPA requests comment on the recommended organizational aspects of the Web site, and the proposed standard file name format, including whether the proposed standard file name format should be mandatory.

    EPA is proposing that the documents posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal received by the exporter or sent out by the receiving facility related to exports or imports of hazardous waste made during the previous calendar year. Each document must be available for a period of at least three years following the date on which each document was first required to be posted to the Web site. Furthermore, in accordance with current recordkeeping requirements, paper copies of export and import confirmations of receipt and confirmations of recovery or disposal must be retained by exporters and receiving facilities for a period of at least three (3) years.

    2. CBI Claims for Hazardous Waste Export and Import Documents

    EPA is also proposing confidentiality determinations and will no longer accept future CBI claims for the individual aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. Our rationale is explained in the following paragraphs.

    To date, our records indicate that EPA has received three assertions of confidentiality, one from Horizon Environment, Inc. in 2004 and two from Johnson Controls Battery Group, Inc. in 2011 and 2012 for certain information contained in hazardous waste export documents. In all three cases, the Agency determined that the information claimed as confidential was not entitled to confidential treatment, as explained in the following paragraphs.

    Horizon Environment, Inc. and Johnson Controls Battery Group, Inc. asserted claims of confidentiality for certain hazardous waste export documents that were responsive to a request to EPA under the Freedom of Information Act (FOIA). Horizon's claims related to export notices, and Johnson Controls' claims related to annual reports.

    Exemption 4 of the Freedom of Information Act (FOIA) exempts from disclosure “trade secrets and commercial information obtained from a person and privileged or confidential” (see 5 U.S.C. § 552(b)(4)). In order for information to meet the requirements of Exemption 4, EPA must find that the information is either (1) a trade secret; or (2) commercial or financial information obtained from a person and privileged or confidential (commonly referred to as “Confidential Business Information” (CBI)).

    Trade Secret

    The two companies' confidentiality claims did not assert that the information was a trade secret, nor did they provide information about how the Agency's release of this information would identify a plan, formula, process, or device. The companies also did not demonstrate how disclosure of the information would identify or reveal a trade secret. Consequently, EPA found that the information did not constitute a trade secret.

    Confidential Business Information (CBI)

    In order to qualify as CBI under Exemption 4, the information must be “privileged or confidential.” Both companies claimed the information to be confidential, but did not claim that the information was privileged. Information that is required to be submitted to the Government is confidential if its “disclosure would be likely either (1) to impair the Government' s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.”' Critical Mass, 975 F.2d at 878 (quoting National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)) (footnote omitted). In these cases, the Agency had the authority to require the submission of the information and exercised it. Therefore, EPA concluded that the information was a required submission and was not voluntary.

    In terms of competitive harm, as set forth in EPA's regulations at 40 CFR 2.208, required business information is entitled to confidential treatment if: The business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position. After careful consideration of the arguments submitted by both companies, EPA concluded that neither claim explained specifically how disclosure of the information in the submissions would likely cause substantial competitive harm to the companies, and therefore did not support the claim of competitive harm. Accordingly, EPA concluded that release of this was not likely to cause substantial harm to the companies' competitive positions.

    As a result of these analyses, EPA found that the information claimed as confidential was not a trade secret or CBI and, therefore, was not within the scope of Exemption 4 of the FOIA. Based on EPA's analysis and decision in the confidentiality claims asserted by these two companies for their hazardous waste export notices and annual reports, EPA expects to apply a similar analysis and reach a similar decision with respect to these types of documents as well as the other aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs that would be submitted to EPA by other companies. Therefore, EPA proposes to make a confidentiality determination in this rule that all of the aforementioned documents are not confidential.

    In addition, EPA has issued an annual Federal Register publication requesting comment from affected businesses (other than original submitters), as defined in 40 CFR 2.201(d), on their need to assert confidentiality claims for documents and data compiled from such documents submitted by original submitters related to the export, import and transit of RCRA hazardous waste, including those hazardous wastes managed under the special management standards in 40 CFR part 266 (e.g., spent lead acid batteries) and 40 CFR part 273 (e.g., universal waste batteries, universal waste mercury lamps), and related to the export of CRTs under 40 CFR part 261, made during the previous calendar year, prior to EPA considering such documents releasable upon public request. The annual Federal Register publications have not addressed CBI claims likely to be made by the original submitters, since RCRA regulations at 40 CFR 260.2(b) already address the CBI requirements for original submitters. To date, EPA has never received a comment from any business not an original submitter as a result of the annual Federal Register publication.

    As discussed previously, EPA's regulations at 40 CFR 2.208 state that, in order for business information to be entitled to confidential treatment, the Agency must have determined that such claims meet several criteria.

    EPA believes that the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs do not meet several of the criteria listed in 40 CFR 2.208. Our rationale is explained in the following paragraphs.

    EPA believes that any CBI claim that might be asserted with respect to the individual selected hazardous waste documents would be extremely difficult to sustain under the substantive CBI criteria set forth in the Agency's CBI regulations (40 CFR part 2, subpart B). For example, to make a CBI claim, a business must satisfactorily show that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures. The selected hazardous waste documents submitted to the Agency are also shared with several commercial entities while they are being processed and used. As a result, a business concerned with protecting its commercial information would find it exceedingly difficult to protect its records from disclosure by all the other persons who come into contact with such export, import and transit documents. For example, a business wanting to protect commercial information contained in individual hazardous waste export and import documents would need to enter into and enforce non-disclosure agreements or similar legal mechanisms with all its customers and other third parties and affected interests who might also be named as waste handlers on the documents or who otherwise might be expected to come into contact with its documents.

    Furthermore, to substantiate a CBI claim, a business must also show that the information is not, and has not been, reasonably obtainable without the business's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding). As described previously, the selected hazardous waste documents are shared with several commercial entities throughout the chain of custody of a hazardous waste shipment. Therefore, information contained in these documents is relatively easily accessible to other parties without the business's explicit consent.

    For these reasons, EPA believes that any CBI claim that might be asserted with respect to the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs would be difficult to sustain under the substantive CBI criteria (40 CFR part 2, subpart B).

    Finally, EPA has established precedent in applying confidentiality determinations to RCRA hazardous waste documents. On February 7, 2014, EPA published the Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests final rule which made a categorical determination for individual RCRA hazardous waste manifest records. In EPA's Notice of Data Availability and Request for Comment on the Agency's Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System (73 FR 10204) published on February 26, 2008, EPA concluded that information contained in individual manifested records is essentially public information and therefore is not eligible under federal law for treatment as CBI. The effect of this decision was that EPA made a categorical determination that it will not accept any CBI claims that might be asserted in connection with processing, using, or retaining individual paper or electronic manifests. Because the information contained in RCRA manifests is largely similar to the information contained in individual hazardous waste export and import documents, such as the name, address, and other information about the generator, transporter, and destination or receiving facility, EPA believes that the decision to apply categorical determinations for electronic manifests further supports the proposed confidentiality determination in this action for the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs) and related aggregate information.

    Based on our analysis of the CBI criteria in 40 CFR part 2, subpart B, the absence of successful confidentiality claims by the original submitters of information and the lack of assertions of confidentiality submitted by affected businesses other than original submitters in response to the annual Federal Register publication, EPA believes that our proposed confidentiality determination to exclude from CBI claims and release on an annual basis the aforementioned documents is reasonable.

    EPA requests comment on our proposed confidentiality determination to prospectively exclude the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs from eligibility for CBI claims. In addition, the Agency believes that these documents do not qualify for the FOIA exemption for personal privacy, and thus the names of company employees or independent contractors that appear in these documents would not be exempt from public release. These documents do not qualify for the personal privacy exemption because the aforementioned documents submitted to the Agency are also shared with several commercial entities while they are being processed and used. As such, such persons whose names appear in these documents have no expectation of privacy. EPA requests public comment on this position.

    EPA proposes not to make publicly accessible the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs during the previous calendar year until March 1 of the succeeding year, except as required by applicable federal law, because EPA considers that these documents are still not in final form. Access would be limited while the data are being collected and verified, as data are processed, and exceptions or discrepancies are being resolved. This decision would not impact any CBI claims or any determinations made in the past by EPA in resolving CBI claims related to the export, import, and transit of hazardous waste and export of excluded CRTs.

    EPA requests comment on our proposed confidentiality determination that the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs, and data compiled from such documents, would be excluded from CBI claims and made releasable on an annual basis, except as required by applicable federal law. EPA also requests comment on whether requiring that internet posting of confirmations of receipt and confirmations of recovery or disposal by March 1 of each year is an appropriate timeframe for the documents to be considered in final form.

    3. Release of Aggregate Data and Competitive Harm Concerns

    EPA understands that the waste management industry may be concerned that the aggregation of the data contained in the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs may enable competitors to obtain more immediate and efficient access to customer information, thus potentially creating competitive consequences not previously experienced under the current paper system. Exemption 4 of the Freedom of Information Act (FOIA) exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential” (5 U.S.C. 552(b)(4)). In order for information to meet the requirements of Exemption 4, EPA must find that the information is either (1) a trade secret; or (2) commercial or financial information obtained from a person and privileged or confidential (commonly referred to as “Confidential Business Information' (“CBI”)). Since the individual aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs would not be eligible for CBI treatment for the reasons discussed previously, it is a novel issue for EPA whether requests under FOIA for data aggregated from multiple selected records would require special handling by EPA under the FOIA exemption for confidential business information.

    Therefore, EPA is seeking public comment on how, if at all, EPA should address any future FOIA requests for aggregate data from the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. First, EPA needs information on how substantial the harm would be to a company's competitive position if aggregate data from multiple manifests could be obtained from EPA under a FOIA request. How would this situation differ quantifiably from the current situation where a FOIA request can be made for several of the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs and the requester must then aggregate the relevant data in each of these manifests for himself or herself?

    Given our uncertainty about the adverse effects or competitive harm to waste management businesses that would submit hazardous waste export and import documents to EPA, we seek comment on whether the release of aggregated data would adversely impact waste management businesses. In particular, we ask that the waste management industry substantiate their concerns, if any, that the aggregation of manifest data and the subsequent disclosure of that data would somehow release their company's confidential business information and thus cause substantial competitive harm to them.

    If EPA were to determine that the waste management industry concerns for the disclosure of aggregate information are legitimate and that they are not sufficiently addressed by the approach described previously in this proposal, then we could develop another approach to mitigate the ability to efficiently create customer lists from aggregated data. We therefore request comment on how EPA should design and implement an approach to protect the disclosure of aggregate data of competitive value, if such an approach were appropriate. For example, what are the indicators of aggregated requests (e.g., requests of 50 or more import, export or transit documents involving a single exporter or importer) that would justify our handling aggregated data differently from individual manifests for FOIA disclosure purposes? What information should be redacted from the data that are released to mitigate any competitive harm from the data disclosure?

    If, however, EPA were to determine that the release of aggregate information would not be entitled to confidentiality, EPA would make publicly available such aggregate information in addition to individual documents discussed previously.

    The proposed internet posting requirements do not affect the current recordkeeping requirements for retaining paper copies of the export confirmations of receipt, export confirmations of completing recovery or disposal, import confirmations of receipt, and import confirmations of completing recovery or disposal. These paper documents must be retained by exporters and receiving facilities for a period of at least three (3) years.

    II. Background A. RCRA General Hazardous Waste Export and Import Requirements

    EPA's hazardous waste export and import regulations were originally promulgated in 1986, and have been revised multiple times. For more information about these requirements and revisions that are being published in this issue of the Federal Register, see “Hazardous Waste Export-Import Revisions Final Rule” found in the “Rules and Regulations” section of this Federal Register.

    B. EPA's Transition to Electronic Submittal of Export and Import Documents

    Under the newly revised requirements in 40 CFR parts 262, 264 and 265, as amended in EPA's Hazardous Waste Export-Import Revisions Final Rule (found in the “Rules and Regulations” section of this Federal Register), export notices for hazardous waste (40 CFR 262.83(b)) and export notices for CRTs being shipped for recycling (40 CFR 261.39(a)(5)(ii)) are required to be submitted electronically to EPA using EPA's Waste Import Export Tracking System (WIETS) starting on December 31, 2016. Export annual reports for hazardous waste (40 CFR 262.83(g)) and export annual reports for CRTs being shipped for recycling (40 CFR 261.39(a)(5)(xi)) are required to be submitted by paper method prior to one year after a future Automated Export System (AES) filing compliance date to be announced in a future, separate Federal Register notice, and then submitted electronically into EPA's WIETS system thereafter. The following documents related to hazardous waste exports and imports are required to be submitted to EPA by paper method prior to a future electronic import-export reporting compliance date to be established in a future, second separate Federal Register notice, and then submitted electronically into EPA's WIETS system thereafter:

    • Import notices for hazardous waste in cases where country of export does not control as hazardous waste export and EPA has not received notice from country of export (40 CFR 262.84(b));

    • Export exception reports for hazardous waste (40 CFR 262.83(h), in lieu of exception reporting required under 40 CFR 262.42);

    • Receiving facility notifications of the need to arrange alternate management or the return of an import shipment of hazardous waste (262.84(f)(6), 264.12(a)(4)(ii), 265.12(a)(4)(ii)).

    As of the electronic import-export reporting compliance date, per the newly revised requirements in 40 CFR parts 262, 264 and 265, as amended in EPA's Hazardous Waste Export-Import Revisions Final Rule (found in the “Rules and Regulations” section of this Federal Register), the following additional confirmation documents must be submitted electronically to EPA regarding hazardous waste import and export shipments:

    (a) Export confirmations of receipt using movement document (submittal by foreign recovery facility required per contract requirements, 40 CFR 262.83(d)(xv) and 262.83(f)(4));

    (b) Export confirmations of completing recovery or disposal (submittal by foreign recovery facility required per contract requirements, 40 CFR 262.83(f)(5));

    (c) Import confirmations of receipt using movement document (40 CFR 262.84(d)(xv), 264.12(a)(2), 264.71(d), 265.12(a)(2), 265.71(d));

    (d) Import confirmations of completing recovery or disposal (40 CFR 262.84(g), 264.12(a)(4)(i), 265.12(a)(4)(i)).

    To facilitate accessibility and transparency of documentation concerning import and export shipments of hazardous waste that are received and completely recovered or disposed of during the period prior to the electronic import-export reporting compliance date, EPA is proposing that exporters and receiving facilities of hazardous waste maintain a publicly accessible Web site (“Export/Import Web site”) to which the four confirmation documents listed previously in (a), (b), (c), and (d) would be posted. EPA believes that easier access to this information will allow EPA and the public to better monitor exporters' and importers' compliance with EPA's hazardous waste regulations and help verify that hazardous waste shipments are properly received and disposed.

    EPA believes the internet is currently the most convenient and widely accessible means for gathering information while the Agency develops electronic submittal capabilities for WIETS. After the electronic import-export reporting compliance date, when EPA's WIETS is ready to receive these export and import confirmations electronically, exporters and receiving facilities will no longer be required to post these confirmations on their respective company's Web site, as the regulations would then require electronic submittal of the export and import shipment confirmations to EPA using WIETS.

    1. Why is EPA proposing to require that importers and exporters maintain a Web site to post hazardous waste export and import documents?

    EPA's proposal requires exporters and receiving facilities of hazardous waste to maintain a Web site to which information can be posted regarding the confirmation of receipt and confirmation of completed recovery or disposal of individual hazardous waste export and import shipments. The Web site is an appropriate means for ensuring public access to the required information while the Agency develops the electronic submittal capabilities of WIETS. EPA intends for such postings to the exporter or receiving facility's Web site to be a temporary requirement to be superseded on the electronic import-export reporting compliance date when they will be required to electronically submit the confirmations to WIETS.

    2. What are the confirmations of receipt and confirmations of recovery or disposal and how will internet posting of these documents help improve tracking and monitoring of individual hazardous waste shipments?

    The confirmation of receipt is a copy of the signed and dated international movement document that must accompany a consented hazardous waste shipment from the starting site in the country of export to the destination site in the country of import. To confirm receipt of the shipment, U.S. exporters must ensure that copies of the signed movement document (i.e., confirmation of receipt) be sent by the foreign destination facility to the exporter and to the countries of export (as of the electronic import-export reporting compliance date), import, and transit that respectively control the shipment as an export, import or transit of hazardous waste. Similarly, U.S. receiving facilities that receive imports of hazardous waste must send copies of the confirmation of receipt to the foreign exporter and to the countries of export, import (as of the electronic import-export reporting compliance date) and transit. The confirmation of receipt reduces the risk of a shipment being misdirected to a country or facility not approved to receive the shipments for disposal or recovery. The confirmation of receipt also highlights any incident where the shipment is interrupted or misdirected, as the exporter and competent authorities will not receive the confirmation from the approved destination facility within expected timeframes. Lastly, the confirmation of receipt provides documentation for both the exporter and the countries of import and export that the shipment in fact went to the approved recycling or disposal facility.

    The confirmation of recovery or disposal documents the completion of final management (i.e., treatment and disposal, recovery) of each hazardous waste export or importshipment. Once received at the approved facility, management (i.e., treatment and disposal, recovery) of each shipment is required to be completed within one year of shipment delivery. For export shipments the U.S. exporter must ensure that the foreign destination facility send confirmation of completing such management back to the exporter and to the countries of export (as of the electronic import-export reporting compliance date), import, and transit that respectively control the shipment as an export or transit of hazardous waste. Similarly for import shipments, a U.S. recycling or disposal facility receiving an import of hazardous waste must send such confirmation back to the exporter and to the countries of export, import (as of the electronic import-export reporting compliance date) and transit. Requiring destination facilities to send such confirmation to the exporter and to the competent authorities of the countries of export and import of the shipment, helps minimize the risk of speculative accumulation or abandonment of the waste shipments, and decreases the potential for associated damage to human health and the environment.

    As described previously, the confirmation of receipt and confirmation of recovery or disposal are important requirements that document the receipt and final disposition of individual hazardous waste export and import shipments. With regards to exports, the confirmations are the only records documenting that hazardous waste shipments are properly received and managed in the foreign country importing the waste. EPA believes that public access to these documents on the Web sites of exporters and receiving facilities of hazardous waste from foreign sources facilitates the tracking and monitoring compliance of hazardous waste shipments in accordance with EPA's hazardous waste regulations and helps verify that hazardous waste shipments are properly received and disposed.

    3. What accommodations will EPA make to allow original submitters of information and affected facilities to protect potential confidential business information (CBI) contained in the documents posted to the Export/Import Web site?

    As discussed in the previous section, EPA proposes to apply confidentiality determinations to the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. Based on our analysis of the CBI criteria provided in Section I.E. of this proposed rule, we conclude that the information contained in the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs is essentially public information. Therefore, we propose that no CBI claims may be asserted with respect to any of the aforementioned documents, including hazardous waste export and import confirmations of receipt and confirmations of recovery or disposal.

    4. What recordkeeping requirements apply to confirmations of receipt and confirmations of recovery or disposal with this proposed rule?

    Each confirmation of receipt and confirmation of recovery or disposal posted to the company Web sites of hazardous waste exporters and receiving facilities of hazardous waste from foreign sources must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. The proposed internet posting requirements do not affect the current recordkeeping requirements for retaining paper copies of the export confirmations of receipt, export confirmations of completing recovery or disposal, import confirmations of receipt, and import confirmations of completing recovery or disposal. These paper documents must be retained by exporters and receiving facilities for a period of at least three (3) years.

    After the electronic import-export reporting compliance date when confirmations will be submitted electronically, the requirement to post these copies and to make them publicly available for three years does not apply. Records of the confirmations must be kept as either paper copies or electronic submittals retained in the exporter's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for reviewing and production if requested by any EPA or authorized state inspector, as stated in the Hazardous Waste Export-Import Revisions rule published in this Federal Register and in § 262.83(i)(2) and § 262.84(h)(3).

    III. Summary of This Proposed Rule A. Changes to 40 CFR 260.2

    EPA is proposing a confidentiality determination to exclude hazardous waste export, import, and transit documents and CRT export documents from confidentiality claims.

    B. Changes to 40 CFR 262.83 and 262.84

    EPA is proposing to modify the reporting and recordkeeping requirements for exporters of hazardous waste and receiving facilities such that, prior to the future electronic import/export reporting compliance date, regulated parties are required to maintain a single, publicly accessible Web site (“Export/Import Web site”) containing readable, read-only, publicly accessible, downloadable images of the following documents: Export confirmations of receipt; export confirmations of recovery or disposal; import confirmations of receipt; and import confirmations of recovery or disposal. The exporter's Web site must be titled “Hazardous Waste Export/Import Regulations Compliance Documents.”

    Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal received by the exporter or sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date. The documents must clearly identify the EPA ID number of the exporter or receiving facility, the consent number associated with the shipment, and the shipment number relative to the total number of allowable shipments for the consent number. These documents must be retained by exporters or receiving facilities for a period of at least three (3) years.

    C. Changes to 40 CFR 264.74

    EPA is proposing to modify the reporting and recordkeeping requirements for the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source such that, prior to the future electronic import-export reporting compliance date, regulated parties will be required to maintain a single, publicly available Web site containing readable, read-only, publicly accessible, downloadable images of the following documents: Import confirmations of receipt and import confirmations of recovery or disposal. The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. (This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date.) These documents must be retained by the receiving facilities for a period of at least three (3) years.

    D. Changes to 40 CFR Part 265.74

    EPA is proposing to modify the reporting and recordkeeping requirements for the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source such that, prior to the future electronic import-export reporting compliance date, regulated parties will be required to maintain a single, publicly available Web site containing readable, read-only, publicly accessible, downloadable images of the following documents: Import confirmations of receipt and import confirmations of recovery or disposal documents. The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date. These documents must be retained by the receiving facilities for a period of at least three (3) years.

    E. Changes to 40 CFR Part 267.71

    EPA is proposing to modify the reporting and recordkeeping requirements for the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source such that, prior to the future electronic import-export reporting compliance date, regulated parties will be required to maintain a single, publicly available Web site containing readable, read-only, publicly accessible, downloadable images of the import confirmations of receipt. The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date. These documents must be retained by the receiving facilities for a period of at least three (3) years.

    IV. Costs and Benefits of the Proposed Rule A. Introduction

    The Agency's economic assessment conducted in support of this proposed action evaluates costs, cost savings, benefits, and other impacts, such as environmental justice, children's health, unfunded mandates, regulatory takings, and small entity impacts. To conduct this analysis, we developed and implemented a methodology for examining impacts, and followed appropriate guidelines and procedures for examining equity considerations, children's health, and other impacts.

    B. Analytical Scope

    This economic analysis assesses the costs and cost savings of the proposed rule. It estimates the unit costs for each provision of the rule and applies these values to the number of affected entities, and it employs a “model entity” approach to estimate the cost and cost savings associated with the proposed rule, applying average costs by entity type (i.e., exporter, importer, transporter, or recognized trader) and foreign trade partner. The costs (and cost savings) of the proposed rule are estimated over a twenty-year time horizon and using a seven percent discount rate.

    The analysis conducted for this proposal is a simple cost assessment. We do not attempt to estimate the social costs and benefits associated with this action. This is consistent with Executive Order 12866, which requires a full Regulatory Impact Analysis only for actions having an estimated impact on society of greater than $100 million per year.

    C. Cost Impacts

    Regulated parties will incur costs to familiarize itself with the requirements of the rule and comply with each of the provisions described in the summary of the proposed rule and changes. The most significant costs to industry under the proposed rule are associated with the posting of the required documents to the Export/Import Web site until the electronic submittal capabilities of WIETS are fully developed.

    As a result of the rule, the annualized costs to regulated parties are estimated to be about $99,309 if the electronic submittal capabilities of WIETS are developed in 2018 and estimated to be about $333,993 if the electronic submittal capabilities of WIETS are developed in 2022, using a 7 percent discount rate.

    D. Benefits

    There are a number of qualitative benefits associated with this proposed rule.

    During the interim period, the rule will:

    • Achieve greater transparency and public accessibility of export and import documentation;

    • Improve the public's ability to acquire information regarding the quantities of U.S. hazardous waste exports and imports;

    • Help monitor proper compliance with EPA's hazardous waste regulations and verify that hazardous waste shipments are properly received and disposed.

    Due to data availability, EPA could not quantify all the benefits, such as human health benefits from increased compliance with the rule. V. State Authorization A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to administer their own hazardous waste programs in lieu of the federal program within the State. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for State authorization are found at 40 CFR part 271. Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that State. The federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities in that State, since only the State was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the State was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized State until the State adopted the federal requirements as State law.

    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized States at the same time that they take effect in unauthorized States. EPA is directed by the statute to implement these requirements and prohibitions in authorized States, including the issuance of permits, until the State is granted authorization to do so. While States must still adopt HSWA related provisions as State law to retain final authorization, EPA implements the HSWA provisions in authorized States until the States do so.

    Authorized States are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized States may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.

    B. Effect on State Authorization

    Because of the federal government's special role in matters of foreign policy, EPA does not authorize States to administer Federal import/export functions in any section of the RCRA hazardous waste regulations. This approach of having Federal, rather than State, administering of the import/export functions promotes national coordination, uniformity and the expeditious transmission of information between the United States and foreign countries.

    Although States do not receive authorization to administer the Federal government's export functions in the previous 40 CFR part 262 subpart E, import functions in the previous 40 CFR part 262 subpart F, import/export functions in the previous or revised 40 CFR part 262 subpart H, or the import/export relation functions in any other section of the RCRA hazardous waste regulations, State programs are still required to adopt the provisions in this rule to maintain their equivalency with the Federal program (see 40 CFR 271.10(e)).

    This proposed rule contains amendments to the revised 40 CFR part 262 subpart H. The rule also contains related amendments to 40 CFR parts 260, 262, 264, 265, and 267, all of which are more stringent.

    The States that have already adopted 40 CFR part 262 subparts E, F and H, 40 CFR parts 263, 264, 265, and any other import/export related regulations, and that will be adopting the revisions in the Hazardous Waste Export-Import Revisions Final Rule, published in the “Rules and Regulations” section of this Federal Register, must adopt the revisions to those provisions in this final rule. But only States that have previously adopted the optional CRT conditional exclusion in 40 CFR 261.39, or the optional exclusions for samples in 40 CFR 261.4(d) and (e) are required to adopt the revisions related to those exclusions in this final rule.

    When a State adopts the import/export provisions in this rule (if final), they must not replace Federal or international references or terms with State references or terms.

    The provisions of this rule, if final, will take effect in all States on the effective date of the rule, since these import and export requirements will be administered by the Federal government as a foreign policy matter, and will not be administered by States.

    VI. Statutory and Executive Order Reviews

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

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

    This proposed rule is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. The EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, titled “Regulatory Impact Analysis: Internet Posting and Confidentiality Determinations for Hazardous Waste Export and Import Documents Proposed Rule,” is available in the docket. Interested persons, including those persons currently importing and exporting hazardous waste, are encouraged to read and comment on the accuracy of the assumptions and the burden estimates presented in this document (e.g., for Web site development, hiring or training of additional staff, including legal counsel or external consultants, to comply with the finalized requirements).

    B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2557.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

    This action proposes that exporters of hazardous waste and receiving facilities of hazardous waste post read-only, publicly accessible, downloadable images of required documents to a single publicly accessible Web site to be developed and maintained by each regulated party.

    Respondents/affected entities: Recycling and disposal facilities who receive imports of hazardous waste and all persons who export or import (or arrange for the export or import) hazardous waste being shipped for either recycling or disposal, SLABs being shipped for reclamation, industrial ethyl alcohol being shipped for reclamation, and hazardous recyclable materials being shipped for precious metal recovery, and hazardous waste samples of more than 25 kilograms being shipped for waste characterization or treatability studies.

    Respondent's obligation to respond: Required per proposed regulations 40 CFR 262.83, 262.84, 264.74, 265.74, and 267.71 under RCRA (42 U.S.C. 6901 et seq., 6905, 6912, 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974).

    Estimated number of respondents: 476.

    Frequency of response: Yearly.

    Total estimated burden: 4452 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $0, includes $0 annualized capital or operation & maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

    Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than December 28, 2016. The EPA will respond to any ICR-related comments in the final rule.

    C. Regulatory Flexibility Act (RFA)

    EPA certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are exporters of hazardous waste and receiving facilities of hazardous waste from foreign sources. The Agency has determined that approximately 22 percent of exporters and approximately 25 percent of facilities receiving hazardous waste from foreign sources, are small entities, generating an average revenue of approximately $41 million and $8 million annually. The cumulative average cost of this proposed action will not exceed one percent of annual revenues for any one entity. Details of this analysis are presented in Section 5.2 of “Regulatory Impact Analysis: Internet Posting and Confidentiality Determinations for Hazardous Waste Export and Import Documents Proposed Rule,” which is available in the docket.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Further, UMRA does not apply to the portions of this action concerning application of OECD import and export procedures because those portions are necessary for the national security or the ratification or implementation of international treaty obligations (i.e., the 1986 OECD Decision-Recommendation and the Amended 2001 OECD Decision).

    E. Executive Order 13132: Federalism

    This action does not have federalism implications because the state and local governments do not administer the export and import requirements under RCRA. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in Executive Order 13175. No exporters, importers or transporters affected by this action are known to be owned by Tribal governments or located within or adjacent to Tribal lands. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The requirements in this action should prevent mismanagement of hazardous wastes in foreign countries and better document proper management of imported hazardous wastes in the United States.

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

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action is designed to increase the accessibility and transparency of documentation of individual hazardous waste import and export shipments.

    K. Executive Order 13659: Streamlining the Export/Import Process for America's Businesses

    Executive Order 13659, titled “Streamlining the Export/Import Process for America's Businesses” (79 FR 10657, February 25, 2014), establishes federal executive policy on improving the technologies, policies, and other controls governing the movement of goods across our national borders. This proposed action strengthens the accessibility and transparency of documentation by requiring public internet posting of confirmation of receipt and confirmation of recovery or disposal of individual export and import shipments of hazardous wastes prior to the future electronic import-export reporting compliance date EPA will establish in a separate Federal Register notice. Thus, this proposed action is consistent with the purpose of Executive Order 13659.

    List of Subjects 40 CFR Part 260

    Environmental protection, CRTs, Exports, Hazardous materials transportation, Hazardous waste, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Transits.

    40 CFR Part 262

    Environmental protection, Hazardous waste, Exports, Imports, Reporting and recordkeeping requirements.

    40 CFR Part 264

    Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.

    40 CFR Part 265

    Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.

    40 CFR Part 267

    Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.

    Dated: October 28, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, title 40, chapter 1 of the Code of Federal Regulations is proposed to be amended as follows.

    PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL 1. The authority citation for part 260 continues to read as follows: Authority:

    42 U.S.C. 6905, 6912(a), 6921-27, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.

    2. Amend § 260.2 by revising paragraph (b) and adding paragraph (d) to read as follows:
    § 260.2 Availability of information; confidentiality of information.

    (b) Except as provided under paragraphs (c) and (d) of this section, any person who submits information to EPA in accordance with parts 260 through 266 and 268 of this chapter may assert a claim of business confidentiality covering part or all of that information by following the procedures set forth in § 2.203(b) of this chapter. Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set forth in part 2, Subpart B, of this chapter.

    (d)(1) After [final rule effective date], no claim of business confidentiality may be asserted by any person with respect to information contained in cathode ray tube export documents prepared, used and submitted under §§ 261.39(a)(5) and 261.41(a) of this chapter, and with respect to information contained in hazardous waste export, import, and transit documents prepared, used and submitted under §§ 262.82(c), 262.83, 262.84, 264.12(a), 264.71(d), 265.12(a), 265.71(d), and 267.71(d), whether submitted to EPA electronically or in paper format.

    (2) EPA will make any cathode ray tube export documents prepared, used and submitted under §§ 261.39(a)(5) and 261.41(a) of this chapter, and any hazardous waste export, import, and transit documents prepared, used and submitted under §§ 262.82(c), 262.83, 262.84, 264.12(a), 264.71(d), 265.12(a), 265.71(d), and 267.71(d) of this chapter available to the public under this section when these electronic or paper documents are considered by EPA to be releasable and final. These submitted electronic and paper documents related to hazardous waste exports, imports and transits and cathode ray tube exports are considered by EPA to be public documents and are considered to be final documents on March 1 of the calendar year after the related cathode ray tube exports or hazardous waste exports, imports, or transits were made.

    PART 262—STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE 3. The authority citation for part 262 continues to read as follows: Authority:

    42 U.S.C 6906, 6912, 6922-6925, 6937, and 6938.

    4. In § 262.83, as amended in a final rule published elsewhere in this issue of the Federal Register and effective December 31, 2016, add paragraph (i)(4) to read as follows:
    § 262.83 Exports of hazardous waste.

    (i) * * *

    (4) Prior to the electronic import-export reporting compliance date, the exporter must post copies of the export confirmations of receipt and confirmations of recovery or disposal that the exporter receives to the exporter's publicly accessible Web site (Export/Import Web site). The exporter's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal received by the exporter during the previous calendar year. Each confirmation must be maintained on the exporter's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.

    5. In § 262.84, as amended in a final rule published elsewhere in this issue of the Federal Register and effective December 31, 2016, add paragraph (h)(5) to read as follows:
    § 262.84 Imports of hazardous waste.

    (h) * * *

    (5) Prior to the electronic import-export reporting compliance date, the receiving facility must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the receiving facility sends to the foreign exporter to the receiving facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.

    PART 264—STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES 6. The authority citation for part 264 continues to read as follows: Authority:

    42 U.S.C. 6905, 6912(a), 6924, and 6925.

    7. Amend 264.74 by adding paragraph (d) to read as follows:
    § 264.74 Availability, retention, and disposition of records.

    (d) Prior to the electronic import-export reporting compliance date, the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the facility sends to the foreign exporter to the facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.

    PART 265—INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES 8. The authority citation for part 265 continues to read as follows: Authority:

    42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.

    9. Amend 265.74 by adding paragraph (d) to read as follows:
    § 265.74 Availability, retention, and disposition of records.

    (d) Prior to the electronic import-export reporting compliance date, the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the facility sends to the foreign exporter to the facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.

    PART 267—STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE FACILITIES OPERATING UNDER A STANDARDIZED PERMIT 9. The authority citation for part 267 continues to read as follows: Authority:

    42 U.S.C. 6902, 6912(a), 6924-6926, and 6930.

    10. Amend § 267.71 by adding paragraph (e) as follows:
    § 267.71 Use of the manifest system.

    (e) Prior to the electronic import-export reporting compliance date, the facility that receives hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the facility sends to the foreign exporter to the facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.

    [FR Doc. 2016-27431 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA-HQ-OPPT-2015-0387; FRL-9945-53] RIN 2070-AK09 Alkylpyrrolidones; Significant New Use Rule AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Under the Toxic Substance Control Act (TSCA), EPA is proposing a significant new use rule (SNUR) for two alkylpyrrolidones: N-ethylpyrrolidone (NEP) and N-isopropylpyrrolidone (NiPP). The proposed significant new uses are any use of NiPP and any use of NEP except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. Persons subject to the SNUR would be required to notify EPA at least 90 days before commencing any manufacturing or processing of the chemical substance for a significant new use. The required notification initiates EPA's evaluation of the conditions of use within the applicable review period. Manufacture and processing for the significant new use is unable to commence until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination.

    DATES:

    Comments must be received on or before January 27, 2017.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0387, 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 Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 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.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Tyler Lloyd, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-4016; email address: [email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    You may be potentially affected by this action if you manufacture, process, or distribute in commerce chemical substances and mixtures. 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:

    • Ship Building and Repairing (NAICS code 336611).

    • Aircraft Manufacturing (NAICS code 336411).

    • Museums (NAICS code 712110).

    • Independent Artists, Writers, and Performers (NAICS code 711510).

    • Reupholster and Furniture Repair (NAICS code 811420).

    • Automotive Body Paint and Interior Repair Maintenance (NAICS code 811121).

    • Flooring Contractors (NAICS code 238330).

    • Painting and Wall Covering Contractors (NAICS code 238320).

    • Adhesive Tape Manufacturing (NAICS code 339113).

    • Adhesive Manufacturing (NAICS code 325520).

    • Denture Adhesive Manufacturing (NAICS code 325620).

    • Basic Chemical Manufacturing (NAICS code 325411).

    • Pharmaceutical and Medicine Manufacturing (NAICS code 32541).

    • Printing Ink Manufacturing (NAICS code 325910).

    • Textile Leather Manufacturing (NAICS code 316998).

    • Textile Manufacturing (NAICS code 325613).

    This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after December 28, 2016 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

    If you have any questions regarding the applicability of this action to a particular entity, consult the technical information contact listed under FOR FURTHER INFORMATION CONTACT.

    B. What Is the Agency's authority for taking this action?

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2) (see Unit IV.). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture (including import) or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA furthermore prohibits such manufacturing or processing from commencing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.

    C. What action is the agency taking?

    EPA is proposing a SNUR for two alkylpyrrolidones: N-ethylpyrrolidone (NEP) and N-isopropylpyrrolidone (NiPP). The proposed significant new uses are any use of NiPP and any use of NEP except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. The proposed significant new uses EPA has identified in this unit are uses that EPA believes are not ongoing at the time of this proposed rule. EPA is requesting public comment on this proposal, and specifically on the Agency's understanding of ongoing uses for the chemicals identified. EPA would welcome specific documentation of any ongoing uses.

    This proposed SNUR would require persons that intend to manufacture (including import) or process any of these chemicals for a significant new use, consistent with the requirements at 40 CFR 721.25, to notify EPA at least 90 days before commencing such manufacture or processing. This proposed SNUR would furthermore preclude the commencement of such manufacturing or processing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination.

    D. Why is the agency taking this action?

    This proposed SNUR is necessary to ensure that EPA receives timely advance notice of any future manufacturing or processing of NEP and NiPP for new uses that may produce changes in human and environmental exposures, and to ensure that an appropriate determination (relevant to the risks of such manufacturing or processing) has been issued prior to the commencement of such manufacturing or processing. Today's action is furthermore necessary to ensure that, in the event that EPA determines: (1) That the significant new use presents an unreasonable risk under the conditions of use (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); (2) that the information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use; (3) that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the substance, or any combination of such activities, may present an unreasonable risk (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA), or (4) that there is sufficient potential for environmental release or human exposure (as defined in TSCA section 5(a)(3)(B)(ii)(II)), then manufacturing or processing for the significant new use cannot proceed until EPA has responded to the circumstances by taking the required actions under sections 5(e) or 5(f) of TSCA.

    The two chemical substances subject to this proposed SNUR are structurally similar to and have similar physical-chemical properties to N-methylpyrrolidone (NMP), which EPA identified for risk evaluation as part of its Work Plan for Chemical Assessment under TSCA. Because of structural and physical-chemical similarity to NMP (Ref. 1, 2), these chemicals are expected to exhibit toxicity similar to NMP. The rationale and objectives for this proposed SNUR are explained in Unit III.

    E. What are the estimated incremental impacts of this action?

    EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and processors of the chemical substances included in this proposed rule. This analysis (Ref. 3), which is available in the docket, is discussed in Unit IX., and is briefly summarized here.

    In the event that a SNUN is submitted, costs are estimated to be less than $8,900 per SNUN submission for large business submitters and $6,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN and the payment of a user fee. The proposed SNUR would require first-time submitters of any TSCA section 5 notice to register their company and key users with the CDX reporting tool, deliver a CDX electronic signature to EPA, and establish and use a Pay.gov E-payment account before they may submit a SNUN, for a cost of approximately $200 per firm. However, these activities are only required of first time submitters of section 5 notices. In addition, for persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country, which is estimated to be approximately $80 per notification.

    II. Chemical Substances Subject to This Proposed Rule A. What chemicals are included in the proposed SNUR?

    This proposed SNUR would apply to two alkylpyrrolidones: NiPP (Chemical Abstract Services Registry Number (CASRN) 3772-26-7) for any use, and to NEP (CASRN 2687-91-4) for any use except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives.

    B. What are the production volumes and uses of NEP and NiPP?

    In order to identify production volumes and uses of NEP and NiPP, EPA reviewed published literature including IHS' Chemical Economics Handbook, National Institute of Health's (NIH) Household Product Database, EPA's Chemical/Product Categorical Data (CPcat) database, the Consumer Product Information Database, the most recent data available from EPA's Chemical Data Reporting (CDR) program, general Google.com searches, Safety Data Sheets (SDSs), European Chemical Agency (ECHA) reports and risk assessments, the Danish Ministry of the Environment Surveys of Chemicals in Consumer Products, and other information from manufacturing company Web sites (Ref. 3). NEP has a wide variety of potential applications as a chemical intermediate in cosmetics, paints and printing inks, paint strippers, pharmaceuticals, adhesives and cleaners for polymeric residue (Ref. 4), in adhesives and reprographic agents (Ref. 5), and as a replacement for NMP in coating and cleaning applications (Ref. 6). Many of these potential uses have not been identified by EPA to occur domestically. Four companies, including domestic manufacturers and importers, reported production of NEP between 1,000,000 to 10,000,000 million pounds to the 2012 CDR database (Ref. 7). The uses reported to CDR for NEP include industrial solvent and reactant uses in pharmaceuticals, paints and coatings, adhesives, textiles, and print ink manufacturing. EPA was able to identify several U.S. products containing NEP including silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. Based on this available product data, EPA believes that the ongoing uses of NEP can be described as “use as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives.”

    There are no known ongoing uses of NiPP as of November 17, 2016, the date of public release/web posting of this proposal.

    C. What are the potential health effects of NEP and NiPP?

    NEP is an organic solvent used as a substitute for NMP because of its similar solvent properties and very similar chemical structure (Ref. 1). NiPP is also a structurally similar analog with physical-chemical properties similar to NMP (Ref. 2). These two chemical substances, like NMP, are pyrrolidones with alkyl groups, but with two or three carbons in the carbon chain on the nitrogen, whereas NMP has a methyl group (one carbon) on the nitrogen. Because of their similar structure and physical-chemical properties, NEP has been shown (Ref. 1) to, and NiPP is expected to, exhibit toxicity similar to NMP.

    EPA has identified developmental effects as a key endpoint of concern from NMP exposure. Specifically, EPA has identified a number of biologically relevant, consistent, and sensitive developmental effects due to exposure to NMP through the oral and dermal routes, including decreased fetal and pup body weight, delayed ossification, skeletal malformations, and increased fetal and pup mortality (Ref. 8, 9, 10).

    Study data are available on NEP and the developmental effects and malformations observed in the animal studies of NEP are similar to those observed in NMP studies (Ref. 1). For example, NEP exposure through oral and dermal routes is associated with adverse effects on fetal body weight, post-implantation loss (specifically late resorptions following oral exposures), and malformations. NEP exposure is also associated with skeletal malformations by oral route and cardiovascular malformation by oral and dermal routes in the animal studies (Ref. 1).

    D. What are the potential routes and sources of exposure to NEP and NiPP?

    NMP is well absorbed following dermal exposures, such as during use of coating, paint stripping or cleaning products (Ref. 11, 12). Since NEP and NiPP are analogs of NMP, these chemical substances are expected to have similar routes of exposure. Dermal exposure and absorption, which includes dermal absorption from the vapor phase, typically contributes significantly to human exposure. Prolonged exposures to neat (i.e., pure) NMP increase the permeability of the skin. NMP is also absorbed via inhalation but the low vapor pressure and mild volatility can limit the amount of NMP available for inhalation.

    Given the similarity of their physical-chemical properties to those of NMP, NEP, and NiPP can be used in ways similar to NMP resulting in potential dermal and inhalation exposures.

    III. Rationale and Objectives A. Rationale

    EPA is concerned about the potential for adverse health effects of NEP and NiPP based on data on the adverse health effects of NEP and because these chemicals are analogs of NMP that have similar physical-chemical properties and are therefore expected to or have been shown to have similar toxicological properties.

    As discussed in Unit II, based on an extensive review of available information, EPA has determined that, at the time of publication of this proposed rule NiPP is not used for any use, and that NEP has ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives (Ref. 3). EPA has concluded that action on these chemical substances is warranted and therefore any manufacturing or processing of NiPP for any use, and manufacture or processing of NEP for any use except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives, would be a significant new use.

    Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use. If a person decides to begin manufacturing or processing any of these chemicals for the use, the notice to EPA allows the Agency to evaluate the use according to the specific parameters and circumstances surrounding the conditions of use.

    B. Objectives

    Based on the considerations in Unit III.A., EPA wants to achieve the following objectives with regard to the significant new use(s) of NEP and NiPP that are designated in this proposed rule:

    1. EPA would receive notice of any person's intent to manufacture or process the chemical substances for the described significant new use before that activity begins.

    2. EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing the chemical substances for the described significant new use.

    3. EPA would be able to either determine that the prospective manufacture or processing is not likely to present an unreasonable risk, or to take necessary regulatory action associated with any other determination, before the described significant new use of the chemical substance occurs.

    IV. Significant New Use Determination

    Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including:

    1. The projected volume of manufacturing and processing of a chemical substance.

    2. The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

    3. The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

    4. The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

    In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.

    To determine what would constitute a significant new use of NEP or NiPP, as discussed in this unit, EPA considered relevant information about the toxicity or expected toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in section 5(a)(2) of TSCA. EPA has preliminarily determined as significant new uses: Any use of NiPP and any use of NEP except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. Because NiPP is not used, and NEP is not currently used except as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives, EPA believes any new use could increase the magnitude and duration of human exposure to these chemical substances. Exposure to NEP or NiPP may lead to adverse developmental health effects.

    V. Applicability of General Provisions

    General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule.

    Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of Premanufacture Notices (PMNs) under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before the manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register, a statement of EPA's finding.

    Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B.

    VI. Applicability of Rule to Uses Occurring Before Effective Date of the Final Rule

    EPA designates November 17, 2016 (the date of public release/web posting of this proposal) as the cutoff date for determining whether the new use is ongoing. This designation varies slightly from EPA's past practice of designating the date of Federal Register publication as the date for making this determination (Ref. 13). The objective of EPA's approach has been to ensure that a person could not defeat a SNUR by initiating a significant new use before the effective date of the final rule. In developing this proposal, EPA has recognized that, given EPA's practice of now posting proposed rules on its Web site a week or more in advance of Federal Register publication, this objective could be thwarted even before that publication. Thus, EPA has slightly modified its approach in this rulemaking and plans to follow this modified approach in future significant new use rulemakings. See the Federal Register of August 24, 2016, (81 FR 57846) (FRL-9951-06), (see page 57848).

    Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of November 17, 2016 would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until all TSCA prerequisites for the commencement of manufacture or processing have been satisfied. Consult the Federal Register document of April 24, 1990 (55 FR 17376) for a more detailed discussion of the cutoff date for ongoing uses.

    VII. Development and Submission of Information

    EPA recognizes that TSCA section 5 does not usually require developing new information (e.g., generating test data) before submission of a SNUN. There is an exception: Development of information is required where the chemical substance subject to the SNUR is also subject to a rule, order, or consent agreement under TSCA section 4 (see TSCA section 5(b)(1)).

    In the absence of a section 4 test rule covering the chemical substance, persons are required to submit only information in their possession or control and to describe any other information known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25, and 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters include information that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacture, processing, use, distribution in commerce, or disposal. EPA encourages persons to consult with the Agency before submitting a SNUN. As part of this optional pre-notice consultation, EPA would discuss specific information it believes may be useful in evaluating a significant new use.

    Submitting a SNUN that does not itself include information sufficient to permit a reasoned evaluation may increase the likelihood that EPA will either respond with a determination that the information available to the Agency is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use or, alternatively, that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance may present an unreasonable risk of injury.

    SNUN submitters should be aware that EPA will be better able to evaluate SNUNs and define the terms of any potentially necessary controls if the submitter provides detailed information on human exposure and environmental releases that may result from the significant new uses of the chemical substance.

    VIII. SNUN Submissions

    EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what information may be useful in evaluating a significant new use. Discussions with the Agency prior to submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the substance. According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 721.25 and 40 CFR 720.40. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

    IX. Economic Analysis A. SNUNs

    EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and processors of the chemical substance included in this proposed rule (Ref. 3). In the event that a SNUN is submitted, costs are estimated at approximately $8,900 per SNUN submission for large business submitters and $6,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN, and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small business with annual sales of less than $40 million when combined with those of the parent company (if any), a reduced user fee of $100 (40 CFR 700.45(b)(1)). EPA's complete economic analysis is available in the public docket for this proposed rule (Ref. 3).

    B. Export Notification

    Under section 12(b) of TSCA and the implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export a chemical substance or mixture for which, among other things, a rule has been proposed or promulgated under TSCA section 5. For persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications (i.e., the number of countries to which the chemical is exported). While EPA is unable to make any estimate of the likely number of export notifications for the chemical covered in this proposed SNUR, as stated in the accompanying economic analysis of this proposed SNUR, the estimated cost of the export notification requirement on a per unit basis is $83.

    X. Alternatives

    Before proposing this SNUR, EPA considered the following alternative regulatory action: Promulgate a TSCA Section 8(a) Reporting Rule.

    Under a TSCA section 8(a) rule, EPA could, among other things, generally require persons to report information to the Agency when they intend to manufacture or process a listed chemical for a specific use or any use. However, for NEP and NiPP, the use of TSCA section 8(a) rather than SNUR authority would have several limitations. First, if EPA were to require reporting under TSCA section 8(a) instead of TSCA section 5(a), that action would not ensure that EPA receives timely advance notice of any future manufacturing or processing of NEP and NiPP for new uses that may produce changes in human and environmental exposures. Nor would it ensure that an appropriate determination (relevant to the risks of such manufacturing or processing) has been issued prior to the commencement of such manufacturing or processing. Furthermore, a TSCA section 8(a) rule would not ensure that, in the event that EPA determines: (1) That the significant new use presents an unreasonable risk under the conditions of use (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); (2) that the information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use; (3) that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the substance, or any combination of such activities, may present an unreasonable risk (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA), or (4) that there is sufficient potential for environmental release or human exposure (as defined in TSCA section 5(a)(3)(B)(ii)(II)), then manufacturing or processing for the significant new use cannot proceed until EPA has responded to the circumstances by taking the required actions under sections 5(e) or 5(f) of TSCA.

    In addition, EPA may not receive important information from small businesses, because such firms generally are exempt from TSCA section 8(a) reporting requirements (see TSCA sections 8(a)(1)(A) and 8(a)(1)(B)). In view of the level of health concerns about NEP and NiPP if used for a proposed significant new use, EPA believes that a TSCA section 8(a) rule for this substance would not meet EPA's regulatory objectives.

    XI. Scientific Standards, Evidence, and Available Information

    EPA has used scientific information, technical procedures, measures, methods, protocols, methodologies, and models consistent with the best available science, as applicable. These information sources supply information relevant to whether a particular use would be a significant new use, based on relevant factors including those listed under TSCA section 5(a)(2). As noted in Unit III, EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use.

    The clarity and completeness of the data, assumptions, methods, quality assurance, and analyses employed in EPA's decision are documented, as applicable and to the extent necessary for purposes of this proposed significant new use rule, in Unit II and in the references noted above. EPA recognizes, based on the available information, that there is variability and uncertainty in whether any particular significant new use would actually present an unreasonable risk. For precisely this reason, it is appropriate to secure a future notice and review process for these uses, at such time as they are known more definitely. The extent to which the various information, procedures, measures, methods, protocols, methodologies or models used in EPA's decision have been subject to independent verification or peer review is adequate to justify their use, collectively, in the record for a significant new use rule

    XII. Request for Comment A. Do you have comments or information about ongoing uses?

    EPA welcomes comment on all aspects of this proposed rule. EPA based its understanding of the use profile of these chemicals on the published literature, the 2012 Chemical Data Reporting submissions, market research, and review of Safety Data Sheets. To confirm EPA's understanding, the Agency is requesting public comment on all aspects of this proposed rule, including EPA's understanding that NiPP is not currently used, and NEP is not used except as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. In providing comments on an ongoing use of NEP and NiPP, it would be helpful if you provide sufficient information for EPA to substantiate any assertions of use. EPA does not have specific information on the concentration by weight of NEP currently being used in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. If this information were available, EPA could better characterize the use. As such, EPA requests comment on the concentration by weight of NEP currently being used in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. It is EPA's policy to include all comments received in the public docket without change or further notice to the commenter and to make the comments available on-line at www.regulations.gov, including any personal information provided, unless a comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM that you mail to EPA as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2, subpart B.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www2.epa.gov/dockets/commenting-epa-dockets#tips.

    XIII. References

    The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

    1. ECHA, Committee for Risk Assessment. Annex 1 Background document to the Opinion proposing harmonised classification and labelling at Community level of N-ethyl-2-pyrrolidone (NEP). ECHA/RAC/CLH-O-0000002192-83-01/A1. 2011.

    2. Vandeputte, Bart; Moonen, Kristof; and Roose, Peter. Use of improved N-alkyl pyrrolidone solvents. Google Patents. Publication Number: US20150057375 A1. Filing Date: January 17, 2013. Publication Date: February 26, 2015. Available at http://www.google.com/patents/WO2013107822A1?cl=en.

    3. EPA. Economic Analysis of the Proposed Significant New Use Rule for Alkylpyrrolidones. March 31, 2016.

    4. BASF. N-Ethylpyrrolidone-2 (NEP) Technical Data Sheet. July 2009. Available at http://worldaccount.basf.com/wa/NAFTA~es_MX/Catalog/ChemicalsNAFTA/doc4/BASF/PRD/30036616/.pdf?urn=urn:documentum:eCommerce_sol_EU:09007bb280065a74.pdf.

    5. EPA. Chemical and Product Categories (CPCat) Database. Accessed September 2015. Available at http://actor.epa.gov/cpcat/faces/home.xhtml.

    6. BASF Corp Germany. N-Ethylpyrrolidone. Accessed August 2016. Available at https://www.standort-ludwigshafen.basf.de/group/corporate/site-ludwigshafen/en/brand/N_ETHYLPYRROLIDONE.

    7. EPA. Downloadable of the Non-Confidential Chemical Reporting Data (CDR) Database. Downloaded July 2014.

    8. Sitarek, K., J. Stekiewicz, and W. Wasowicz. 2012. Evaluation of Reproductive Disorders in Female Rats Exposed to N-Methyl-2-Pyrrolidone. Birth Defects Research (Part B), 95, 195-201.

    9. Saillenfait, A. M., F. Gallissot, I. Langonne, and J. P. Sabate. 2002. Developmental Toxicity of NMethyl-2-Pyrrolidone Administered Orally to Rats. Food Chemistry and Toxicology, 40(11), 1705-1712.

    10. Hass, U., S. P. Lund, and J. Elsner. 1994. Effects of Prenatal Exposure to N-Methylpyrrolidone on Postnatal Development and Behavior in Rats. Neurotoxicology and Teratology, 16(3), 241-249.

    11. Bader, M., R. Wrbitzky, M. Blaszkewicz, M. Schaper, and C. van Thriel. 2008. Human Volunteer Study on the Inhalational and Dermal Absorption of N-Methyl-2-Pyrrolidone (NMP) from the Vapour Phase. Archives of Toxicology, 82(1), 13-20.

    12. Keener, S., R. Wrbitzky, and M. Bader. 2007. Human Volunteer Study on the Influence of Exposure Dilution of Dermally Applied N-Methyl-2-Pyrrolidone (NMP) on the Urinary Elimination of NMP Metabolites. International Archives of Occupational and Environmental Health, 80(4), 327-334.

    13. EPA. Significant New Uses of Certain Chemical Substances; Final Rule. RIVM, 2013). Federal Register (April 24, 1990, 55 FR 17376) (FRL-3658-5).

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

    This proposed SNUR is not a “significant regulatory action” and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA, 44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). The information collection activities associated with existing chemical SNURs are already approved under OMB control number 2070-0038 (EPA ICR No. 1188); and the information collection activities associated with export notifications are already approved under OMB control number 2070-0030 (EPA ICR No. 0795). If an entity were to submit a SNUN to the Agency, the annual burden is estimated to be less than 100 hours per response, and the estimated burden for export notifications is less than 1.5 hours per notification. In both cases, burden is estimated to be reduced for submitters who have already registered to use the electronic submission system.

    An agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in Title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR, part 9, and included on the related collection instrument, or form, as applicable.

    C. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I certify that promulgation of this SNUR would not have a significant economic impact on a substantial number of small entities. The rationale supporting this conclusion is as follows.

    A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the rule as a “significant new use.” By definition of the word “new” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. Since this SNUR will require a person who intends to engage in such activity in the future to first notify EPA by submitting a SNUN, no economic impact will occur unless someone files a SNUN to pursue a significant new use in the future or forgoes profits by avoiding or delaying the significant new use. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemical substances, the Agency receives only a handful of notices per year. During the six year period from 2005-2010, only three submitters self-identified as small in their SNUN submission (Ref. 3). EPA believes the cost of submitting a SNUN is relatively small compared to the cost of developing and marketing a chemical new to a firm or marketing a new use of the chemical and that the requirement to submit a SNUN generally does not have a significant economic impact.

    Therefore, EPA believes that the potential economic impact of complying with this proposed SNUR is not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published as a final rule on August 8, 1997 (62 FR 42690) (FRL-5735-4), the Agency presented its general determination that proposed and final SNURs are not expected to have a significant economic impact on a substantial number of small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, the requirements of sections 202, 203, 204, or 205 of UMRA, 2 U.S.C. 1531-1538, do not apply to this action.

    E. Executive Order 13132: Federalism

    This action will not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have any effect on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this action does not address environmental health or safety risks, and EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order.

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

    This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have any effect on energy supply, distribution, or use.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve any technical standards, and is therefore not subject to considerations under section 12(d) of NTTAA, 15 U.S.C.272 note.

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

    This action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not affect the level of protection provided to human health or the environment.

    List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.

    Dated: November 14, 2016. Jeffery T. Morris, Acting Director, Office of Pollution Prevention and Toxics.

    Therefore, it is proposed that 40 CFR chapter I be amended as follows:

    PART 721—[AMENDED] 1. The authority citation for part 721 continues to read as follows: Authority:

    15 U.S.C. 2604, 2607, and 2625(c).

    2. Add § 721.10925 to subpart E to read as follows:
    § 721.10925 Alkylpyrrolidones.

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substances N-ethylpyrrolidone (CASRN 2687-91-4) and N-isopropylpyrrolidone (CASRN 3772-26-7) are subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) For N-ethylpyrrolidone (CASRN 2687-91-4), any use except for use as reactant and in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives.

    (ii) For N-isopropylpyrrolidone (CASRN 3772-26-7), any use.

    (b) [Reserved]

    [FR Doc. 2016-28565 Filed 11-25-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 575 [NHTSA-2015-0096] RIN 2127-AL33 Vehicle Defect Reporting Requirements AGENCY:

    National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    NHTSA is proposing to require placing a label on the passenger side sun visor of light-duty vehicles that provides information about how to submit a safety-related motor vehicle defect complaint to NHTSA. This rulemaking also proposes updating the required information in 49 CFR 575.6 for defect reporting information in owner's manuals through the addition of the text developed for this proposal. This proposal responds to the mandate in the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21) that manufacturers be required to affix, in the glove compartment or in another readily accessible location on the vehicle, a sticker, decal, or other device that provides, in simple and understandable language, information about how to submit a safety-related motor vehicle defect complaint to NHTSA; and prominently print the information described above within the owner's manual.

    DATES:

    Comments must be received on or before January 27, 2017. See the SUPPLEMENTARY INFORMATION section on “Public Participation” for more information about written comments.

    ADDRESSES:

    You may submit your comments, identified by Docket ID No. NHTSA-2015-0096, by any of the following methods:

    http://www.regulations.gov: Follow the online instructions for submitting comments.

    Fax: NHTSA: (202) 493-2251.

    Mail:

    ○ Docket Management Facility, M-30, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Rm. W12-140, Washington, DC 20590, Attention Docket ID No. NHTSA-2015-0096.

    Hand Delivery:

    ○ Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Rm. W12-140, Washington, DC 20590, Attention Docket ID No. NHTSA-2015-0096 between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except federal holidays.

    Instructions: Regardless of how you submit comments, you should mention Docket ID No. NHTSA-2015-0096 or the Regulatory Identification Number (RIN) for this rulemaking. You may call the Docket Management Facility at 202-366-9826. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted, except as noted below, without change to http://www.regulations.gov, including any personal information provided.

    Docket: All documents in the dockets are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Docket Management Facility, M-30, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Rm. W12-140, Washington, DC 20590. The Docket Management Facility is open between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except federal holidays.

    Privacy Act: Anyone is able to search the electronic form of all comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://www.dot.gov/privacy.html.

    FOR FURTHER INFORMATION CONTACT:

    For technical issues: Hisham Mohamed, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-0307.

    For legal issues: Ryan Hagen, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-2992.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Statutory Mandate III. Background IV. Alternatives Considered and Proposed for the Label V. Alternatives Considered and Proposed for the Owner's Manual Information VI. Costs VII. Benefits VIII. Enforcement and Compliance IX. Proposed Compliance Date X. Public Participation XI. Regulatory Notices and Analyses XII. Proposed Regulatory Text I. Executive Summary

    This rulemaking proposes to require placing a sticker, decal, or other device that provides, in simple and understandable language, information about how to submit a safety-related motor vehicle defect complaint to NHTSA on the passenger side sun visor. The agency believes that the sun visor is not only the most accessible of the locations considered, but also it is the most prominent location, which would allow for the most informational benefit to consumers. This rulemaking also proposes updating the defect reporting information manufactures are required to include in owner's manuals. This rulemaking proposes to move the requirement to a different section of the CFR.

    The benefits of the proposed rule, although not quantifiable, are anticipated to include: (1) improved messaging and information to consumers on how to submit a safety-related motor vehicle defect complaint to NHTSA; (2) increased consumer involvement in the motor vehicle defect reporting process; (3) reduced time between consumer awareness of a possible motor vehicle defect and industry response; (4) cost savings to the consumer through improved and timely defect-related response by the manufacturer; (5) reduction in the risk and incidence of injuries and fatalities attendant with the possible safety-related motor vehicle defect; (6) decreased motor vehicle property damage; (7) improvement in agency data-collection on potential safety problems in motor vehicles and motor vehicle equipment, and resultant decisions on whether to open an investigation; and, (8) cost savings to the industry by providing motor vehicle manufacturers with information that they may not yet have identified and gathered. While NHTSA believes that the benefits of this proposed rule would outweigh the costs, NHTSA notes that this rulemaking is required by statute and the agency is not required to determine that it is cost-beneficial.

    II. Statutory Mandate

    The Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21) 1 requires that NHTSA develop a rule to provide consumers with information, in simple and understandable language, on how to submit a safety-related motor vehicle defect complaint to NHTSA. This information is to be placed on a sticker, decal or other device affixed to each new vehicle and printed within the owner's manual.

    1 Public Law 112-141.

    Section 31306 of MAP-21 amended section 32302(d) of Chapter 323, Title 49, of the United States Code (U.S.C.). Chapter 323 codifies consumer information requirements initially established by the Motor Vehicle Information and Cost Savings Act of 1972 (Pub. L. 92-513). Section 31306 of MAP-21 requires that NHTSA develop a rulemaking to require passenger motor vehicle manufacturers (1) to affix, in the glove compartment or in another readily accessible location on the vehicle, a sticker, decal, or other device that provides, in simple and understandable language, information about how to submit a safety-related motor vehicle defect complaint to NHTSA; and (2) to prominently print the information described above by placing the text in Bold letters within the owner's manual. Section 31306 specifies that the above information must not be placed on the label required under section 3 of the Automobile Information Disclosure Act (15 U.S.C. 1232).

    The agency has interpreted Section 31306 as directing DOT (by delegation, NHTSA) to determine a readily accessible location in a passenger motor vehicle for the required information to be affixed (considering the glove compartment as one option), and to ensure that the information is conveyed in simple and understandable language via a sticker, decal, or other device. NHTSA believes that the determinations of whether to require (1) a particular location for the sticker, decal, or other device, (2) specified language to be used by all manufacturers, or (3) a particular location for the information in the owner's manual, are left to the agency's discretion. We have interpreted the terms “sticker, decal, or other device,” to be various forms of the term “label.” Thus, we use the term “label” throughout this proposal to refer to the various ways a manufacturer could place the required information on the vehicle. We believe this could be fulfilled either through an adhesive method, such as a label generally refers to, or through a printing method, where text would be directly applied to a surface.

    This rulemaking satisfies this mandate by proposing to require manufacturers to place a label on the passenger side sun visor that provides concise information on how to submit a safety-related defect complaint to NHTSA. This rulemaking also proposes to require manufacturers to print the same information in the owner's manual.

    III. Background

    Motor vehicle safety is defined as “the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes non-operational safety of a motor vehicle.” 2 A defect includes “any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.” 3 Generally, a safety defect is defined as a problem that exists in a motor vehicle or item of motor vehicle equipment that poses an unreasonable risk to motor vehicle safety, and may exist in a group of vehicles of the same design or manufacture, or items of equipment of the same type and manufacture.

    2 49 U.S.C. 30101(a)(8).

    3 49 U.S.C. 30101(a)(2).

    The National Traffic and Motor Vehicle Safety Act of 1966 4 (the Vehicle Safety Act) granted NHTSA the authority to investigate defects and to determine whether a defect exists. If a safety defect is discovered, the manufacturer must notify NHTSA, as well as vehicle or equipment owners, dealers, and distributors. If NHTSA determines that a defect creates an unreasonable safety risk, the agency may require a manufacturer to notify consumers, remedy a defect or issue a recall.5 6 The manufacturer is then required to remedy the problem at no charge to the owner. NHTSA monitors the manufacturer's corrective action to ensure successful completion of the recall campaign. Since the passage of the Vehicle Safety Act,7 605 million cars, trucks, buses, recreational vehicles, motorcycles, and mopeds, as well as nearly 59 million tires, 91 million items of motor vehicle equipment, and 60 million child safety seats have been recalled to correct safety defects.8

    4 Codified at 15 U.S.C. 1381 et seq. and recodified in 1994 as Chapter 30, Title 49, of the United States Code.

    5 A manufacturer of a motor vehicle or motor vehicle equipment is required by 49 U.S.C. 30118(c) to notify the Secretary by certified mail, and the owners, purchasers, and dealers of the vehicle or equipment as provided in section 30119(d) of this section, if the manufacturer—

    (1) learns the vehicle or equipment contains a defect and decides in good faith that the defect is related to motor vehicle safety; or

    (2) decides in good faith that the vehicle or equipment does not comply with an applicable motor vehicle safety standard prescribed under this chapter.

    Section 30119(d) provides notification procedures. Section 30120(a) of 49 U.S.C. provides that when notification is required under section 30118(c), the remedy shall be without charge when the vehicle or equipment is presented for remedy. NHTSA regulations at 49 CFR part 573 “Defects and noncompliance responsibility and reports,” and Part 577 “Defects and noncompliance notification” implement these statutory requirements.

    Pursuant to 49 U.S.C. 30165, a manufacturer who violates any of the above-mentioned statutory or regulatory provisions is liable to the Government for a civil penalty. Until 1997 the maximum civil penalty was $1,000 per violation up to a maximum of $800,000 for a related series of violations. By a separate statutorily mandated regulation, since 1997 NHTSA has adjusted the § 30165 civil penalties upward for inflation. 49 CFR part 578. The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, (Pub. L. 106-414), enacted in 2000 in light of the Firestone/Ford controversy, amended the Safety Act by, inter alia, raising those maximum civil penalties to $5,000 per violation and $15,000,000 for a related series of violations, and added criminal penalties (49 U.S.C. 30170) for violations of reporting requirements. MAP-21, enacted in 2012, increased the maximum civil penalty for a related series of violations to $35,000,000. The Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94 (Dec. 4, 2015), increased maximum civil penalties to $21,000 per violation and $105,000,000 for a related series of violations. The increases in maximum civil penalties in the FAST Act become effective on the date on which the Secretary of Transportation certifies that NHTSA has completed a rulemaking to provide an interpretation of the penalty factors in 49 U.S.C. 30165. The higher civil penalty maximums in the Part 578, MAP-21, and the FAST Act amendments are not retroactive to violations that occurred before their enactments.

    6 Under the 1974 amendments to the Motor Vehicle Safety Act, Congress gave NHTSA broad new power to enforce recall decisions. These included new reporting requirements, increased penalties for noncompliance, and subpoena and plant inspection authority.

    7 During the period 1966 to 2014.

    8 2014 Recall Annual Report—NHTSA. See report at http://www.safercar.gov/staticfiles/safercar/pdf/2014-annual-recalls-report.pdf (last accessed September 18, 2015). This data includes recalls that take place because the vehicles and equipment do not meet the requirements of applicable safety standards set by NHTSA. Manufacturers voluntarily initiate most recalls.

    To obtain information about potential safety defects in vehicles and equipment, NHTSA's Office of Defects Investigation (ODI) receives data from a variety of sources including vehicle and equipment manufacturers, dealers, and consumer advocacy groups and forums. However, ODI relies heavily on information received from consumers who experience issues with their vehicles and equipment. ODI receives, on average, between 40,000 and 50,000 complaints from consumers each year.

    If a consumer thinks that his/her vehicle or equipment may have a safety-related defect, reporting it to NHTSA is an important first step to take to get the situation remedied and help make the nation's roads safer. If the agency receives similar reports from a number of consumers about the same product, this could indicate that a safety-related defect exists that could warrant the opening of an investigation. However, an analysis of one complaint may also lead to an investigation depending on the type of defect that is reported. In order to make it convenient for consumers to report any suspected safety-related defects to NHTSA, the agency offers three ways to file such complaints.

    Vehicle Safety Hotline

    NHTSA operates the United States Department of Transportation's Vehicle Safety Hotline telephone service to collect accurate and timely information from consumers on vehicle safety problems. Consumers can call 1-888-327-4236 or 1-800-424-9393 toll-free from anywhere in the United States, Puerto Rico, and the Virgin Islands to register complaints or receive recall information about a vehicle. The Hotline also has Spanish-speaking representatives and offers a dedicated number, 1-800-424-9153, for use by persons with hearing impairments.

    When a consumer calls the Hotline to report a vehicle-related safety issue, the consumer is asked to provide certain critical information that NHTSA technical staff needs to evaluate the problem.9 The information that the consumer provides is filed on a Vehicle Owner's Questionnaire (VOQ) form, entered into the agency's consumer-complaint database, and forwarded to NHTSA technical staff for evaluation. VOQs filed through the Hotline are mailed to consumers for verification of data. In addition, consumers receive an explanation of how their questionnaire will be used. NHTSA may provide information from the questionnaire to the vehicle manufacturer.

    9 The Privacy Act of 1974—Public Law 93-579, As Amended: This information is requested pursuant to the authority vested in the National Highway Traffic Safety Act and subsequent amendments. Consumers are under no obligation to respond to this questionnaire. Consumer response may be used to assist NHTSA in determining whether a manufacturer should take appropriate action to correct a safety defect. If NHTSA proceeds with administration enforcement or litigation against a manufacturer, consumer response, or statistical summary thereof, may be used in support of the agency's action.

    Safercar.gov

    Consumers can also report a vehicle safety issue to NHTSA online at its vehicle safety Web site: www.safercar.gov. The consumer can select “Report Safety Problems” within the Vehicle Owners section of the home page. The information that a consumer submits via the Web site is recorded in VOQ format, entered into NHTSA's consumer complaint database, and provided to NHTSA technical staff for evaluation. NHTSA may provide information from the questionnaire to the vehicle manufacturer.

    U.S. Mail

    A consumer can also report a defect by sending a letter to the agency via U.S. mail.

    SaferCar Mobile Application

    In March 2013, NHTSA launched its SaferCar mobile application that allows consumers to access important vehicle safety information from their mobile devices.10 To report a safety complaint to NHTSA through the SaferCar mobile application, a consumer who has a smart phone or a tablet can download the SaferCar application for free, scan in their vehicle identification number, and follow instructions to submit their complaint. The information collected through this mobile application is similar to that which is collected online at SaferCar.gov.

    10 The current SaferCar mobile application is available for the iOS and Android mobile operating systems.

    Manufacturers are currently required to include the following text in all passenger vehicle owner's manuals: 11

    11 49 CFR 575.6.

    If you believe that your vehicle has a defect which could cause a crash or could cause injury or death, you should immediately inform the National Highway Traffic Safety Administration (NHTSA) in addition to notifying [INSERT NAME OF MANUFACTURER].

    If NHTSA receives similar complaints, it may open an investigation, and if it finds that a safety defect exists in a group of vehicles, it may order a recall and remedy campaign. However, NHTSA cannot become involved in individual problems between you, your dealer, or [INSERT NAME OF MANUFACTURER].

    To contact NHTSA, you may call the Vehicle Safety Hotline toll-free at 1-888-327-4236 (TTY: 1-800-424-9153); go to http://www.safercar.gov; or write to: Administrator, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. You can also obtain other information about motor vehicle safety from http://www.safercar.gov.

    NHTSA notes that this required text uses an outdated mailing address. The correct mailing address is: U.S. Department of Transportation, National Highway Traffic Safety Administration, Office of Defects Investigation (NEF-100), 1200 New Jersey Avenue SE., Washington, DC 20590.

    The currently required text also does not advise vehicle users of the ability to file a complaint on the safercar.org Web site, or through the new safercar.gov mobile application.

    IV. Alternatives Considered and Proposed for the Label

    NHTSA first considered whether to require a particular location for the label containing defect reporting language, or whether to leave the location up to the manufacturer's discretion. Section 31306 does not specify whether the determination of location is to be made by the agency or the manufacturer. NHTSA acknowledges that differing vehicles designs may mean that the most accessible location for a label in a particular vehicle also differs. We also considered that there may be benefits to providing flexibility to manufacturers by allowing them to make the location determination. The agency believes that increased compliance flexibility often has the potential to lower costs while preserving manufacturer ability to design to consumer preferences. In this case, however, the benefits to increased manufacturer flexibility are believed to be minimal. The base estimated costs of implementing this proposal are believed to be low, and the agency does not believe that additional flexibility would be able to provide any significant further cost savings. In addition, the purpose of requiring such a label is to ensure that consumers encounter the information; to the extent that a manufacturer seeks to “blend” the label into preexisting vehicle designs, we believe this may detract from the purpose of the requirement.

    On the other hand, we believe a standardized location for defect reporting information would best further the purpose of Section 31306 by increasing the accessibility of the information through repeat consumer exposure and expectations. We anticipate that once the consumer has encountered the information in a particular vehicle location, he or she would be more likely to associate the information with the location and be able to access it again at a point when it is sought (such as after a safety incident has occurred or a defect suspected). Therefore, we are proposing to require a particular location for placement of the language by all manufacturers.

    NHTSA identified five locations on a vehicle where the placement of a label is likely to be practicable and the information displayed likely to be accessible to a consumer. The five options thus considered in this proposal are: (1) the passenger's sun visor; (2) the glove compartment; (3) the edge of the driver's door; (4) the driver's side B-pillar, and (5) the headliner above the sun visor. Section 31306 of MAP-21 (“. . . affix, in the glove compartment or in another readily accessible location on the vehicle . . .”) appears to suggest that the glove compartment may be the best location for the label, however, the selection of the location is left to the agency's discretion.

    Merriam-Webster dictionary defines “accessible” as “capable of being reached, easy to communicate, capable of being influenced, capable of being used or seen, or capable of being understood or appreciated.” 12 NHTSA notes that while Section 31306 does not mandate that the required location be determined to be the most accessible of all the options, Congress appears to have given the accessibility of the information the highest priority of potential factors. The agency notes that in the context of placing displays of information, the prominence of the placement directly influences the degree to which the information can be seen, and thus the degree to which the language can communicate and be understood. Prominence is thus an important element of accessibility when considering where to put a label. Therefore, NHTSA first focused its analysis on which prominent locations inside the vehicle could display information that would then be highly accessible to (i.e., reachable by) vehicle users.

    12 Merriam-Webster Online—http://www.merriam-webster.com/dictionary/accessible (last accessed January 23, 2013).

    First, NHTSA considered the glove compartment for prominence and accessibility, as this location was specifically suggested by Congress. We believe this location may have been suggested because of the common practice of storing documents such as the vehicle owner's manual, registration, and insurance information, which a driver is likely to reference in the event of an accident or problem with the vehicle. In addition, glove compartments face the vehicle occupants and are generally within a few feet of eye level, which may make information displayed within one more prominent than it would be in locations that are behind or to side of occupants, or further from eye level.

    However, the agency believes that the variety in current designs of glove compartments may impact the degree of accessibility and prominence of information displayed within them. For example, we are aware of some designs that open on a simple hinge, similar to an envelope drop box, and others that open on a hinge that drops the compartment down below the dashboard. After consideration of the surface areas available for placement of a label within different glove compartment designs, we are concerned the variation in designs may make placement of a label inside the glove compartment more visible on some vehicles than others. Not all glove compartments appear to offer a prominent surface area on which to place a label with detailed reporting information. Additionally, we believe that consistency in visibility of the label across model types may make it more accessible and prominent to consumers through their past associations with labels in other vehicles.

    Next, NHTSA considered the passenger's side sun visor. This location was considered accessible and prominent, as it is situated in front of vehicle occupants not far from eye level. The suitability of this location for labels has previously been leveraged by the agency for both air bag labels and vehicle rollover labels.

    The air bag label, established under FMVSS 208 (Occupant Crash Protection), requires manufacturers to affix an air bag warning label to the sun visor at each seating position that is equipped with an inflatable restraint.13 49 CFR part 575.105 (Vehicle Rollover) also requires that a rollover warning label be affixed at the driver's sun visor for utility vehicles.14 The rollover warning label may appear on either side of the visor, but if it appears on the same side as the air bag label, it must be separated from the air bag label by a certain distance. The air bag label may be affixed to either side of the sun visor. FMVSS 208 also specifies that no other information may appear on the same side of the sun visor to which the air bag warning label is affixed, except for the utility vehicle warning label, and no other information about the air bags or the need to wear seat belts may appear anywhere on sun visors.15

    13 § 571.208, Standard No. 208; Occupant crash protection.

    S4.5.1(b) Sun visor air bag warning label. (1) Except as provided in S4.5.1(b)(2), each vehicle shall have a label permanently affixed to either side of the sun visor, at the manufacturer's option, at each front outboard seating position that is equipped with an inflatable restraint.

    14 § 575.105 Vehicle rollover.

    c) Definitions. Utility vehicles means multipurpose passenger vehicles (other than those which are passenger car derivatives) which have a wheelbase of 110 inches or less and special features for occasional off-road operation.

    15 § 571.208.

    S4.5.1(b)(5) Limitations on additional labels. (i) Except for the information on an air bag maintenance label placed on the sun visor pursuant to S4.5.1(a) of this standard, or on a utility vehicle warning label placed on the sun visor that conforms in content, form, and sequence to the label shown in Figure 1 of 49 CFR 575.105, no other information shall appear on the same side of the sun visor to which the sun visor air bag warning label is affixed.

    (ii) Except for the information in an air bag alert label placed on the sun visor pursuant to S4.5.1(c) of this standard, or on a utility vehicle warning label placed on the sun visor that conforms in content, form, and sequence to the label shown in Figure 1 of 49 CFR 575.105, no other information about air bags or the need to wear seat belts shall appear anywhere on the sun visor.

    NHTSA considered that the label for information on how to contact NHTSA with a vehicle safety defect complaint could be affixed on the passenger's sun visor on the opposite side from the air bag warning label, which would allow for sufficient separation of the two labels. As each label would contain concise information, we believe that such separation from the pictogram of the air bag label would be sufficient to ensure that both labels display information prominently. We note that a similar setup exists on the driver side sun visor of utility vehicles, which bears either the air bag label on one side and the rollover warning label on the other side of the visor, or both labels on the same side. The agency is not aware of any negative impacts from the placement of two labels on one visor on those vehicles.

    NHTSA next considered the driver's side b-pillar or edge of the driver's door. In its tire safety information final rule,16 the agency agreed with manufacturers that there is a concern about the sufficiency of the space for the placement of the vehicle placard and tire inflation label in the door edge or B-pillar for some vehicles. As a result, in that rule, NHTSA added other alternative requirements to the requirement that the vehicle placard and tire inflation pressure label be located on the driver's side B-pillar.17 The agency remains concerned that the relatively limited space in these locations, combined with design variations, may detract from the prominence of a label with detailed reporting information. We also believe that the current vehicle placard and tire inflation pressure label are relatively technically specific, and by adding another label may crowd the messaging on how to reach NHTSA with a potential vehicle safety complaint.

    16 67 FR 69600, at 69617-69618.

    17Id. at 69617.

    Finally, NHTSA considered the headliner above the sun visor. Like the sun visor, the headliner is a relatively accessible and prominent location, being in front of the vehicle occupants and not far from eye level. A label on either the headliner or the “back” side of the visor would only be visible when the visor was in the “open” (not stowed) position. As the headliner currently does not contain labels, a potential benefit to using this space for the defect label would be to avoid any confusion or crowding of information.18 The ability to require the label on the driver's side headliner, as opposed to the passenger's side sun visor may carry additional accessibility benefits by bringing the information closer to the driver, who is more likely to need or use the information.

    18 Related, the headliner may provide for more consistency in label placement if manufacturers frequently vary whether to place the air bag label on the front or back side of the label. However, NHTSA believes that the variation in air bag label placement is likely due to manufacturer desire to limit the label visibility to when the visor is in the open position, and requiring a label on each side of the visor would make that concern irrelevant.

    However, a label on the back side of the visor would appear closer to eye level when the visor was in the open position. NHTSA is also concerned that the potential use of the driver's side headliner may introduce a crowding issue in utility vehicles, which would now have three informational labels in the same area on the driver's side (this could defeat any spacing benefit assumed for avoiding the use of the sun visor). In addition, the use of the visor for existing label requirements may make it more likely that a vehicle occupant would associate the visor with vehicle safety-related reference information and thus check it in the event of a safety problem. For these reasons, the agency believes a label on the headliner may be less prominent than one on the visor itself.

    For the above reasons, of the five locations considered, the agency's preferred alternative for placement of the sticker, decal, or other device is the passenger side sun visor. The agency also recognizes that the headliner above the sun visor may have similar benefits to the visor without some of the disadvantages of the visor. Therefore, the headliner is currently considered a close second to the preferred alternative.

    NHTSA invites comments on whether the passenger side sun visor is indeed the best easily accessible location for a label, as well as whether the agency should have considered additional locations within the vehicle. Commenters should provide detail on which location is best and why. If additional locations are suggested, commenters are requested to provide information on the accessibility, prominence, and practicability of the suggested location. NHTSA also invites comments on whether its assumptions and assessment of the preferred location are reasonable. Commenters are requested to provide supporting information for their suggestions.

    Specified Language

    NHTSA also considered whether to require specified language to be printed on the label, or whether to leave the choice of language up to the vehicle manufacturer. Section 31306 of MAP-21 does not specify whether the choice of actual content is to be made by the agency or by the manufacturer. Given that information on how to submit a safety-related defect complaint is relatively straightforward, and does not vary by vehicle type or design, we do not see a benefit to leaving the choice of language up to the manufacturer. Conversely, we believe that requiring standardized language could prevent confusion or inaccuracies that customized language could produce. Further, standardized language may have the benefit of creating a phrase association for vehicle users that could help them remember which agency to contact with a safety-related concern whether or not they remember where the contact information is located within their vehicle. For these reasons, NHTSA is proposing standardized language for the decal, label, or other device.

    Next, NHTSA considered proposed content for the labels. Information on how to reach NHTSA with potential vehicle safety defect complaints is currently written in all passenger vehicle owner's manuals. Manufacturers are currently required to include the following text in all passenger vehicle owner's manuals: 19

    19 49 CFR 575.6.

    If you believe that your vehicle has a defect which could cause a crash or could cause injury or death, you should immediately inform the National Highway Traffic Safety Administration (NHTSA) in addition to notifying [INSERT NAME OF MANUFACTURER].

    If NHTSA receives similar complaints, it may open an investigation, and if it finds that a safety defect exists in a group of vehicles, it may order a recall and remedy campaign. However, NHTSA cannot become involved in individual problems between you, your dealer, or [INSERT NAME OF MANUFACTURER].

    To contact NHTSA, you may call the Vehicle Safety Hotline toll-free at 1-888-327-4236 (TTY: 1-800-424-9153); go to http://www.safercar.gov; or write to: Administrator, NHTSA, 400 Seventh Street SW., Washington, DC 20590. You can also obtain other information about motor vehicle safety from http://www.safercar.gov.

    Section 31306 of MAP-21 states that the label information must be “in simple and understandable language.” Given the currently required language, NHTSA interprets one purpose of the new requirement as relaying the same basic information to vehicle users in a more straightforward and condensed manner appropriate for a sticker or label. With that in mind, NHTSA developed the following proposed language for the consumer information label:

    Do you believe your vehicle has a safety-related problem?

    The National Highway Traffic Safety Administration (NHTSA) NEEDS to know.

    File your complaint with NHTSA today! Filing a complaint is easy:

    Online: http://www.safercar.gov Toll-free Hotline: 1-888-327-4236 (TTY: 1-800-424-9153) Mail: U.S. Department of Transportation, NHTSA, Office of Defects Investigation, NEF-100, 1200 New Jersey Avenue SE., Washington, DC 20077-9382.

    Information about how to keep your vehicle safe can be found at www.SaferCar.gov.

    NHTSA believes the above proposed language would be easily readable and comprehensible, and that by sticking to brief, standardized content, the proposed device would effectively inform consumers of how to file a potential vehicle safety defect. The agency believes that longer strings of information in this context are unnecessary, and may detract from a vehicle user's ability to internalize the information presented. The simple listing format above is intended to make it less likely that a vehicle user would miss the key message of the label or device.

    NHTSA requests comment on the language, including whether it provides the necessary information on how to contact NHTSA with vehicle safety-related complaints, and whether it is simple and understandable. Should the commenter have additional or revised language to propose, the agency requests detail as to what additional or revised language is recommended and how it is likely to fulfill the statutory purpose better than the proposed text.

    Label Design

    NHTSA believes the intent of Section 31306 of MAP-21 was to provide consumers with easily accessible and understandable information on how to contact the agency with any vehicle safety-related defects and complaints. NHTSA does not believe that the requirements under this rule are intended to increase a manufacturer burden beyond communicating the basic information on how to contact the agency with a vehicle safety-related defect complaint.

    With that in mind, NHTSA is proposing the following simple design requirements for the label, which are similar to the design requirements of the air bag warning label and the rollover warning label: 20

    20 See 49 CFR part 571.208; 49 CFR part 575.105, Vehicle Rollover.

    • The title must be in a bold black text.

    • The message area must be white with black text.

    • The pictograms must be black with a white background.

    • The label must be appropriately sized so that it is legible, visible and prominent to the driver.

    NHTSA believes that these requirements communicate the information as intended in the statute in an accessible, readable, and comprehensive manner. NHTSA believes that a simple black and white label would effectively communicate the necessary information, and that requiring color on labels could create an unnecessary financial burden to some manufacturers. In regard to the font for the label, NHTSA is not proposing either a particular font face, font size, or case for the label. In existing label requirements (e.g., tire, rollover, and air bag), the agency has not encountered issues with leaving the font specifications up to manufacturers. However, NHTSA is proposing to specify that the text on the label be “legible, visible, and prominent” to the driver.21 NHTSA is also not proposing to specify a size, shape, or dimension for the label, in order to provide manufacturers the flexibility to design the placard and label in a manner that can be configured to each vehicle design. This flexibility is similar to that provided in other label requirements.22 A sample of the proposed label is as follows:

    21 See 67 FR 69617.

    22 Id.

    EP28NO16.007

    NHTSA seeks comments on the proposed design of the label, including the current recommendation to keep the label in black and white without additional colors. If a comment requests that the labels have color, either on the background and/or in the content including text, the commenter should provide a detailed explanation as to the benefit such changes would provide to the consumer. NHTSA also seeks comment on the proposed content, as to whether the information is adequate to inform consumers on what actions to take should they feel they have a safety-related problem with their vehicle, and whether there is any undue burden that vehicle manufacturers may face under this proposal that the agency should consider.

    V. Alternatives Considered and Proposal for the Owner's Manual Information

    NHTSA considered whether to develop unique language for owner's manuals on how to submit a defect complaint, whether to use the same language in the manual as is required for the label, or whether to simply update the currently required owner's manual information with NHTSA's new address and SaferCar mobile application.

    NHTSA believes that the clearest way to read Section 31306(d)(1)(B) of MAP-21 (“prominently print the information described in [the label requirement] within the owner's manual”) is that Congress intended for the same essential information displayed in the label to be available in the owner's manual, but not necessarily that the label be exactly reproduced in the owner's manual. If Congress had intended for the label to be printed in both places, we believe it would have indicated so more directly by combining the two requirements, rather than refer to the required information more broadly as that “described in” the label requirement. Further, we believe that the greater space offered in owner's manuals allows for additional explanatory statements that may be useful to a consumer seeking more information on the defects reporting process.

    For the above reasons, NHTSA is proposing the following language for the owner's manual requirement:

    If you believe that your vehicle has a defect which could cause a crash or could cause injury or death, you should immediately inform the National Highway Traffic Safety Administration (NHTSA) in addition to notifying [INSERT NAME OF MANUFACTURER].

    If NHTSA receives similar complaints, it may open an investigation, and if it finds that a safety defect exists in a group of vehicles, it may order a recall and remedy campaign. However, NHTSA cannot become involved in individual problems between you, your dealer, or [INSERT NAME OF MANUFACTURER].

    To contact NHTSA, you may call the Vehicle Safety Hotline toll-free at 1-888-327-4236 (TTY: 1-800-424-9153); go to http://www.safercar.gov; download the SaferCar mobile application; or write to: Administrator, NHTSA, 1200 New Jersey Ave. SE., Washington, DC 20590. You can also obtain other information about motor vehicle safety from http://www.safercar.gov.

    NHTSA is not proposing design requirements for the owner's manual information, beyond that it must be printed in a font size no smaller than 10 point type. NHTSA is also not proposing to require the owner's manual information to be printed in a particular section of the manual. We recognize that there may be some increased consumer exposure benefit to requiring the information to be printed in a standard design, and/or on a particular page of the manual. However, in the event of a safety-related issue with their vehicle, we believe it is common for a vehicle user to consult the table of contents within the manual for direction on their particular issue, and thus would be informed of where to find the information on how to submit a defect complaint. We also believe that manufacturers would be capable of fulfilling the statutory requirement to print the information prominently without the potential burden of redesigning their manual layouts to incorporate a standardized placement.

    NHTSA is also proposing to move the required language currently located in 49 CFR part 575.6 to 49 CFR 575.501 in order keep these like requirements in the same place. This section will provide manufacturers with the required safety-related defect reporting information in the owner's manual. As noted above, the current requirement does not include the most up-to-date reporting information, including the Safercar mobile application, and we believe that Congress developed the new owner's manual requirement with the intent that it would subsume the existing regulation.

    NHTSA requests comment on the proposal to use an updated version of the currently required owner's manual information, including whether this would fulfill the statutory requirement. NHTSA also requests comment on whether to require specific design requirements and whether to require the owner's manual information in a particular section of the manual, and whether our assessment of the limited benefits of such additional requirements is accurate. Commenters are requested to provide detailed explanations for any recommendations.

    VI. Costs

    In determining estimated industry costs associated with this proposal, the agency investigated potential “ball-park” production cost and labor cost for labels and owner's manual information.

    For purposes of the label cost estimate, NHTSA estimates the one-time cost and recurring annual cost associated with producing a new, adhesive-type label that is separate from existing labels. NHTSA estimates that the one-time cost per manufacturer for development of the label is $22.67, assuming one hour of labor. The labor cost estimate is based on the Bureau of Labor Statistics Motor Vehicle Manufacturing average hourly wage of production workers.23 See Table 1. The total one-time industry cost to 22 manufacturers of passenger cars and light trucks is estimated at $586.74.

    23http://www.bls.gov/oes/current/oes519199.htm.

    Table 1—Estimated One-Time Manufacturer Cost for Label [2012 Dollars] One-time startup costs Estimated labor
  • rate/hour
  • Estimated labor
  • hours
  • Cost per
  • manufacturer
  • Motor Vehicle Manufacturing Production Worker $26.67 1 $26.67

    We estimate the annual costs for producing the label as follows. NHTSA assumes a per-label cost of $0.04 and a labor value of $0.09 per label. To arrive at a labor value of $0.09, we estimate the average assembly line worker salary 24 ($21.14) divided by 60 minutes, divided by 60 seconds = $0.0059 per second. We estimate that affixing the label on the sun visor would take approximately 15 seconds, based on the amount of time we assumed the average worker would take to open the vehicle door, position the sun visor, and affix the label. This also assumes that, like the VIN numbers, the label would be affixed to the vehicle after it is assembled. We assume that 16.5 million passenger vehicles will be sold per year.25 Based on the above, we estimate that the total annual industry cost for the label, including printing and labor, is $2.15 million. See Table 2.

    24http://www.bls.gov/oes/current/oes512099.htm.

    25 See 78 FR 55138.

    Table 2—Estimated Total Label Annual Industry Cost [2012 Dollars] Number of vehicles Cost of label Labor value per label Cost w/out labor $ Labor Industry
  • annual cost
  • 16.5 million $0.04 $0.09 $660,000 $1,485,000 Total cost $2,145,000

    NHTSA developed the following cost estimates for the development and printing in simple and understandable language within the owner's manual, information about how to submit a safety-related motor vehicle defect complaint to the National Highway Traffic Safety Administration. See Table 3. The cost of printing the page the size of the required text is estimated at $0.04. Multiplying $0.04 by 16.5 million vehicles results in an estimated annual cost to vehicle manufacturers of $660,000 for printing the page in the owner's manual. The one-time cost to manufacturers for the information in the owner's manual is negligible.

    Table 3—Estimated Owner's Manual Information Printing Cost [2012 Dollars] Annual costs Rate Pages Cost Printing—per page $0.04 1 $0.04 16.5 million number of vehicles 660,000

    The estimated total annual recurring cost to vehicle manufacturers is $2.8 million ($2.15 million label cost + $0.66 million owner's manual cost).

    VII. Benefits

    As information on the effects of making defect reporting information more accessible to vehicle users is not available, the benefits of this proposed rule are not quantifiable. However, NHTSA believes that there would be several qualitative benefits of this action. Some of the anticipated benefits would fall to vehicle users. These benefits could be direct (improved consumer awareness and involvement) or indirect (fewer vehicle safety incidents or accidents across particular model types on account of an expanded or quickened defect reporting and response process). Other anticipated benefits would fall to agency and the industry in the form of efficiencies gained by closing information gaps. The anticipated benefits of this proposal include:

    (1) Improved messaging and information to consumers on how to submit a safety-related motor vehicle defect complaint to NHTSA;

    (2) increased consumer involvement in the motor vehicle defect reporting process;

    (3) reduced time between consumer awareness of a possible motor vehicle defect and industry response;

    (4) cost savings to the consumer through improved and timely defect-related response by the manufacturer;

    (5) reduction in the risk and incident of injuries and fatalities attendant with the possible safety-related motor vehicle defect;

    (6) decrease in motor vehicle property damage;

    (7) improvement in agency data-collection on potential safety problems in motor vehicles and motor vehicle equipment, and resultant decisions on whether to open an investigation; and,

    (8) cost savings to the industry by providing motor vehicle manufacturers with information that they may not yet have identified and gathered.

    The agency believes that the benefits of this proposal would be higher than the costs. NHTSA requests comment on the benefits described here, and on any additional benefits and/or ways to quantify benefits.

    VIII. Compliance and Penalties

    In adding the 32302(d) requirements under MAP-21, Congress did not amend the existing compliance and civil penalty provisions in 49 U.S.C. Chapter 323; therefore, NHTSA tentatively concludes that those provisions apply for regulations promulgated under 32302(d).

    49 U.S.C. 32308(a) states, in relevant part, that a person commits a violation of Chapter 323 if that person fails to provide the Secretary of Transportation (by delegation, the Administrator of NHTSA) with information requested in carrying out Chapter 323, or fails to comply with the applicable regulations prescribed under Chapter 323. 32308(b) prescribes a civil penalty of not more than $1,000 for each violation of 32308(a).

    IX. Proposed Compliance Date

    The proposed compliance date for label and owner's manual requirements is the first model year that occurs more than one year following the publication date of a final rule implementing this proposal. The compliance date adheres to the provision in Section 31306(d)(2) of MAP-21, which states that the above requirements “shall apply to passenger motor vehicles manufactured in any model year beginning more than 1 year after the date on which a final rule is published.” NHTSA believes the lead time proposed for the label may be necessary; however, early compliance would be encouraged. With regard to owner's manual information, NHTSA believes this amount of lead time is more than necessary. First, the agency is proposing standardized language. Additionally, in most cases, owner's manual information is developed, reviewed, and approved in an entirely digital environment, which significantly reduces lead time. Moreover, the agency is aware that some manufacturers have moved, or are in the process of moving, to full digital delivery of owner's manual information, where owner's manual information is delivered via a digital video disc (DVD) or some other digital format.26 In some of these cases, official vehicle manufacturer owner's manual information is available via the internet for reference; one manufacturer currently provides vehicle owners information via an electronic tablet device as the primary information source, with a more traditional paper version as a secondary method.27

    26 “Chrysler Phases Out Paper Owner's Manual” http://wheels.blogs.nytimes.com/2009/09/23/chrysler-does-away-with-paper-owners-manual/ (last accessed June 17, 2015).

    27 “2012 Hyundai Equus Continues To Redefine Intelligent Luxury,” http://www.hyundainews.com/us/en-us/Media/PressRelease.aspx?mediaid=32732&title=2012-hyundai-equus-continues-to-redefine-intelligent-luxury (last accessed February 5, 2016).

    NHTSA seeks comment on whether the proposed lead time is reasonable. If a commenter wishes the agency to provide additional lead time, NHTSA requests that the commenter provide specific explanations for why more lead time might be needed for which elements of the proposal. For example, if a commenter sought more lead time for the owner's manual requirements, NHTSA seeks any relevant details of the owner's manual publication process and associated timing, along with current and future media that would be used for the owner's manual information.

    X. Public Participation

    NHTSA requests comment on all aspects of this proposed rule. This section describes how you can participate in this process.

    A. How do I prepare and submit comments? 1. Further instructions for submitting comments to the NHTSA docket are described below:

    Your comments must be written and in English. To ensure that your comments are correctly filed in the docket, please include the Docket Number NHTSA-2015-0096 in your comments. Your comments must not be more than 15 pages long.28 NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents, which are not subject to the page limit, to your comments.

    28 49 CFR 553.21.

    If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using the Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.29 Please note that pursuant to the Data Quality Act, in order for the substantive data to be relied upon and used by the agencies, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines.

    29 Optical character recognition (OCR) is the process of converting an image of text, such as a scanned paper document or electronic fax file, into computer-editable text.

    Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg_reproducible (last accessed January 2, 2014), and DOT's guidelines may be accessed at http://regs.dot.gov (last accessed January 2, 2014).

    2. Tips for Preparing Your Comments

    When submitting comments, please remember to:

    • Identify the rulemaking by docket numbers and other identifying information (subject heading, Federal Register date and page number).

    • Follow directions—the agencies may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

    • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.

    • Describe any assumptions and provide any technical information and/or data that you used.

    • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    • Provide specific examples to illustrate your concerns and suggest alternatives.

    • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    Make sure to submit your comments by the comment period deadline identified in the DATES section above.

    XI. Regulatory Notices and Analyses A. Executive Orders 12866 and 13563

    NHTSA has considered the impact of this rulemaking action under Executive Orders 12866 and 13563 and the Department of Transportation's regulatory policies and procedures. This action is not significant and therefore was not subject to review by OMB under Executive Order 12866. The benefits and costs of this proposal are described above. Because the proposed rule would, if adopted, would not be economically significant, the agency has not prepared a separate Preliminary Regulatory Evaluation.

    B. Regulatory Flexibility Act

    We estimate these proposed requirements would cost each small vehicle manufacturer approximately $0.13 per vehicle, or far less than 1% of the cost of one of these vehicles, and would therefore not appear to constitute a significant economic impact. Thus, NHTSA certifies that this rule, if adopted, would not have a significant impact on a substantial number of small entities.

    C. Executive Order 13132

    NHTSA does not believe that there would be sufficient federalism implications to warrant the preparation of a federalism assessment.

    D. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, “Civil Justice Reform,” 30 NHTSA has considered whether this rulemaking would have any retroactive effect. This proposed rule does not have any retroactive effect.

    30 61 FR 4729 (Feb. 7, 1996).

    E. National Environmental Policy Act (NEPA)

    For the purposes of the National Environmental Policy Act, NHTSA has determined that implementation of this rulemaking action would not have any significant impact on the quality of the human environment.

    F. Paperwork Reduction Act

    The proposed rule does not implicate any information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    G. Unfunded Mandates Reform Act of 1995

    NHTSA has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

    H. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. NHTSA has not identified any existing voluntary consensus standards that could be used for this proposal.

    I. Plain Language

    Executive Orders 12866 and 13563 require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

    • Have we organized the material to suit the public's needs?

    • Are the requirements in the rule clearly stated?

    • Does the rule contain technical language or jargon that is not clear?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

    • Would more (but shorter) sections be better?

    • Could we improve clarity by adding tables, lists, or diagrams?

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

    If you have any responses to these questions, please include them in your comments on this proposal. J. Privacy Act

    Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For more information on DOT's implementation of the Privacy Act, please visit: http://www.dot.gov/privacy. You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

    List of Subjects in 49 CFR Part 575

    Consumer protection, Motor vehicle safety, Reporting and recordkeeping requirements, Tires.

    Proposed Regulatory Text

    For the foregoing reasons, NHTSA proposes to amend 49 CFR part 575 as follows:

    PART 575—CONSUMER INFORMATION 1. The authority citation for part 575 is revised to read as follows: Authority:

    49 U.S.C. 32302, 32304A, 30111, 30115, 30117, 30123, 30166, 30181, 30182, 30183, and 32908, Pub. L. 104-414, 114 Stat. 1800, Pub. L. 109-59, 119 Stat. 1144, Pub. L. 110-140, 121 Stat. 1492, Pub. L. 112-141, 126 Stat. 405, 15 U.S.C. 1232(g); delegation of authority at 49 CFR 1.95.

    2. Amend § 575.6 by removing paragraph (a)(2) and redesignating paragraphs (a)(3) through (5) as paragraphs (a)(2) through (4). 3. Add Subpart F to read as follows: Subpart F—Moving Ahead for Progress in the 21st Century Act; Consumer Information Authority:

    49 U.S.C. 30101 et. seq., Sec. 31306, Pub. L. 112-141, 126 Stat. 405, delegation of authority at 49 CFR 1.95.

    § 575.501 Safety defect reporting

    (a) Purpose and scope. This section requires manufacturers of passenger motor vehicles to affix a label that describes the process for submitting a complaint about a safety-related motor vehicle defect to the National Highway Traffic Safety Administration. This section also requires manufacturers to include the same information in the owner's manual.

    (b) Application. This section applies to passenger motor vehicles under 10,000 lbs GVWR.

    (c) Required information— (1) Label. (i) Each passenger motor vehicle must have a label permanently affixed to the passenger's sun visor. The label must not appear on the same side of the sun visor to which the sun visor air bag warning label is affixed, as required by S4.5.1(b)(5) of 49 CFR 571.208. The label must conform in content, form, and sequence to the label shown in Figure 1 of this section, and must comply with the following requirements:

    (A) The title must be in a bold black text.

    (B) The message area must have a white background and black text.

    (C) The pictograms must be black with a white background.

    (D) The label must be appropriately sized so that it is legible, visible, and prominent to the driver.

    (ii) When the safety defect reporting label required by paragraph (c)(1)(i) of this section and the air bag alert label required by S4.5.1(c) of 49 CFR 571.208 are affixed to the same side of the passenger's sun visor, the pictogram of the air bag alert label must be separated from the pictograms of the safety defect reporting label by text and:

    (A) The labels must be located such that the shortest distance from any of the lettering or graphics on the safety defect reporting label to any of the lettering or graphics on the air bag alert label is not less than 3 cm, or

    (B) If the safety defect reporting and air bag alert labels are each surrounded by a continuous solid-lined border, the shortest distance from the border of the safety defect reporting label to the border of the air bag alert label must be not less than 1 cm.

    (iii) At the option of the manufacturer, the requirement in paragraph (c)(1)(i) of this section for a permanently affixed label may instead be met by permanent marking and molding of the required information onto the specified location.

    (2) Owner's Manual. (i) The manufacturer of each passenger motor vehicle must provide to the purchaser, in writing in the English language and not less than 10 point type, the following statement in the owner's manual, or, if there is no owner's manual or the owner's manual is electronic, on a one-page document:

    If you believe that your vehicle has a defect which could cause a crash or could cause injury or death, you should immediately inform the National Highway Traffic Safety Administration (NHTSA) in addition to notifying [INSERT NAME OF MANUFACTURER]. To contact NHTSA, you may call the Vehicle Safety Hotline toll-free at 1-888-327-4236 (TTY: 1-800-424-9153); go to http://www.safercar.gov; download the SaferCar mobile application; or write to: Administrator, NHTSA, 1200 New Jersey Ave. SE., Washington, DC 20590. You can also obtain other information about motor vehicle safety from http://www.safercar.gov.

    If NHTSA receives similar complaints, it may open an investigation, and if it finds that a safety defect exists in a group of vehicles, it may order a recall and remedy campaign. However, NHTSA cannot become involved in individual problems between you, your dealer, or [INSERT NAME OF MANUFACTURER].

    (ii) The manufacturer must specify in the table of contents of the owner's manual the location of the statement required in paragraph (c)(2)(i). The heading in the table of contents must state “Reporting Safety Defects.”

    EP28NO16.008

    Issued in Washington, DC.

    Raymond R. Posten, Associate Administrator for Rulemaking.
    [FR Doc. 2016-28125 Filed 11-25-16; 8:45 am] BILLING CODE 4910-59-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R9-ES-2012-0013; 4500030115] RIN 1018-AY38 Endangered and Threatened Wildlife and Plants; Listing the Hyacinth Macaw AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Revised proposed rule; reopening of public comment period.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, notify the public that we are making changes to our July 6, 2012, proposed rule to list the hyacinth macaw (Anodorhynchus hyacinthinus) as an endangered species under the Endangered Species Act of 1973, as amended (Act). Based on new information, we now propose to list the hyacinth macaw as a threatened species under the Act. We also propose a concurrent rule under section 4(d) of the Act for this species. We are reopening the comment period to allow comments on the new information presented in this document relevant to the changes described below. Comments previously submitted will be considered and do not need to be resubmitted. However, we encourage those who may have commented previously to submit additional comments, if appropriate, in light of this new information.

    DATES:

    The comment period for the proposed rule published July 6, 2012 (77 FR 39965) is reopened. We will accept comments received on or before January 27, 2017. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES , below) must be received by 11:59 p.m. Eastern Time on the closing date. Requests for a public hearing must be received by January 12, 2017.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow instructions for submitting comments to Docket No. FWS-R9- ES-2012-0013.

    (2) U.S. mail or hand delivery: Public Comments Processing, Attn: [FWS-R9-ES-2012-0013]; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, Falls Church, VA 22041.

    FOR FURTHER INFORMATION CONTACT:

    Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: ES, Falls Church, VA 22041; telephone 703-358-2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary I. Purpose of the Regulatory Action

    Before a plant or animal species can receive the protection provided by the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), it must first be added to the Federal List of Endangered and Threatened Wildlife or the Federal List of Endangered and Threatened Plants, found in title 50 of the Code of Federal Regulations (CFR) in part 17. A species may warrant protection through listing if it is found to be an endangered or threatened species throughout all or a significant portion of its range. Under the Act, if a species is determined to be endangered or threatened we are required to publish in the Federal Register a proposed rule to list the species. We are proposing to list the hyacinth macaw as a threatened species under the Act. We are also proposing a rule under section 4(d) of the Act that defines the prohibitions and exceptions that apply to hyacinth macaws.

    II. Major Provisions of the Regulatory Action

    If adopted as proposed, this action will list the hyacinth macaw as a threatened species in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h), and will allow the import and export of certain hyacinth macaws into and from the United States and certain acts in interstate commerce without a permit under the Act. This action is authorized by the Act.

    Information Requested

    Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made solely on the basis of the best scientific and commercial data available. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, industry, and any other interested parties concerning this revised proposed rule. We particularly seek comments concerning:

    (1) The species' biology, range, and population trends, including:

    (a) New or expanding populations; and

    (b) Estimates for new and expanding populations.

    (2) Deforestation rates in areas where the hyacinth macaw occurs.

    (3) Conservation actions or plans that address either the hyacinth macaw or deforestation in areas where the hyacinth occurs; as well as the status of those actions and plans (level of implementation, success, challenges, etc.).

    (4) Availability of nesting cavities.

    (5) The factors that are the basis for making a listing determination for a species or subspecies under section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.), which are:

    (A) The present or threatened destruction, modification, or curtailment of its habitat or range;

    (B) Overutilization for commercial, recreational, scientific, or educational purposes;

    (C) Disease or predation;

    (D) The inadequacy of existing regulatory mechanisms; or

    (E) Other natural or manmade factors affecting its continued existence.

    (6) The potential effects of climate change on the subspecies and its habitat.

    (7) The proposed rule under section 4(d) of the Act that will allow the import and export of certain hyacinth macaws into and from the United States and certain acts in interstate commerce without a permit under the Act.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination.

    Public Hearing

    Section 4(b)(5) of the Act requires the Service to hold a public hearing on this proposal, if requested within 45 days of publication of the notice. At this time, we do not have a public hearing scheduled for this revised proposed rule. The main purpose of most public hearings is to obtain public testimony or comment. In most cases, it is sufficient to submit comments through the Federal eRulemaking Portal, described above in ADDRESSES. If you would like to request a public hearing for this proposed rule, you must submit your request, in writing, to the person listed in FOR FURTHER INFORMATION CONTACT by the date specified in DATES.

    Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited peer review on our July 6, 2012, proposed rule. In accordance with our August 22, 2016 memorandum updating and clarifying the role of peer review of listing actions under the Act, we will solicit the expert opinions of at least three appropriate and independent specialists for peer review of this proposed rule. The purpose of such review is to ensure that decisions are based on scientifically sound data, assumptions, and analysis. We will send peer reviewers copies of this revised proposed rule immediately following publication in the Federal Register. We will invite peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed listing status for the hyacinth macaw. We will summarize the opinions of these reviewers in the final decision document, and we will consider their input and any additional information we receive, as part of our process of making a final decision on the revised proposal.

    Previous Federal Actions

    On January 31, 2008, the Service received a petition dated January 29, 2008, from Friends of Animals, as represented by the Environmental Law Clinic, University of Denver, Sturm College of Law, requesting that we list 14 parrot species, including the hyacinth macaw, under the Act. The petition clearly identified itself as a petition and included the requisite information required in the Code of Federal Regulations (50 CFR 424.14(a)). On July 14, 2009 (74 FR 33957), we published a 90-day finding in which we determined that the petition presented substantial scientific and commercial information to indicate that listing may be warranted for 12 of the 14 parrot species, including the hyacinth macaw. We initiated the status review to determine if listing each of the 12 species as a threatened species or endangered species under the Act is warranted, and initiated an information collection period to allow all interested parties an opportunity to provide information on the status of these 12 species of parrots.

    On October 24 and December 2, 2009, the Service received 60-day notices of intent to sue from Friends of Animals and WildEarth Guardians, respectively, for failure to make determinations on whether the petitioned action is warranted, not warranted, or warranted but precluded by other listing actions within 12 months after receiving a petition presenting substantial information indicating listing may be warranted (“12-month findings”). On March 2, 2010, Friends of Animals and WildEarth Guardians filed suit against the Service for failure to make 12-month findings on the petition to list the 14 species within the statutory deadline of the Act (Friends of Animals, et al. v. Salazar, Case No. 1:10-CV-00357-RPM (D.D.C.)).

    On July 21, 2010, a settlement agreement was approved by the Court, in which the Service agreed to submit to the Federal Register by July 29, 2011, September 30, 2011, and November 30, 2011, 12-month findings for no fewer than four of the petitioned species on each date. On August 9, 2011, the Service published in the Federal Register a 12-month finding and proposed rule for the following four parrot species: Crimson shining parrot, Philippine cockatoo, white cockatoo, and yellow-crested cockatoo (76 FR 49202). On October 6, 2011, a 12-month finding was published for the red-crowned parrot (76 FR 62016). On October 11, 2011, a 12-month finding and proposed rule was published for the yellow-billed parrot (76 FR 62740), and on October 12, 2011, a 12-month finding was published for the blue-headed macaw and grey-cheeked parakeet (76 FR 63480).

    On September 16, 2011, the Court granted a request to extend the November 30, 2011, deadline allowing the Service to submit 12-month findings for the four remaining species, including hyacinth macaw, to the Federal Register by June 30, 2012. On July 6, 2012, the Service published in the Federal Register a 12-month finding and proposed rule to list the hyacinth macaw as an endangered species under the Act (77 FR 39965). On February 21, 2013, the Service reopened the public comment period to allow all interested parties an opportunity to provide additional comments on the proposed rule and to submit information on the status of the species (78 FR 12011).

    Background

    Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered or a threatened species based on any of the following five factors:

    (A) The present or threatened destruction, modification, or curtailment of its habitat or range;

    (B) Overutilization for commercial, recreational, scientific, or educational purposes;

    (C) Disease or predation;

    (D) The inadequacy of existing regulatory mechanisms; or

    (E) Other natural or manmade factors affecting its continued existence.

    We fully considered the comments and information we received from the public and peer reviewers. We also conducted a search for information that became available since our 2012 proposed rule. We made some technical corrections and included additional information on the work being done by the Hyacinth Macaw Project. Based on new information, we also reevaluated impacts to the species from deforestation and predation. Based on our evaluation of this new information, we are proposing to list the hyacinth macaw as a threatened species under the Act. We summarize below the information on which we based our evaluation of the five factors provided in section 4(a)(1) of the Act. We are also proposing a rule under section 4(d) of the Act that defines the prohibitions and exceptions that apply to hyacinth macaws.

    Species Information Taxonomy and Species Description

    The hyacinth macaw (hyacinth) is the largest bird of the parrot family, Family Psittacidae, (Guedes and Harper 1995, p. 395; Munn et al. 1989, p. 405). It measures approximately 1 meter (m) (3.3 feet (ft)) in length. Average female and male wing lengths measure approximately 400 to 407.5 millimeters (mm) (1.3 ft), respectively. Average tail lengths for females and males are 492.4 mm (1.6 ft) and 509.4 mm (1.7 ft), respectively (Forshaw 1973, p. 364). Hyacinth macaws are characterized by a predominately cobalt-blue plumage, black underside of wing and tail, and unlike other macaws, have feathered faces and lores (areas of a bird's face from the base of the bill to the front of the eyes). In addition, they have bare yellow eye rings, bare yellow patches surrounding the base of their lower mandibles, large and hooked grey-black bills, dark-brown irises. Their legs, which are dark grey in most birds but lighter grey to white in older adults, are short and sturdy to allow the bird to hang sideways or upside down while foraging. Immature birds are similar to adults, but with shorter tails and paler yellow bare facial skin (Juniper and Parr 1998, pp. 416-417; Guedes and Harper 1995, p. 395; Munn et al. 1989, p. 405; Forshaw 1973, p. 364).

    The hyacinth macaw experiences late maturity, not reaching first reproduction until 8 or 9 years old (Guedes 2009, p. 117). Hyacinths are monogamous and faithful to nesting sites; a couple may reproduce for more than a decade in the same nest. They nest from July to January in tree cavities and, in some parts of its range, cliff cavities (Tortato and Bonanomi 2012, p. 22; Guedes 2009, pp. 4, 5, 12; Pizo et al. 2008, p. 792; Pinho and Nogueira 2003, p. 35; Abramson et al. 1995, p. 2). The hyacinth macaw lays two smooth, white eggs approximately 48.4 mm (1.9 inches (in)) long and 36.4 mm (1.4 in) wide. Eggs are usually found in the nest from August until December (Guedes 2009, p. 4; Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 406). The female alone incubates the eggs for approximately 28-30 days. The male remains near the nest to protect it from invaders, but may leave 4-6 times a day to forage and collect food for the female (Schneider et al. 2006, pp. 72, 79; Guedes and Harper 1995, p. 406). Chicks are mostly naked, with sparse white down feathers at hatching. Young are fed regurgitated, chopped palm nuts (Munn et al. 1989, p. 405). Most chicks fledge at 105-110 days old; however, separation is a slow process. Fledglings will continue to be fed by the parents for 6 months, when they begin to break hard palm nuts themselves, and may remain with the adults for 16 months, after which they will join groups of other young birds (Schneider et al. 2006, pp. 71-72; Guedes and Harper 1995, pp. 407-411).

    Hyacinth macaws naturally have a low reproductive rate, a characteristic common to all parrots, due, in part, to asynchronous hatching. Although hyacinths lay two eggs, usually only one chick survives (Guedes 2009, p. 31; Faria et al. 2008, p. 766; Kuniy et al. 2006, p. 381; Guedes, 2004b, p. 6; Munn et al. 1989, p. 409). Not all hyacinth nests fledge young, and, due to the long period of chick dependence, hyacinths breed only every 2 years (Faria et al. 2008, p. 766; Schneider et al. 2006, pp. 71-72; Guedes 2004b, p. 7; Pinho and Nigueira 2003, p. 30; Guedes and Harper 1995, pp. 407-411; Munn et al. 1989, p. 409). In a study of the Pantanal, the largest population of hyacinth macaws, it was suggested that only 15-30 percent of adults attempt to breed; it may be that as small or an even smaller percentage in Pará and Gerais attempt to breed (Munn et al. 1998, p. 409).

    Range and Population

    At one time, hyacinths were widely distributed, occupying large areas of Central Brazil into the Bolivian and Paraguayan Pantanal (Guedes 2009, pp. xiii, 11; Pinho and Nogueira 2003, p. 30; Whittingham et al. 1998, p. 66; Guedes and Harper 1995, p. 395). Today, the species is limited to three areas totaling approximately 537,000 km2, almost exclusively within Brazil: (1) Eastern Amazonia in Pará, Brazil, south of the Amazon River along the Tocantins, Xingu, and Tapajós rivers; (2) the Gerais region of northeastern Brazil, including the states of Maranhão, Piauí, Goiás, Tocantins, Bahia, and Minas Gerais; and (3) the Pantanal of Mato Grosso and Mato Grosso do Sul, Brazil and marginally in Bolivia and Paraguay. These areas have experienced less pressure from trapping, hunting, and agriculture (Birdlife International (BLI) 2014a, unpaginated; Snyder et al. 2000, p. 119; Juniper and Parr 1998, p. 416; Abramson et al. 1995, p. 14; Munn et al. 1989, p. 407).

    Prior to the arrival of Indians and Europeans to South America, there may have been between 100,000 and 3 million hyacinth macaws (Munn et al. 1989, p. 412); however, due to the species' large but patchy range, an estimate of the original population size when the species was first described (1790) is unattainable (Collar et al. 1992, p. 253). Although some evidence suggests that the hyacinth macaw was abundant before the mid-1980s (Guedes 2009, p. 11; Collar et al. 1992, p. 253), the species significantly declined throughout the 1980s due to an estimated 10,000 birds illegally captured for the pet trade and a further reduction in numbers due to habitat loss and hunting. Although population estimates prior to 1986 are lacking, a very rapid population decline is suspected to have taken place over the last 31 years (three generations) (BLI 2014a, unpaginated). In 1986, the total population of hyacinth macaws was estimated to be 3,000, with a range between 2,500 and 5,000 individuals; 750 occurred in Pará, 1,000 in Gerais, and 1,500 in Pantanal (Guedes 2004b, p. 2; Collar et al. 1992, p. 253; Munn et al. 1989, p. 413). In 2003, the population was estimated at 6,500 individuals; 5,000 of which were located in the Pantanal region, and 1,000-1,500 in Pará and Gerais, combined (BLI 2014a, unpaginated; Guedes 2009, p. 11; Brouwer 2004, unpaginated; WWF 2004, unpaginated). Observations of hyacinth macaws in the wild have increased in Paraguay, especially in the northern region (Espinola 2013, pers. comm.), but no quantitative data is available. Locals report the species increasing in Bolivia; between 140 and 160 hyacinths are estimated to occur in the Bolivian Pantanal, with estimates as high as 300 for the entire country (Guedes 2012, p. 1; Pinto-Ledezma 2011, p. 19).

    Although the 2003 estimate indicates a substantial increase in the Pantanal population, the methods or techniques used to estimate the population are not described; therefore, the reliability of the estimation techniques, as well as the accuracy of the estimated increase, are not known (Santos, Jr. 2013, pers. comm.). Despite the uncertainty in the estimated population increase, the Pantanal is the stronghold for the species and has shown signs of recovery since 1990, most likely as a response to conservation projects (BLI 2014a, unpaginated; Antas et al. 2006, p. 128; Pinho and Nogueira 2003, p. 30). However, the overall population trend for the hyacinth macaw is reported as decreasing (BLI 2014a, unpaginated), although there are no extreme fluctuations reported in the number of individuals (BLI 2014a, unpaginated).

    Essential Needs of the Species

    Hyacinths use a variety of habitats in the Pará, Gerais, and Pantanal regions. Each region features a dry season that prevents the growth of extensive closed-canopy tropical forests and maintains the more open habitat preferred by this species. In Pará, the species prefers palm-rich várzea (flooded forests), seasonally moist forests with clearings, and savannas. In the Gerais region, hyacinths are located within the Cerrado biome, where they inhabit dry open forests in rocky, steep-sided valleys and plateaus, gallery forests (a stretch of forest along a river in an area of otherwise open country), and Mauritia palm swamps. In the Pantanal region, hyacinth macaws frequent gallery forests and palm groves with wet grassy areas (Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 395; Munn et al. 1989, p. 407).

    Hyacinths have a specialized diet consisting of the fruits of various palm species, which are inside an extremely hard nut that only the hyacinth can easily break (Guedes and Harper 1995, p. 400; Collar et al. 1992, p. 254). Hyacinths are highly selective in choice of palm nut; they have to be the right size and shape, as well as have an extractable kernel with the right lignin pattern (Brightsmith 1999, p. 2; Pittman 1993, unpaginated). They forage for palm nuts and water on the ground, but may also forage directly from the palm tree and drink fluid from unripe palm fruits. Hyacinths also feed on the large quantities of nuts eliminated by cattle in the fields and have been observed in close proximity to cattle ranches where waste piles are concentrated (Juniper and Parr 1998, p. 417; Yamashita 1997, pp. 177, 179; Guedes and Harper 1995, pp. 400-401; Collar et al. 1992, p. 254).

    In each of the three regions where hyacinths occur, they use only a few specific palm species. In Pará, hyacinths have been reported to feed on Maximiliana regia (inajá), Orbignya martiana (babassu), Orbignya phalerata (babacú) and Astrocaryum sp. (tucumán). In the Gerais region, hyacinths feed on Attalea funifera (piacava), Syagrus coronata (catolé), and Mauritia vinifera (buriti). In the Pantanal region, hyacinths feed exclusively on Scheelea phalerata (acuri) and Acrocromia totai (bocaiúva) (Antas et al. 2006, p. 128; Schneider et al. 2006, p. 74; Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 401; Collar et al. 1992, p. 254; Munn et al. 1987, pp. 407-408). Although hyacinths prefer bocaiúva palm nuts over acuri, bocaiúva is only readily available from September to December, which coincides with the peak of chick hatching; however, the acuri is available throughout the year and constitutes the majority of this species' diet in the Pantanal (Guedes and Harper 1995, p. 400).

    Hyacinths also have specialized nesting requirements. As a secondary tree nester, they require large, mature trees with preexisting tree holes to provide nesting cavities large enough to accommodate them (Tortato and Bonanomi 2012, p. 22; Guedes 2009, pp. 4, 5, 12; Pizo et al. 2008, p. 792; Abramson et al. 1995, p. 2). In Pará, the species nests in holes of Bertholettia excelsa (Brazil nut). In the Gerais region, nesting may occur in large dead Mauritia vinifera (buriti), but is most commonly found in natural rock crevices. In the Pantanal region, the species nests almost exclusively (94 percent) in Sterculia striata (manduvi) as it is one of the few tree species that grows large enough to supply cavities that can accommodate the hyacinth's large size. Manduvi trees must be at least 60 years old, and on average 80 years old, to provide adequate cavities (Guedes 2009, pp. 59-60; Pizo et al. 2008, p. 792; Santos Jr. et al. 2006, p. 185). Nesting has also been reported in Pithecellobium edwalii (angio branco), Enterolobium contortisiliquum (ximbuva), Vitex sp. (tarumá), and the cliff face of mountains on the border of the Pantanal (van der Meer 2013, p. 24; Guedes 2004b, p. 6; Kuniy et al. 2006, p. 381; Santos Jr. et al. 2006, p. 180; Pinho and Nogueira 2003, pp. 30, 33; Guedes 2002, p. 4; Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 402; Collar et al. 1992, p. 255; Munn et al. 1987, p. 408).

    Conservation Status

    In 1989, the hyacinth was listed on the Official List of Brazilian Fauna Threatened with Extinction by the Brazilian Institute of Environment and Natural Resources (IBAMA), the government agency that controls the country's natural resources (Lunardi et al. 2003, p. 283; IBAMA Ordinance No. 1522, of December 19, 1989). Due to actions to combat trafficking of animals, the hyacinth macaw was removed from the list in 2014 (Instituto Chico Mendes de Conservação da Bioversidade 2016, unpaginated). It is listed as “critically endangered” by the State of Minas Gerais and “vulnerable” by the State of Pará (Garcia and Marini 2006, p. 153). In Paraguay, the hyacinth is listed as in danger of extinction (Secretaría del Ambiente n.d., p. 4; Bauer 2012, pers. comm.).

    From 2000 to 2013, this species was classified as “endangered” by the IUCN. However, in 2014, the hyacinth was downlisted to “vulnerable” because evidence suggested that it had not declined as rapidly as previously thought. A “vulnerable” taxon is considered to be facing a high risk of extinction in the wild, whereas an “endangered taxon is considered to be facing a very high risk of extinction in the wild (BLI 2014a, unpaginated). The hyacinth macaw is also listed as Appendix I on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) list. Species included in CITES Appendix I are considered threatened with extinction, and international trade is permitted only under exceptional circumstances, which generally precludes commercial trade.

    Factors Affecting the Species

    Most of the information on the hyacinth macaw is from the Pantanal region, as this is the largest and most studied population. The species occurs only marginally within Bolivia and Paraguay as extensions from the Brazilian Pantanal population, and there is little information on the species in those countries. We found little information on the status of the Pará and Gerais populations; therefore, we evaluated impacts to these populations by a broader region (e.g., the Amazon biome for Pará and the Cerrado biome for Gerais).

    Parrots in general have traits that predispose them to extinction (Lee 2010, p. 3; Thiollay 2005, p. 1121; Guedes 2004a, p. 280; Wright et al. 2001, p. 711; Munn et al. 1998, p. 409). Additionally, feeding and habitat specializations are good predictors of a bird species' risk of extinction. The hyacinth scores high in both food and nest site specialization (Faria et al. 2008, p. 766; Pizo et al. 2008, p. 795; Munn et al. 1998, p. 409; Johnson et al. 1997, p. 186; Guedes and Harper 1995, p. 400) as they feed on and nest in very limited number of tree species. Therefore, hyacinths are particularly vulnerable to extinction due to the loss of food sources and nesting sites (Faria et al. 2008, p. 766; Pizo 2008, p. 795; Munn et al. 1998, pp. 404, 409; Johnson et al. 1997, p. 186). As stated above, hyacinths naturally have a low reproductive rate; not all hyacinth nests fledge young, and, due to the long period of chick dependence, hyacinths breed only every 2 years. Only 15-30 percent of adults in the Pantanal attempt to breed; it may be that as small or an even smaller percentage in Pará and Gerais attempt to breed. The specialized nature and reproductive biology of the hyacinth macaw contribute to low recruitment of juveniles and decrease the ability to recover from reductions in population size caused by anthropogenic disturbances (Faria et al. 2008, p. 766; Wright et al. 2001, p. 711). This species' vulnerability to extinction is further heightened by deforestation that negatively affects the availability of essential food and nesting resources, hunting that removes individuals from already small populations, and other factors that further reduce naturally low reproductive rates, recruitment, and the population.

    Deforestation

    Natural ecosystems across Latin America are being transformed due to economic development, international market demands, and government policies. In Brazil, demand for soybean oil and soybean meal has increased, causing land conversion to significantly increase to meet this demand (Barona et al. 2010, pp. 1-2). Much of the recent surge in cropland area expansion is taking place in the Brazilian Amazon and Cerrado regions (Nepstad et al. 2008, p. 1738). Brazil has also become the world's largest exporter of beef. Over the past decade, more than 10 million hectares (ha) (24.7 million acres (ac)) were cleared for cattle ranching, and the government is aiming to double the country's share of the beef export market to 60 percent by 2018 (Butler 2009, unpaginated).

    Pará

    Pará is one of the Brazilian states that constitute the Amazon biome (Greenpeace 2009, p. 2). This biome contains more than just the well-known tropical rainforests; it also encompasses other ecosystems, including floodplain forests and savannas. Between 1995 and 2009, conversion of floodplain forests in the Amazon region to cattle ranching expanded significantly and was the greatest cause of deforestation (da Silva 2009, p. 3; Lucas 2009, p. 1; Collar et al. 1992, p. 257).

    Cattle ranching has been present in the várzea (floodplain forests) of the Amazon for centuries (Arima and Uhl, 1997, p. 433). However, since the late 1970s, state subsidies and massive infrastructure development have facilitated large-scale forest conversion and colonization for cattle ranching (Barona et al. 2010, p. 1). Additionally, certain factors have led to a significant expansion of this land use. The climate of the Brazilian Amazon is favorable for cattle ranching; frosts do not occur in the south of Brazil, and rainfall is more evenly distributed throughout the year, increasing pasture productivity and reducing the risk of fire. In Pará, incidence of disease, such as hoof-and-mouth disease and brucellosis, and ectoparasites are lower than in central and south Brazil. Additionally, the price of land in Pará has been lower than in central and south Brazil, resulting in ranchers selling farms in those areas and establishing larger farms in Pará to compete in the national market (Arima and Uhl, 1997, p. 446).

    Although the immediate cause of deforestation in the Amazon was predominantly the expansion of pasture between 2000 and 2006 (Barona et al. 2010, p. 8), the underlying cause may be the expansion of soy cultivation in other areas, leading to a displacement of pastures further north into parts of Pará causing additional deforestation (Barona et al. 2010, pp. 6, 8).

    In the Brazilian North region, including Pará, cattle occupy 84 percent of the total area under agricultural and livestock uses. This area, on average, expanded 9 percent per year over 10 years causing 70-80 percent of deforestation (Nepstad et al. 2008, p. 1739). Pará itself contains two-thirds of the Brazilian Amazonia cattle herd (Arima and Uhl 1997, p. 343), with a sizable portion of the state classified as cattle-producing area (Walker et al. 2009, p. 69). For 7 months of the year, cattle are grazed in the várzea, but are moved to the upper terra firma the other 5 months (Arima and Uhl, 1997, p. 440). Intense livestock activity can affect seedling recruitment via trampling and grazing. Cattle also compact the soil such that regeneration of forest species is severely reduced (Lucas 2009, pp. 1-2). This type of repeated disturbance can lead to an ecosystem dominated by invasive trees, grasses, bamboo, and ferns (Nepstad et al. 2008, p. 1740).

    Pará has long been known as the epicenter of illegal deforestation (Dias and Ramos 2012, unpaginated) and has one of the highest deforestation rates in the Brazilian Amazon (Portal Brasil 2010, unpaginated). From 1988 to 2015, the state lost 139,824 km2 (53,986 mi2), with annual rates varying between 3,780-8,870 km2 (1,460-3,424 mi2) (Brazil's National Institute for Space Research (INPE) 2015, unpaginated; Butler 2010, unpaginated). Since 2004, deforestation rates in Pará have generally decreased; however, rates rose 35 percent in 2013 before decreasing again (INPE 2015, unpaginated) (Table 1).

    Table 1—Deforestation in Pará (2004-2015) Year Accumulated deforested area (km2) Annual deforested area (km2) Annual change in deforestation rate
  • (%)
  • 2004 * 98,257 8,870 24 2005 104,156 5,899 −33 2006 109,815 5,659 −4 2007 115,341 5,526 −2 2008 120,948 5,607 1 2009 125,229 4,281 −24 2010 128,999 3,770 −12 2011 132,007 3,008 −20 2012 133,748 1,741 −42 2013 136,094 2,346 35 2014 137,981 1,887 −20 2015 139,862 1,881 0 * Accumulation since 1988.

    Given the role cattle ranching plays in national and international markets and the profitability of ranching, significant expansion of cattle herds in the Brazilian Amazon has continued (Walker et al. 2009, p. 68). The remaining forested areas of Pará are at risk of being cleared; Pará is one of the states where most of Brazil's agriculture expansion is taking place (BBC News 2014, unpaginated). Furthermore, modeled future deforestation is concentrated in eastern Amazonia, which includes Pará, where the density of paved highways (existing and planned) will continue to be highest for several decades (Soares-Filho et al. 2006, p. 522).

    Gerais

    The Gerais region is within the Cerrado biome, a 2-million-km2 (772,204-mi2) area consisting of plateaus and depressions with vegetation that varies from dense grasslands with sparse shrubs and small trees to almost closed woodland (Pinto et al. 2007, p. 14; da Silva 1997, p. 437; Ratter et al. 1997, p. 223). In the Cerrado, hyacinths now mostly nest in rock crevices, most likely a response to the destruction of nesting trees (Collar et al. 1992, p. 255). These crevices will likely remain constant and are not a limiting factor. However, deforestation for agriculture, primarily soy crops, and cattle ranching threaten the remaining native cerrado vegetation, including palm species the hyacinth macaw relies on as a food source.

    Approximately 50 percent of the original Cerrado vegetation has been lost due to conversion to agriculture and pasture, although estimates range up to 80 percent, and the area continues to suffer high rates of habitat loss (Grecchi et al. 2015, p. 2865; Beuchle et al. 2015, p. 121; WWF 2015, p. 2; Soares-Filho et al. 2014, p. 364; Pearce 2011, unpaginated; WWF-UK 2011b, p. 2; Carvalho et al. 2009, p. 1393; BLI 2008, unpaginated; Pinto et al. 2007, p. 14; Klink and Machado 2005, p. 708; Marini and Garcia 2005, p. 667; WWF 2001, unpaginated; da Silva 1997, p. 446, da Silva 1995, p. 298). From 2002 to 2008, the demand for land conversion in the Cerrado resulted in an annual deforestation rate of more than 14,200 km2 (5,483 mi2) (Ministério do Meio Ambiente (MMA) 2015, p. 9; WWF-UK 2011b, p. 2). At this rate, the vegetation of the Cerrado region was disappearing faster than the Amazon rainforest (Pearce 2011, unpaginated; WWF-UK 2011c, p. 19; Pennington et al. 2006 In Beuchle et al. 2015, p. 117; Klink and Machado 2005, p. 708; Ratter et al. 1997, p. 228). However, since that time, the loss of natural vegetation decreased to an estimated 12,949 km2 (4,999 mi2) per year from 2000 to 2005 and 11,812 km2 (4,560 mi2) per year from 2005 to 2010 (Beuchle et al. 2015, pp. 124, 125). Between 2009 and 2010, the deforestation in the Cerrado decreased 16 percent. Compared to the deforestation rates of the early 2000s, deforestation has decreased about 40 percent (Critical Ecosystem Partnership Fund (CEPF) 2016, p. 145).

    Since 2008, annual monitoring of deforestation in the Cerrado has taken place through a government program that monitors each of the Brazilian biomes. Although the annual rate of deforestation is generally decreasing, satellite monitoring of the area indicates a slow and steady increase in deforested area (MMA 2015, p. 9) (Table 2).

    Table 2—Deforestation in the Cerrado (2002-2011) Years assessed Accumulated deforested area
  • (km2)
  • Percent (%) of Cerrado deforested Annual deforested area
  • (km2)
  • Annual deforestation rate (%) Remaining areas of natural vegetation (km2)
    Up to 2002 890,636 43 1,148,750 2002-2008 975,710 47.8 14,179 0.69 1,063,676 2008-2009 983,347 48.2 7,637 0.37 1,056,039 2009-2010 989,816 48.5 6,469 0.32 1,049,570 2010-2011 997,063 48.9 7,247 0.35 1,042,323

    The remaining natural vegetation of the Cerrado is highly fragmented (only 20 percent of the original biome is considered intact) and continues to be pressured by conversion for soy plantations and extensive cattle ranching (WWF-UK 2011c, p. 21; WWF-UK 2011b, p. 2; Carvalho et al. 2009, p. 1393; BLI 2008, unpaginated). About six in every 10 hectares of the Cerrado are suitable for mechanized agriculture (WWF-UK 2011b, p. 2). Maranhão, Tocantins, Piauí, and Bahia, states where hyacinth macaws occur, are undergoing rapid conversion, mostly to soy crops (CEPF 2016, p. 151). Soy production will continue to grow as the beans have many uses for food, feed, and industry in Brazil and abroad (CEPF 2016, p. 152). Furthermore, the Brazilian government has proposed a 731,735 km2-agricultural development, of which 91 percent occurs in the Cerrado, with little regard for the environment, at least as of 2015 (Clark 2015 and Miranda 2015 In CEPF 2016, p. 95). Additionally, the conversion of land for biofuel production is likely imminent, creating a market for the expansion and establishment of new areas for soy, castor beans, other oil-bearing plants, and sugar cane (Carvalho et al. 2009, p. 1400).

    Given that the Cerrado is the most desirable biome for agribusiness expansion and contains approximately 40 million ha (98.8 million ac) of “environmental surplus” that could be legally deforested (See discussion of Brazil's Forest Code, below) (Soares-Filho et al. 2014, p. 364), this region will likely continue to suffer high deforestation rates. Projections for coming decades show the largest increase in agricultural production occurring in the Cerrado (CEPF 2016, p. 145).

    Pantanal

    The Pantanal is a 140,000-km2 (54,054-mi2) seasonally flooded wetland interspersed with higher areas not subject to inundation (cordilleras), covered with cerrado or seasonal forests (Santos Jr. 2008, p. 133; Santos Jr. et al. 2007, p. 127; Harris et al. 2005, p. 715; Mittermeier et al. 1990, p. 103). Transitions during the 1990s to more intensive cattle ranching methods led to the conversion of more forests to pasture and the introduction of nonnative grasses. Ninety-five percent of the Pantanal is privately owned; 80 percent of the privately owned land is used for cattle ranches, making cattle ranching the predominant economic activity in this region and the greatest cause of habitat loss in the Pantanal (van der Meer 2013, p. 5; Guedes and Vicente 2012, pp. 146-147, 148; Guedes 2009, p. 12; Pizo et al. 2008, p. 793; Harris et al. 2006, pp. 165, 175-176; Harris et al. 2005, pp. 715-716, 718; Pinho and Nogueira 2003, p. 30; Seidl et al. 2001, p. 414; Guedes and Harper 1995, p. 396; Mettermeier 1990, pp. 103, 107-108).

    Manduvi, the tree that hyacinth macaws almost exclusively use for nesting in this region, grow in cordilleras, which constitute only 6 percent of the vegetative area of the Pantanal (van der Meer 2013, p. 6; Pizo et al. 2008, p. 793; Johnson et al. 1997, p. 186). Much of these patches and corridors are surrounded by seasonally flooded grasslands used as rangeland for cattle during the dry season (Johnson et al. 1997, p. 186). During the flooding season (January to June), up to 80 percent of the Pantanal is flooded and ranchers move cattle to cordilleras, increasing cattle pressure on upland forests (van der Meer 2013, p. 3; Guedes 2002, p. 3). These upland forests are often removed and converted to cultivated pastures with exotic grasses (van der Meer 2013, p. 6; Santos Jr. 2008, p. 136; Santos Jr. et al. 2007, p. 127; Harris et al. 2006, p. 165; Harris et al. 2005, p. 716; Pinho and Nogueira 2003, p. 30; Seidl et al. 2001, p. 414; Johnson et al. 1997, p. 186). Clearing land to establish pasture is perceived as the economically optimal land use, while land not producing beef is often perceived as unproductive (Seidl et al. 2001, pp. 414-415).

    Since 2002, regular monitoring of land use and vegetative cover in the Upper Paraguay Basin, which includes the Pantanal, has taken place. While the annual rate of deforestation is decreasing, satellite monitoring of the area indicates a slow and steady increase in deforested area (Table 3).

    Table 3—Deforestation in the Pantanal (2002-2014) Years assessed Accumulated deforested area
  • (km2)
  • Percent (%) of Pantanal deforested Annual deforested area
  • (km2)
  • Annual deforestation rate
  • (%)
  • Citation
    2002-2008 20,265 13.4 612 0.41 CI et al. 2009, pp. 30-32. 2008-2010 20,851 13.8 605 0.40 CI et al. 2011, pp. 3-4. 2010-2012 20,833 13.8 389 0.26 CI et al. 2013, pp. 4-5. 2012-2014 22,439 14.9 394 0.26 CI et al. 2015, pp. 2-4.

    When clearing land for pastures, palm trees are often left, as the cattle will feed on the palm nuts (Pinho and Nogueira 2003, p. 36). In fact, hyacinths occur near cattle ranches and feed off the palm nuts eliminated by the cattle (Juniper and Parr 1998, p. 417; Yamashita 1997, pp. 177, 179; Guedes and Harper 1995, pp. 400-401; Collar et al. 1992, p. 254). However, other trees, including potential nesting trees, are often removed (Snyder et al. 2000, p. 119). Even in areas where known nesting trees were left and the surrounding area was cleared, competition with each other and other macaw species became so fierce that hyacinth macaws were unable to reproduce; both eggs and chicks were destroyed by pecking. Furthermore, 3 years after deforestation, the nesting trees that were left were lost due to isolation and damage from storms and wind.

    Other activities associated with cattle ranching, such as the introduction of exotic foraging grasses, grazing, burning, compaction, and fragmentation, can negatively impact the nesting trees of the hyacinth macaw (Guedes 2013, unpaginated; Guedes and Vicente 2012, pp. 149-150; Santos Jr. et al. 2007, p. 128; Harris et al. 2006, p. 175; Snyder et al. 2000, p. 119). For example, fire is a common method for renewing pastures, controlling weeds, and controlling pests (e.g., ticks); however, fires frequently become uncontrolled and are known to enter the patches and corridors of manduvi trees during the dry season (Harris et al. 2005, p. 716; Johnson et al. 1997, p. 186). Although fire can promote cavity formation in manduvi trees, frequent fires can also prevent trees from surviving to a size capable of providing suitable cavities, and can cause a high rate of nesting tree loss (Guedes 1993 in Johnson et al. 1997, p. 187). Guedes (Guedes and Vicente 2012, p. 157; 1995 in Santos Jr. et al. 2006, pp. 184-185) noted that 5 percent of manduvi trees are lost each year to deforestation, fire, and storms.

    In addition to the direct removal of trees and the impact of fire on recruitment of manduvi trees, cattle themselves have impacted the density of manduvi seedlings in the Pantanal. Cattle forage on and trample manduvi seedlings, affecting the recruitment of this species to a size large enough to accommodate hyacinths (Pizo et al. 2008, p. 793; Johnson et al. 1997, p. 187; Mettermeier et al. 1990, p. 107). Only those manduvi trees 60 years old or older are capable of providing these cavities (Pizo et al. 2008, p. 792; Santos Jr. et al. 2006, p. 185). The minimum diameter at breast height (DBH) for trees to potentially contain a cavity suitable for hyacinth macaws is 50 cm (20 in), while all manduvi trees greater than 100 cm (39 in) DBH contain suitable nest cavities. However, there is low recruitment of manduvi trees in classes greater than 5 cm (2 in) DBH, a strong reduction in the occurrence of trees greater than 50 cm (20 in) DBH, and very few trees greater than 110 cm (43 in) DBH (Santos Jr. et al. 2007, p. 128). Only 5 percent of the existing adult manduvi trees (trees with a DBH greater than 50 cm (20 in)) in south-central Pantanal (Guedes 1993 in Johnson et al. 1997, p. 186), and 10.7 percent in southern Pantanal (van der Meer 2013, p. 16), contain suitable cavities for hyacinth macaws. This finding indicates that potential nesting sites are rare and will become increasingly rare in the future (Santos Jr. et al. 2007, p. 128).

    Impacts of Deforestation

    Because the hyacinth is highly specialized in both diet and nesting sites, it is particularly vulnerable to the loss of these resources and extinction (Faria et al. 2008, p. 766; Pizo 2008, p. 795; Munn et al. 1998, pp. 404, 409; Johnson et al. 1997, p. 186). The loss of tree species used by hyacinths negatively impacts the species by reducing availability of food resources, creating a shortage of suitable nesting sites, increasing competition, and resulting in lowered recruitment and a reduction in population size (Lee 2010, pp. 2, 6, 12; Santos Jr. et al. 2007, p. 128; Johnson et al. 1997, p. 188).

    Its specialized diet makes hyacinth macaws vulnerable to changes in food availability. Inadequate nutrition can contribute to poor health and reduced reproduction in parrots generally (McDonald 2003 In Lee 2010, p. 6). Changes in fruit availability are known to decrease reproduction in hyacinths (Guedes 2009, pp. 42-43, 44). In Pará and the Gerais region, where food sources are threatened, persistence of the species is a concern given that one of the major factors thought to have contributed to the critically endangered status of the Lear's macaw (Anodorhynchus leari) is the loss of its specialized food source, licuri palm stands (Syagrus sp.), to cattle grazing (Collar et al. 1992, p. 257).

    Hyacinths can tolerate a certain degree of human disturbance at their breeding sites (Pinho and Noguiera 2003, p. 36); however, the number of usable cavities increases with the age of the trees in the forest (Newton 1994, p. 266), and clearing land for agriculture and cattle ranching, cattle trampling and foraging, and burning of forest habitat result in the loss of mature trees with natural cavities of sufficient size and a reduction in recruitment of native species, which could eventually provide nesting cavities.

    A shortage of nest sites can jeopardize the persistence of the hyacinth macaw by constraining breeding density, resulting in lower recruitment and a gradual reduction in population size (Santos Jr. et al. 2007, p. 128; Johnson et al. 1997, p. 188; Guedes and Harper 1995, p. 405; Newton 1994, p. 265). This reduction may lead to long-term effects on the viability of the hyacinth macaw population, especially in Pará and the Pantanal where persistence of nesting trees is compromised (Santos Jr. et al. 2007, p. 128; Santos Jr. et al. 2006, p. 181).

    Although a species may survive the initial shock of deforestation, the resulting lack of food resources and breeding sites may reduce the viability of the population and make the species vulnerable to extinction (Sodhi et al. 2009, p. 517). Given the land-use trends across the range of the hyacinth macaw, the continued availability of food and nesting resources is of great concern.

    In response to the loss of its nesting tree, hyacinths in the Gerais region now use rock crevices for nesting. Hyacinths have been reported in various trees species and even on cliffs on the border of the Pantanal; however, the majority of their nests are in Brazil nut (in Pará) and manduvi (in the Pantanal) (see Essential Needs of the Species). We do not know if the hyacinths in this region will respond in the same way to the loss of nesting trees as those in the Gerais region. It is possible that if these primary nesting trees become scarcer, hyacinths may adapt to using cavities of other trees (Van der Meer 2013, p. 3) or perhaps even cliff faces. However, to accommodate their large size, hyacinth macaws require older trees with large cavities. Deforestation in these regions would likely impact any alternative nesting trees and food sources, resulting in the same negative effect on the hyacinth macaw. Furthermore, competition for limited nesting sites and food would continue.

    Regulatory Protections

    In general, wildlife species and their nests, shelters, and breeding grounds are subject to Brazilian laws designed to provide protection (Clayton 2011, p. 4; Snyder et al. 2000, p. 119; Environmental Crimes Law (Law No. 9605/98); Stattersfield and Capper 1992, p. 257; Official List of Brazilian Endangered Animal Species (Order No. 1.522/1989); Brazilian Constitution (Title VIII, Chapter VI, 1988); Law No. 5197/1967; UNEP, n.d., unpaginated). Additionally, the forests of Brazil are specifically subject to several Brazilian laws designed to protect them. Destruction and damaging of forest reserves, cutting trees in forest reserves, and causing fire in forests, among other actions, without authorization are prohibited (Clayton 2011, p. 5; Environmental Crimes Law (Law No. 9605/98); UNEP, n.d., unpaginated).

    Brazil's Forest Code, passed in 1965, is a central component of the nation's environmental legislation; it dictates the minimum percentage and type of woodland that farmers, timber companies, and others must leave intact on their properties (Barrionuevo 2012, unpaginated; Boadle 2012, unpaginated). Since 2001, the Forest Code has required landowners to conserve native vegetation on their rural properties. This requirement includes setting aside a Legal Reserve that comprises 80 percent of the property if it is located in the Amazon and 20 percent in other biomes. The Forest Code also designated environmentally sensitive areas as Areas of Permanent Preservation (APPs) to conserve water resources and prevent soil erosion. APPs include Riparian Preservation Areas, to protect riverside forest buffers, and Hilltop Preservation Areas to protect hilltops, high elevations, and steep slopes (Soares-Filho et al. 2014, p. 363).

    For years this law was widely ignored by landowners and not enforced by the government, as evidenced by the high deforestation rates (Leahy 2011, unpaginated; Pearce 2011, unpaginated; Ratter et al. 1997, p. 228). However, as deforestation rates increased in the early 2000s, Brazil began cracking down on illegal deforesters and used satellite imagery to track deforestation, resulting in decreased deforestation rates (Soares-Filho et al. 2014, p. 363; Barrionuevo 2012, unpaginated; Boadle 2012, unpaginated; Darlington 2012, unpaginated). Efforts to strengthen enforcement of the Forest Code increased pressure on the farming sector, which resulted in a backlash against the Forest Code and industry's proposal of a new Forest Code (Soares-Filho et al. 2014, p. 363).

    In 2011, reforms to Brazil's Forest Code were debated in the Brazilian Senate. The reforms were favored by the agricultural industry but were greatly opposed by environmentalists. At that time, the expectation of the bill being passed resulted in a spike in deforestation (Darlington 2012, unpaginated; Moukaddem 2011, unpaginated; WWF-UK 2011a, unpaginated). In 2012, a new Forest Code was passed; although the new reforms were an attempt at a compromise between farmers and environmentalists, many claim the new bill reduces the total amount of land required to be maintained as forest and will increase deforestation, especially in the Cerrado (Soares-Filho et al. 2014, p. 364; Boadle 2012, unpaginated; Darlington 2012, unpaginated; do Valle 2012, unpaginated; Greenpeace 2012, unpaginated).

    Environmentalists oppose the new law due to the complexity of the rule, challenges in implementation, and a lack of adequate protection of Brazil's forests. The new Forest Code carries over conservation requirements for Legal Reserves and Riparian Preservation Areas. However, changes in the definition of Hilltop Preservation Areas reduced their total area by 87 percent. Additionally, due to more flexible protections and differentiation between conservation and restoration requirements, Brazil's environmental debt (areas of Legal Reserve and Riparian Preservation Areas deforested illegally before 2008 that, under the previous Forest Code, would have required restoration at the landowner's expense) was reduced by 58 percent (Soares-Filho et al. 2014, p. 363). The legal reserve debt was forgiven for “small properties,” which ranged from 20 ha (49 ac) in southern Brazil to 440 ha (1,087 ac) in the Amazon; this provision has resulted in approximately 90 percent of Brazilian rural properties qualifying for amnesty.

    Further reductions in the environmental debt resulted from: (1) Reducing the Legal Reserve restoration requirement from 80 percent to 50 percent in Amazonian municipalities that are predominately occupied by protected areas; (2) including Riparian Preservation Areas in the calculation of the Legal Reserve area (total area they are required to preserve); and (3) relaxing Riparian Preservation Area restoration requirements on small properties. These new provisions effectively reduced the total amount of land farmers are required to preserve and municipalities and landowners are required to restore. Reductions were uneven across states and biomes, with the Amazon and Cerrado biomes being two of the three biomes most affected and vulnerable to deforestation.

    Altogether, provisions of the new Forest Code have reduced the total area to be restored from approximately 50 million ha (123.5 million ac) to approximately 21 million ha (51.8 million ac) (Soares-Filho et al. 2014, p. 363; Boadle 2012, unpaginated). Furthermore, the old and new Forest Codes allow legal deforestation of an additional 88 million ha (217.4 million ac) on private properties deemed to constitute an “environmental surplus.” “Environmental surplus” areas are those that are not conserved by the Legal Reserve and Riparian Preservation Area conservation requirements. The Cerrado alone contains approximately 40 million ha (98.8 million ac) of environmental surplus that could be legally deforested (Soares-Filho et al. 2014, p. 364).

    Although the Forest Code reduces restoration requirements, it introduces new mechanisms to address fire management, forest carbon, and payments for ecosystem services, which could reduce deforestation and result in environmental benefits. The most important mechanism may be the Environmental Reserve Quota (ERQ). The ERQ is a tradable legal title to areas with intact or regenerating native vegetation exceeding the Forest Code requirements. It provides the opportunity for landowners who, as of July 2008 did not meet the area-based conservation requirements of the law, to instead “compensate” for their legal reserve shortages by purchasing surplus compliance obligations from properties that would then maintain native vegetation in excess of the minimum legal reserve requirements. This mechanism could provide forested lands with monetary value, creating a trading market. The ERQ could potentially reduce 56 percent of the Legal Reserve debt (Soares-Filho et al. 2014, p. 364).

    The new Forest Code requires landowners to take part in a Rural Environmental Registry System, a mapping and registration system for rural properties that serves as a means for landowners to report their compliance with the code in order to remain eligible for state credit and other government support. On May 6, 2014, the Ministry for the Environment published a regulation formally implementing the Rural Environmental Registry and requiring all rural properties be enrolled by May 2015. However, on May 5, 2015, the deadline was extended to May 4, 2016. According to information provided by the Ministry for the Environment, at that time 1,407,206 rural properties had been registered since the New Code became effective. This number covers an area of 196,767,410 hectares and represents 52% of all rural areas in Brazil for which registration is mandatory (Filho et al. 2015, unpaginated). This system could facilitate the market for ERQs and payments for ecosystem services.

    It is unclear whether the Brazilian Government will be able to effectively enforce the new law (Barrionuevo 2012, unpaginated; Boadle 2012, unpaginated; Greenpeace 2012, unpaginated). The original code was largely ignored by landowners and not enforced, leading to Brazil's high rates of deforestation (Boadle 2012, unpaginated). Although Brazil's deforestation rates declined between 2005 and 2010, 2011 marked the beginning of an increase in rates due to the expectation of the new Forest Code being passed. Another slight increase occurred in 2013, then doubled over 6 months (Schiffman 2015, unpaginated). Corruption in the government, land fraud, and a sense of exemption from penalties for infractions, have contributed to increases in illegal deforestation (Schiffman 2015, unpaginated). Additionally, amnesty afforded by the new Forest Code has led to the perception that illegal deforesters are unlikely to be prosecuted or could be exonerated in future law reforms (Schiffman 2015, unpaginated; Soares-Filho et al. 2014, p. 364). Enforcement is often non-existent in Brazil as IBAMA is underfunded and understaffed. Only 1 percent of the fines IBAMA imposed on individuals and corporations for illegal deforestation is actually collected (Schiffman 2015, unpaginated). In Para, one of two states where most of the clearing is occurring, 78 percent of logging between August 2011 and July 2012 was illegal (Schiffman 2015, unpaginated). Furthermore, while much logging is being conducted illegally, there is concern that even if regulations are strictly adhered to, the development is not sustainable (Schiffman 2015, unpaginated).

    Additionally, State laws designed to protect the habitat of the hyacinth macaw are in place. To protect the main breeding habitat of the hyacinth macaw, Mato Grosso State Senate passed State Act 8.317 in 2005, which prohibits the cutting of manduvi trees, but not others. Although this law protects nesting trees, other trees around nesting trees are cut, exposing the manduvi tree to winds and storms. Manduvi trees end up falling or breaking, rendering them useless for the hyacinths to nest in (Santos Jr. 2008, p. 135; Santos Jr. et al. 2006, p. 186).

    Although laws are in place to protect the forests of Brazil, lack of supervision and lack of resources prevent these laws from being properly implemented (Guedes 2012, p. 3). Ongoing deforestation in the Amazon, Cerrado, and Pantanal are evidence that existing laws are not being adequately enforced. Without greater enforcement of laws, deforestation will continue to impact the hyacinth macaw and its food and nesting resources.

    Habitat loss for the hyacinth macaw continues despite regulatory mechanisms intended to protect Brazil's forests. As described above, the hyacinth's food and nesting trees are removed for agriculture and cattle ranching and fire is used to clear land and maintain pastures. The original Forest Code was not properly enforced and, thus was not adequately protective. It is questionable whether the new Forest Code will be effectively enforced. Regardless of enforcement, given the provisions of the new Forest Code, some level of deforestation is highly likely to continue and will continue to compromise the status of the species.

    Climate Change

    Changes in Brazil's climate and associated changes to the landscape may result in additional habitat loss for the hyacinth macaw. Across Brazil, temperatures are projected to increase and precipitation to decrease (Carabine and Lemma 2014, p. 11; Siqueira and Peterson 2003, p. 2). The latest Intergovernmental Panel on Climate Change assessment estimates temperature changes in South America by 2100 to range from 1.7 to 6.7 °C (3.06 to 12.06 °F) under medium and high emission scenarios and 1 to 1.5 °C (1.8 to 2.7 °F) under a low emissions scenario (Magrin et al. 2014, p. 1502; Carabine and Lemma 2014, p. 10). Projected changes in rainfall in South America vary by region. Reductions are estimated for northeast Brazil and the Amazon (Magrin et al. 2014, p. 1502; Carabine and Lemma 2014, pp. 10, 11). At a national level, climate change may induce significant reductions in forestland in all Brazilian regions (Féres et al. 2009, pp. 12, 15).

    Temperature increases in Brazil are expected to be greatest over the Amazon rainforest, where Pará is located, with models indicating a strong warming and drying of this region during the 21st Century, particularly after 2040 (Marengo et al. 2011, pp. 8, 15, 27, 39, 48; Féres et al. 2009, p. 2). Estimates of temperature changes in Amazonia are 2.2 °C (4 °F) under a low greenhouse gas emission scenario and 4.5 °C (8 °F) under a high-emission scenario by the end of the 21st Century (2090-2099) (Marengo et al. 2011, p. 27). Several models simulating varying amounts of global warming indicate Amazonia is at a high risk of forest loss and more frequent wildfires (Magrin et al. 2007, p. 596). Some leading global circulation models suggest extreme weather events, such as droughts, will increase in frequency or severity due to global warming. As a result, droughts in Amazonian forests could become more severe in the future (Marengo et al. 2011, p. 48; Laurance et al. 2001, p. 782). For example, the 2005 drought in Amazonia was a 1-in-20-year event; however, those conditions may become a 1-in-2-year event by 2025 and a 9-in-10-year event by 2060 (Marengo et al. 2011, p. 28). Impacts of deforestation are greater under drought conditions as fires set for forest clearances burn larger areas (Marengo et al. 2011, p. 16). Additionally, drought increases the vulnerability of seasonal forests of the Amazon, such as those found in eastern Amazonia, to wildfires during droughts (Laurance et al. 2001, p. 782).

    Previous work has indicated that, under increasing temperature and decreasing rainfall conditions, the rainforest of the Amazon could be replaced with different vegetation. Some models have predicted a change from forests to savanna-type vegetation over parts of, or perhaps the entire, Amazon in the next several decades (Magrin et al. 2014, p. 1523; Marengo et al. 2011, pp. 11, 18, 29, 43; Magrin et al. 2007, pp. 583, 596). In the regions where the hyacinth macaw occurs, the climate features a dry season, which prevents the growth of an extensive closed-canopy tropical forest. Therefore, the transition of the Amazon rainforests could provide additional suitable habitat for the hyacinth macaw. However, we do not know how the specific food and nesting resources the hyacinth macaw uses will be impacted if there is an increase in the dry season. Furthermore, there are uncertainties in this modeling, and the projections are not definitive outcomes. In fact, some models indicate that conditions are likely to get wetter in Amazonia in the future (Marengo et al. 2011, pp. 28-29). These uncertainties make it challenging to predict the likely effects of continued climate change on the hyacinth macaw.

    Temperatures in the Cerrado, which covers the Gerais region, are also predicted to increase; the maximum temperature in the hottest month may increase by 4 °C (7.2 °F) and by 2100 may increase to approximately 40 °C (104 °F) (Marini et al. 2009, p. 1563). Along with changes in temperature, other models have predicted a decrease in tree diversity and range sizes for birds in the Cerrado.

    Projections based on a 30-year average (2040-2069) indicate serious effects to Cerrado tree diversity in coming decades (Marini et al. 2009, p. 1559; Siqueira and Peterson 2003, p. 4). In a study of 162 broad-range tree species, the potential distributional area of most trees was projected to decline by more than 50 percent. Using two climate change scenarios, 18-56 species were predicted to go extinct in the Cerrado, while 91-123 species were predicted to decline by more than 90 percent in the potential distributional area (Siqueira and Peterson 2003, p. 4).

    Of the potential impacts of predicted climate-driven changes on bird distribution, extreme temperatures seemed to be the most important factor limiting distribution, revealing their physiological tolerances (Marini et al. 2009, p. 1563). In a study on changes in range sizes for 26 broad-range birds in the Cerrado, range sizes are expected to decrease over time, and significantly so as soon as 2030 (Marini et al. 2009, p. 1564). Changes ranged from a 5 percent increase to an 80 percent decrease under two dispersal scenarios for 2011-2030, 2046-2065, and 2080-2099 (Marini et al. 2009, p. 1561). The largest potential loss in range size is predicted to occur among grassland and forest-dependent species in all timeframes (Marini et al. 2009, p. 1564). These species will likely have the most dire future conservation scenarios because these habitat types are the least common (Marini et al. 2009, p. 1559). Although this study focused on broad-range bird species, geographically restricted birds, such as hyacinth macaw, are predicted to become rarer (Marini et al. 2009, p. 1564).

    Whether species will or will not adapt to new conditions is difficult to predict; synergistic effects of climate change and habitat fragmentation, or other factors, such as biotic interactions, may hasten the need for conservation even more (Marini et al. 2009, p. 1565). Although there are uncertainties in the climate change modeling discussed above, the overall trajectory is one of increased warming under all scenarios. Species, like the hyacinth macaw, whose habitat is limited, population is reduced, are large in physical size, and are highly specialized, are more vulnerable to climatic variations and at a greater risk of extinction (Guedes 2009, p. 44).

    We do not know how the habitat of the hyacinth macaw may change under these conditions, but we can assume some change will occur. The hyacinth macaw is experiencing habitat loss due to widespread expansion of agriculture and cattle ranching. Climate change has the potential to further decrease the specialized habitat needed by the hyacinth macaw; the ability of the hyacinth macaw to cope with landscape changes due to climate change is questionable given the specialized needs of the species. Furthermore, one of the factors that affected reproductive rates of hyacinths in the Pantanal was variations in temperature and rainfall (Guedes 2009, p. 42). Hotter, drier years, as predicted under different climate change scenarios, could result in greater impacts to hyacinth reproduction due to impacts on the fruit and foraging for the hyacinth macaw and competition with other bird and mammal species for limited resources (See Other Factors Affecting Reproductive Rates).

    Hunting

    In Pará and the Gerais region, hunting removes individual hyacinth macaws vital to the already small populations (Brouwer 2004, unpaginated; Collar et al. 1992, p. 257; Munn et al. 1989, p. 414). Hyacinths in Pará are hunted for subsistence and the feather trade by some Indian groups (Brouwer 2004, unpaginated; Munn et al. 1989, p. 414). Because the hyacinth is the largest species of macaw, it may be targeted by subsistence hunters, especially by settlers along roadways (Collar et al. 1992, p. 257). Additionally, increased commercial sale of feather art by Kayapo Indians of Gorotire may be of concern given that 10 hyacinths are required to make a single headdress (Collar et al. 1992, p. 257). The Gerais region is poor and animal protein is not as abundant as in other regions; therefore, meat of any kind, including the large hyacinth macaw, is sought as a protein source (Collar et al. 1992, p. 257; Munn et al. 1989, p. 414).

    Because the hyacinth macaw populations in Pará and the Gerais region are estimated at only 1,000-1,500 individuals, combined, the removal of any individuals from these small populations has a negative effect on reproduction and the ability of the species to recover. Any continued hunting for either meat or the sale of feather art is likely to contribute to the decline of the hyacinth macaw in these regions, particularly when habitat conversion is also taking place.

    Hunting, capture, and trade of animal species is prohibited without authorization throughout the range of the hyacinth macaw (Clayton 2011, p. 4; Snyder et al. 2000, p. 119; Environmental Crimes Law (Law No. 9605/98); Stattersfield and Capper 1992, p. 257; Munn et al. 1989, p. 415; Official List of Brazilian Endangered Animal Species (Order No. 1.522/1989); Brazilian Constitution (Title VIII, Chapter VI, 1988); Law No. 5197/1967; UNEP, n.d., unpaginated). However, continued hunting in some parts of its range is evidence that existing laws are not being adequately enforced. Without greater enforcement of laws, hunting will continue to impact the hyacinth macaw.

    Low Reproductive Rates

    As described above, the specialized nature and reproductive biology of the hyacinth macaw contribute to low recruitment of juveniles and decrease the ability to recover from reductions in population size caused by anthropogenic disturbances (Faria et al. 2008, p. 766; Wright et al. 2001, p. 711). This species' vulnerability to extinction is further heightened by deforestation that negatively affects the availability of essential food and nesting resources. In addition to direct impacts on food and nesting resources and hyacinth macaws themselves, several other factors affect the reproductive success of the hyacinth. In the Pantanal, competition, predation, disease, destruction or flooding of nests, and climatic conditions and variations are major factors affecting reproductive success of the hyacinth macaw (Guedes 2009, pp. 5, 8, 42; Guedes 2004b, p. 7).

    In the Pantanal, competition for nesting sites is intense. The hyacinth nests almost exclusively in manduvi trees; however, there are 17 other bird species, small mammals, and honey bees (Apis melifera) that also use manduvi cavities (Guedes and Vicente 2012, pp. 148, 157; Guedes 2009, p. 60; Pizo et al 2008, p. 792; Pinho and Nogueira 2003, p. 36). Bees are even known to occupy artificial nests that could be used by hyacinth macaws (Pinho and Nogueira 2003, p. 33; Snyder et al. 2000, p. 120). Manduvi is a key species for the hyacinth, and, as discussed above, these cavities are already limited and there is evidence of decreased recruitment of this species of tree (Santos Jr. et al. 2006, p. 181). Competition for nesting cavities is exacerbated because manduvi trees must be at least 60 years old, and on average 80 years old, to produce cavities large enough to be used by the hyacinth macaw (Guedes 2009, pp. 59-60; Pizo et al. 2008, p. 792; Santos Jr. et al. 2006, p. 185). Given that there is currently a limited number of manduvi trees in the Pantanal of adequate size capable of accommodating the hyacinth macaw, evidence of reduced recruitment of these sized manduvi, and numerous species that also use this tree, competition will certainly increase as the number of manduvi decreases, further affecting reproduction by limiting tree cavities available to the hyacinth macaw for nesting (Guedes 2009, p. 60). Furthermore, a shortage of suitable nesting sites could lead to increased competition resulting in an increase in infanticide and egg destruction by other hyacinths and other macaw species (Lee 2010, p. 2). Black vultures (Coragyps atratus), collared forest falcons (Micrastur semitorquatus), and red-and-green macaws (Ara chloropterus) break hyacinth macaw eggs when seeking nesting cavities (Guedes 2009, p. 75).

    A 10-year study conducted in the Miranda region of the Pantanal concluded that the majority of hyacinth macaw nests (63 percent) failed, either partially or totally, during the egg phase. Predation accounted for 52 percent of lost eggs (Guedes 2009, pp. 5, 74). Of 582 eggs monitored over 6 years in the Nhecolândia region of the Pantanal, approximately 24 percent (138 eggs) were lost to predators (Pizo et al. 2008, pp. 794, 795). Researchers have identified several predators of hyacinth eggs, including toco toucans (Ramphastos toco), purplish jays (Cyanocorax cyanomelas), white-eared opossums (Didelphis albiventris), and coatis (Nasua nasua) (Guedes 2009, pp. 5, 23, 46, 58, 74-75; Pizo et al. 2008, p. 795). The toco toucan was the main predator, responsible for 12.4 percent of the total eggs lost and 53.5 percent of the eggs lost annually in the Nhecolândia region (Pizo et al. 2008, pp. 794, 795). Most predators leave some sort of evidence behind; however, toco toucans are able to swallow hyacinth macaw eggs whole, leaving no evidence behind. This ability may lead to an underestimate of nest predation by toucans (Pizo et al. 2008, p. 793).

    The remaining eggs that were considered lost during the 10-year study of the Miranda region did not hatch due to infertility, complications during embryo development, inexperience of young couples that accidentally smash their own eggs while entering and exiting the nest, breaking by other bird and mammal species wanting to occupy the nesting cavity, and broken trees and flooding of nests (Guedes 2009, p. 75).

    Guedes (2009, pp. 66, 79) also found in the 10-year study of the Miranda region that, of the nests that successfully produced chicks, 49 percent experienced a total or partial loss of chicks. Of these, 62 percent were lost due to starvation, low temperature, disease or infestation by ectoparasites, flooding of nests, and breaking of branches. Thirty-eight percent were lost due to predation of chicks by carnivorous ants (Solenopis spp.), other insects, collared forest falcon, and spectacled owl (Pulsatrix perspicillata). The toco toucan and great horned owl (Bubo virginianus) are also suspected of chick predation, but this has not yet been confirmed (Guedes 2009, pp. 6, 79-81; Pizo et al. 2008, p. 795).

    Variations in temperature and rainfall were also found to be factors affecting reproduction of the hyacinth in the Pantanal (Guedes 2009, p. 42). Years with higher temperatures and lower rainfall can affect the production of fruits and foraging and, therefore, lead to a decrease in reproduction of hyacinths the following year (Guedes 2009, pp. 42-43, 44). This outcome is especially problematic for a species that relies on only two species of palm nuts as a source of food. Competition with other bird and mammal species may also increase during these years. Acuri are available year round, even during times of fruit scarcity, making it a resource many other species also depend on during unfavorable periods (Guedes 2009, p. 44). Additionally, the El Niño event during the 1997-98 breeding season caused hotter, wetter conditions favoring breeding, but survival of the chicks was reduced. In 1999, a longer breeding period was observed following drier, colder conditions caused by the La Niña that same year; however, 54 percent of the eggs were lost that year (Guedes 2009, p. 43).

    Conservation Measures

    The main biodiversity protection strategy in Brazil is the creation of Protected Areas (National Protected Areas System) (Federal Act 9.985/00) (Santos Jr. 2008, p. 134). Various regulatory mechanisms (Law No. 11.516, Act No. 7.735, Decree No. 78, Order No. 1, and Act No. 6.938) in Brazil direct Federal and State agencies to promote the protection of lands and govern the formal establishment and management of protected areas to promote conservation of the country's natural resources (ECOLEX 2007, pp. 5-7). These mechanisms generally aim to protect endangered wildlife and plant species, genetic resources, overall biodiversity, and native ecosystems on Federal, State, and privately owned lands (e.g., Law No. 9.985, Law No. 11.132, Resolution No. 4, and Decree No. 1.922). Brazil's Protected Areas were established in 2000 and may be categorized as “strictly protected” or “sustainable use” based on their overall management objectives. Strictly protected areas include national parks, biological reserves, ecological stations, natural monuments, and wildlife refuges protected for educational and recreational purposes and scientific research. Protected areas of sustainable use (national forests, environmental protection areas, areas of relevant ecological interest, extractive reserves, fauna reserves, sustainable development reserves, and private natural heritage reserves) allow for different types and levels of human use with conservation of biodiversity as a secondary objective. As of 2005, Federal and State governments strictly protected 478 areas totaling 37,019,697 ha (14,981,340 ac) in Brazil (Rylands and Brandon 2005, pp. 615-616). Other types of areas contribute to the Brazilian Protected Areas System, including indigenous reserves and areas managed and owned by municipal governments, nongovernmental organizations, academic institutions, and private sectors (Rylands and Brandon 2005, p. 616).

    The states where the hyacinth macaw occurs contain 53 protected areas (Parks.it nd, unpaginated); however, the species occurs in only 3 of those areas (BLI 2014b, unpaginated; Collar et al. 1992, p. 257). The Amazon contains a balance of strictly prohibited protected areas (49 percent of protected areas) and sustainable use areas (51 percent) (Rylands and Brandon 2005, p. 616). We found no information on the occurrence of the hyacinth macaw in any protected areas in Pará. The Cerrado biome is one of the most threatened biomes and is underrepresented among Brazilian protected areas; only 2.25 percent of the original extent of the Cerrado is protected (Marini et al. 2009, p. 1559; Klink and Machado 2005, p. 709; Siqueira and Peterson 2003, p. 11). Within the Cerrado, the hyacinth macaw is found within the Araguaia National Park in Goiás and the Parnaíba River Headwaters National Park (BLI 2014b; Ridgely 1981, p. 238). In 2000, the Pantanal was designated as a Biosphere Reserve by UNESCO (Santos Jr. 2008, p. 134). Only 4.5 percent of the Pantanal is categorized as protected areas (Harris et al. 2006, pp. 166-167), including strictly protected areas and indigenous areas (Klink and Machado 2005, p. 709). Within these, the hyacinth macaw occurs only within the Pantanal National Park (Collar et al 1992; Ridgely 1981, p. 238). The distribution of Federal and State protected areas are uneven across biomes, yet all biomes need substantially more area to be protected to meet the recommendations established in priority-setting workshops. These workshops identified 900 areas for conservation of biodiversity and all biomes, including the Amazon, Cerrado, and Pantanal (Rylands and Brandon 2005, pp. 615-616).

    Many challenges limit the effectiveness of the protected areas system. Brazil is faced with competing priorities of encouraging development for economic growth and resource protection. In the past, the Brazilian Government, through various regulations, policies, incentives, and subsidies, has actively encouraged settlement of previously undeveloped lands, which facilitated the large-scale habitat conversions for agriculture and cattle-ranching that occurred throughout the Amazon, Cerrado, and Pantanal biomes (WWF-UK 2011b, p. 2; WWF 2001, unpaginated; Arima and Uhl, 1997, p. 446; Ratter et al. 1997, pp. 227-228). However, the risk of intense wild fires may increase in areas, such as protected areas, where cattle are removed and the resulting accumulation of plant biomass serves as fuel (Santos Jr. 2013, pers. comm.; Tomas et al. 2011, p. 579).

    The Ministry of Environment is working to increase the amount of protected areas in the Pantanal and Cerrado regions; however, the Ministry of Agriculture is looking at using an additional 1 million km2 (386,102 mi2) for agricultural expansion, which will speed up deforestation (Harris et al. 2006, p. 175). These competing priorities make it difficult to enact and enforce regulations that protect the habitat of this species. Additionally, after the creation of protected areas, a delay in implementation or a lack of local management commitment often occurs, staff limitations make it difficult to monitor actions, and a lack of acceptance by society or a lack of funding make administration and management of the area difficult (Santos Jr. 2008, p. 135; Harris et al. 2006, p. 175). Furthermore, ambiguity in land titles allows illegal occupation and clearing of forests in protected areas, such as federal forest reserves (Schiffman 2015, unpaginated). The designation of the Pantanal as a Biosphere Reserve is almost entirely without merit because of a lack of commitment by public officials (Santos Jr. 2008, p. 134).

    Of 53 designated protected areas within the states in which the hyacinth macaw occurs, it is found in only 3 National Parks; none of which are effectively protected (Rogers 2006, unpaginated; Ridgely 1981, p. 238). The hyacinth macaw continues to be hunted in Pará and the Gerais region, and habitat loss due to agricultural expansion and cattle ranching is occurring in all three regions. Therefore, it appears that Brazil's protected areas system does not adequately protect the hyacinth macaw or its habitat.

    In addition to national and state laws, the Brazilian Government and nongovernmental organizations have developed plans for protecting the forests of Brazil. In 2009, Brazil announced a plan to cut deforestation rates by 80 percent by 2020 with the help of international funding; Brazil's plan calls on foreign countries to fund $20 billion U.S. dollars (USD) (Marengo et al. 2011, p. 8; Moukaddem 2011, unpaginated; Painter 2008, unpaginated). If Brazil's plan is implemented and the goal is met, deforestation in Brazil would be significantly reduced. Between 2005 and 2010, Brazil reduced deforestation rates by more than three-quarters. Most of the decrease took place within the Amazon Basin. However, deforestation increased slightly in 2013, then doubled in 6 months in 2014-2015 (Schiffman 2015, unpaginated).

    Brazil's Ministry of Environment and The Nature Conservancy have worked together to implement the Farmland Environmental Registry to curb illegal deforestation in the Amazon. This program was launched in the states of Mato Grosso and Pará; it later became the model for the Rural Environmental Registry that monitors all of Brazil for compliance with the Forest Code. This plan helped Paragominas, a municipality in Pará, be the first in Brazil to come off the government's blacklist of top Amazon deforesters. After 1 year, 92 percent of rural properties in Paragominas had been entered into the registry, and deforestation was cut by 90 percent (Dias and Ramos 2012, unpaginated; Vale 2010, unpaginated). In response to this success, Pará launched its Green Municipalities Program in 2011. The purpose of this project is to reduce deforestation in Pará by 80 percent by 2020 and strengthen sustainable rural production. To accomplish this goal, the program seeks to create partnerships between local communities, municipalities, private initiatives, IBAMA, and the Federal Public Prosecution Service and focus on local pacts, deforestation monitoring, implementation of the Rural Environmental Registry, and structuring municipal management (Veríssimo et al. 2013, pp. 3, 6, 12-13). The program aims to show how it is possible to develop a new model for an activity identified as a major cause of deforestation (Dias and Ramos 2012, unpaginated; Vale 2010, unpaginated).

    Awareness of the urgency in protecting the biodiversity of the Cerrado biome is increasing (Klink and Machado 2005, p. 710). The Brazilian Ministry of the Environment's National Biodiversity Program and other government-financed institutes such as the Brazilian Environmental Institute, Center for Agriculture Research in the Cerrado, and the National Center for Genetic Resources and Biotechnology, are working together to safeguard the existence and viability of the Cerrado. Additionally, nongovernmental organizations such as Fundaço Pró-Natureza, Instituto Sociedade População e Natureza, and World Wildlife Fund have provided valuable assessments and are pioneering work in establishing extractive reserves (Ratter et al. 1997, pp. 228-229). Other organizations are working to increase the area of Federal Conservation Units, a type of protected area, that currently represent only 1.5 percent of the biome (Ratter et al. 1997, p. 229).

    A network of nongovernmental organizations, Rede Cerrado, has been established to promote local sustainable-use practices for natural resources (Klink and Machado 2005, p. 710). Rede Cerrado provided the Brazilian Ministry of the Environment recommendations for urgent actions for the conservation of the Cerrado. As a result, a conservation program was established to integrate actions for conservation in regions where agropastoral activities were especially intense and damaging (Klink and Machado 2005, p. 710). Conservation International, The Nature Conservancy, and World Wildlife Fund have worked to promote alternative economic activities, such as ecotourism, sustainable use of fauna and flora, and medicinal plants, to support the livelihoods of local communities (Klink and Machado 2005, p. 710). Although these programs demonstrate awareness of the need for protection and efforts in protecting the Cerrado, we have no details on the specific work or accomplishments of these programs, or how they would affect, or have affected, the hyacinth macaw and its habitat.

    The Brazilian Government, under its Action Plan for the Prevention and Control of Deforestation and Burning in the Cerrado—Conservation and Development (2010), committed to recuperating at least 8 million ha (20 million ac) of degraded pasture by the year 2020, reducing deforestation by 40 percent, decreasing forest fires, expanding sustainable practices, and monitoring remaining natural vegetation. It also planned to expand the areas under protection in the Cerrado to 2.1 million ha (5 million ac) (Ribeiro et al. 2012, p. 11; WWF-UK 2011b, p. 4). However, we do not have details on the success of the action plan or the progress on expanding protected areas.

    In 1990, the Hyacinth Macaw Project (Projecto Arara Azul) began with support from the University for the Development of the State (Mato Grosso do Sul) and the Pantanal Region (Brouwer 2004, unpaginated; Guedes 2004b, p. 28; Pittman 1999, p. 39). This program works with local landowners, communities, and tourists to monitor the hyacinth macaw, study the biology of this species, manage the population, and promote its conservation and ensure its protection in the Pantanal (Santos Jr. 2008, p. 135; Harris et al. 2005, p. 719; Brouwer 2004, unpaginated; Guedes 2004a, p. 281). Studies have addressed feeding, reproduction, competition, habitat survival, chick mortality, behavior, nests, predation, movement, and threats contributing to the reduction in the wild population (Guedes 2009, p. xiii; Guedes 2004a, p. 281). Because there are not enough natural nesting sites in this region, the Hyacinth Macaw Project began installing artificial nest boxes; more than 180 have been installed. Hyacinths have adapted to using the artificial nests, leading to more reproducing couples and successful fledging of chicks. Species that would otherwise compete with hyacinth macaws for nesting sites have also benefitted from the artificial nests as a result of reduced competition for natural nesting sites. Hyacinths reuse the same nest for many years; eventually the nests start to decay or become unviable. The Hyacinth Macaw Project also repairs these nests (natural and artificial) so they are not lost. In areas where suitable cavities are scarce, the loss of even one nest could have substantial impacts on the population. Additionally, wood boards are used to make cavity openings too small for predators, while still allowing hyacinths to enter (Brouwer 2004, unpaginated; Guedes 2004a, p. 281; Guedes 2004b, p. 8).

    In nests with a history of unsuccessful breeding, the Hyacinth Macaw Project has also implemented chick management, with the approval of the Committee for Hyacinth Macaw Conservation coordinated by IBAMA. Hyacinth macaw eggs are replaced with chicken eggs, and the hyacinth eggs are incubated in a field laboratory. After hatching, chicks are fed for a few days, and then reintroduced to the original nest or to another nest with a chick of the same age. This process began to increase the number of chicks that survived and fledged each year (Brouwer 2004, unpaginated; Guedes 2004a, p. 281; Guedes 2004b, p. 9).

    Awareness has also been raised with local cattle ranchers. Attitudes have begun to shift, and ranchers are proud of having macaw nests on the property. Local inhabitants also served as project collaborators (Guedes 2004a, p. 282; Guedes 2004b, p. 10). This shift in attitude has also diminished the threat of illegal trade in the Hyacinth Macaw Project area (Brouwer 2004, unpaginated).

    The Hyacinth Macaw Project has contributed to the increase of the hyacinth population in the Pantanal since the 1990s (Harris et al. 2005, p. 719). Nest and chick management implemented by the Hyacinth Macaw Project has led to an increase in the Pantanal population; for every 100 couples that reproduce, 4 juveniles survive and are added to the population. Additionally, hyacinth macaws have expanded to areas where it previously disappeared, as well as new areas (Guedes 2012, p. 1; Guedes 2009, pp. 4-5, 8, 35-36, 39, 82).

    Nest boxes can have a marked effect on breeding numbers of many species on a local scale (Newton 1994, p. 274), and having local cattle ranchers appreciate the presence of the hyacinth macaw on their land helps diminish the effects of habitat destruction and illegal trade. However, the Hyacinth Macaw Project area does not encompass the entire Pantanal region. Although active management has contributed to the increase in the hyacinth population, and farmers have begun to protect hyacinth macaws on their property, land conversion for cattle ranching continues to occur in the Pantanal. The recruitment of the manduvi tree has been severely reduced, and is expected to become increasingly rare in the future, due to ongoing damage caused by cattle grazing and trampling of manduvi saplings, as well as the burning of pastures for maintenance. If this activity continues, the hyacinth's preferred natural cavities will be severely limited and the species will completely rely on the installation of artificial nest boxes, which is currently limited to the Hyacinth Macaw Project area. Furthermore, survival of hyacinth eggs and chicks are being impacted by predation, competition, climate variations, and other natural factors. Even with the assistance of the Hyacinth Macaw Project, only 35 percent of eggs survive to the juvenile stage.

    Pet Trade

    The hyacinth macaw is protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), an international agreement between governments to ensure that the international trade of CITES-listed plant and animal species does not threaten species' survival in the wild. Under this treaty, CITES Parties (member countries or signatories) regulate the import, export, and re-export of specimens, parts, and products of CITES-listed plant and animal species. Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Management Authority of each CITES Party. Brazil, Bolivia, and Paraguay are Parties to CITES.

    The hyacinth macaw is currently listed in Appendix I of CITES. An Appendix-I listing includes species threatened with extinction whose trade is permitted only under exceptional circumstances, which generally precludes commercial trade. The import of an Appendix-I species generally requires the issuance of both an import and export permit. Import permits for Appendix-I species are issued only if findings are made that the import would be for purposes that are not detrimental to the survival of the species and that the specimen will not be used for primarily commercial purposes (CITES Article III(3)). Export permits for Appendix-I species are issued only if findings are made that the specimen was legally acquired and trade is not detrimental to the survival of the species, and if the issuing authority is satisfied that an import permit has been granted for the specimen (CITES Article III(2)).

    The import of hyacinth macaws into the United States is also regulated by the Wild Bird Conservation Act (WBCA) (16 U.S.C. 4901 et seq.), which was enacted on October 23, 1992. The purpose of the WBCA is to promote the conservation of exotic birds by ensuring that all imports of exotic birds to the United States are biologically sustainable and not detrimental to the species in the wild. The WBCA generally restricts the importation of most CITES-listed live or dead exotic birds. Import of dead specimens is allowed for scientific purposes and museum specimens. Permits may be issued to allow import of listed birds for various purposes, such as scientific research, zoological breeding or display, or personal pets, when certain criteria are met. The Service may approve cooperative breeding programs and subsequently issue import permits under such programs. Wild-caught birds may be imported into the United States if certain standards are met and they are subject to a management plan that provides for sustainable use. At this time, the hyacinth macaw is not part of a Service-approved cooperative breeding program, and has not been approved for importation of wild-caught birds.

    In the 1970s and 1980s, substantial trade in hyacinth macaws was reported, but actual trade was likely significantly greater given the amount of smuggling, routing of birds through countries not parties to CITES, and internal consumption in South America (Collar et al. 1992, p. 256; Munn et al. 1989, pp. 412-413). Trade in parrots in the 1980s was particularly high due to a huge demand from developed countries, including the United States, which was the main consumer of parrot species at that time (Rosales et al. 2007, pp. 85, 94; Best et al. 1995, p. 234). In the late 1980s and early 1990s, reports of hyacinth trapping included one trapper who worked an area for 3 years removing 200-300 wild hyacinths a month during certain seasons and another trapper who caught 1,000 hyacinths in 1 year and knew of other teams operating at similar levels (Silva (1989a) and Smith (1991c) in Collar et al. 1992, p. 256). More than 10,000 hyacinths are estimated to have been taken from the wild in the 1980s (Smith 1991c, in Collar et al. 1992, p. 256; Munn et al. 1987, in Guedes 2009, p. 12). In the years following the enactment of the WBCA, studies found lower poaching levels than in prior years, suggesting that import bans in developed countries reduced poaching levels in exporting countries (Wright et al. 2001, pp. 715, 718).

    Based on CITES trade data obtained from United Nations Environment Programme—World Conservation Monitoring Center (UNEP-WCMC) CITES Trade Database, from the time the hyacinth macaw was uplisted to CITES Appendix I in October 1987 through 2011, and taking into account that several records appear to be overcounts due to slight differences in the manner in which the importing and exporting countries reported their trade, international trade involved 2,030 specimens, including 1,804 live birds. Of the 2,030 specimens, 106 (4.6 percent) were exported from Bolivia, Brazil, or Paraguay (the range countries of the species). With the information given in the UNEP-WCMC database, from 1987 through 2011, only 24 of the 1,804 live hyacinth macaws reported in trade were reported as wild-sourced, 1,671 were reported as captive bred or captive born, 35 were reported as pre-Convention, and 74 were reported with the source as unknown.

    Since our 2012 proposed rule published, CITES trade data from the UNEP-WCMC CITES Trade Database for the years 2012 through 2014 has become available. From 2012 through 2014 (the most recent year for which data is available from the WCMC-UNEP database), a total of 250 hyacinth macaw specimens, including 193 live birds, is reported in international trade in the WCMC-UNEP database. Except for five scientific samples imported by Switzerland in 2012, none of the other specimens were reported as being wild caught; all were either recorded as captive bred or captive born. Twenty live wild-caught hyacinth macaws are recorded as having been imported by Turkey from Cameroon in 2012; at the time of writing, we are still waiting for information from Turkey as to whether this data is accurate, and if so, whether this was lawful or unlawful trade.

    We found little additional information on illegal trade of this species in international markets. One study found that illegal pet trade in Bolivia continues to involve CITES-listed species; the authors speculated that similar problems exist in Peru and Brazil (Herrera and Hennessey 2007, p. 298). In that same study, 11 hyacinths were found for sale in a Santa Cruz market from 2004 to 2007 (10 in 2004 and 1 in 2006) (Herrera and Hennessey 2009, pp. 233-234). Larger species, like the hyacinth, were frequently sold for transport outside of the country, mostly to Peru, Chile, and Brazil (Herrera and Hennessey 2009, pp. 233-234). During a study conducted from 2007 to 2008, no hyacinths were recorded in 20 surveyed Peruvian wildlife markets (Gastañaga et al. 2010, pp. 2, 9-10). We found no other data on the presence of hyacinths in illegal trade.

    Although illegal trapping for the pet trade occurred at high levels during the 1980s, trade has decreased significantly from those levels. International trade of parrots was significantly reduced during the 1990s as a result of tighter enforcement of CITES regulations, stricter measures under EU legislation, and adoption of the WBCA, along with adoption of national legislation in various countries (Snyder et al. 2000, p. 99). We found no information indicating trade is currently impacting the hyacinth macaw. It is possible, given the high price of hyacinth macaws, that illegal domestic trade is occurring; however, we have no information to suggest that illegal trapping for the pet trade is currently occurring at levels that are affecting the populations of the hyacinth macaw in its three regions.

    Finding

    Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether the hyacinth macaw is in danger of extinction throughout all or a significant portion of its range (endangered) or likely to become endangered within the foreseeable future throughout all or a significant portion of its range (threatened). We examined the best scientific and commercial information available regarding factors affecting the status of the hyacinth macaw. We reviewed the petition, information available in our files, and other available published and unpublished information.

    In considering what factors may constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to the factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine if it may drive or contribute to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act.

    Hyacinth macaws have a naturally low reproductive rate. Not all hyacinth chicks fledge young and, due to the long period of chick dependence, hyacinths breed only every 2 years. In the Pantanal population, the largest population of hyacinth macaws, only 15-30 percent of adults attempt to breed each year; it may be that as small or an even smaller percentage in Pará and Gerais attempt to breed. Additionally, feeding and habitat specializations are good predictors of a bird species' risk of extinction; because the hyacinth macaw has specialized food and nest site needs, it is at higher risk of extinction from the anthropogenic stressors described above.

    Across its range, the hyacinth macaw is losing habitat, including those essential food and nesting resources, to expanding agriculture and cattle ranching. Pará has long been the epicenter of illegal deforestation primarily caused by cattle-ranching. Large-scale forest conversion for colonization and cattle ranching has accelerated due to state subsidies, infrastructure development, favorable climate in Pará, lower prices for land, and expansion of soy cultivation in other areas that has led to displacement of pastures into parts of Pará. Although deforestation rates decreased between 2009 and 2012, Amazon deforestation increased between 2012 and 2013 with the greatest increase occurring in Pará.

    In the Gerais region, more than 50 percent of the original Cerrado vegetation has been lost due to conversion to agriculture and pasture. Although annual deforestation rates have decreased, there is a slow and steady increase in the amount of deforested area. Remaining Cerrado vegetation continues to be lost to conversion for soy plantations and extensive cattle ranching. Projections for coming decades show the largest increase in agricultural production occurring in the Cerrado.

    The greatest cause of habitat loss in the Pantanal is the expansion of cattle ranching. Only 6 percent of the Pantanal landscape is cordilleras, higher areas where the manduvi occur. These upland forests, including potential nesting trees, are often removed and converted to pastures for grazing during the flooding season; however, palm species used by hyacinths for food are usually left, as cattle also feed on the palm nuts. While deforestation rates between 2002 and 2014 indicate a decrease in the annual deforestation rate, there continues to be a slow and steady increase in the area deforested. Fire is also a common method for renewing pastures, controlling weeds, and controlling pests in the Pantanal. Fires become uncontrolled and are known to impact patches of manduvi. Fires can help in the formation of cavities, but too frequent fires can prevent trees from surviving to a size capable of providing suitable cavities and can cause a high rate of tree loss. Five percent of manduvi trees are lost each year due to deforestation, fires, and storms.

    In addition to the direct removal of trees and the impact of fire on forest establishment, cattle impact forest recruitment. Intense livestock activity can affect seedling recruitment via trampling and grazing. Cattle also compact the soil such that regeneration of forest species is severely reduced. This type of repeated disturbance can lead to an ecosystem dominated by invasive trees, grasses, bamboo, and ferns. Manduvi, which contain the majority of hyacinth nests, are already limited in the Pantanal; only 5 percent of the existing adult manduvi trees in south-central Pantanal and 10.7 percent in the southern Pantanal contain suitable cavities for hyacinth macaws. Evidence of severely reduced recruitment of manduvi trees suggests that this species of tree, of adequate size to accommodate the hyacinth macaw, is not only scarce now, but likely to become increasingly scarce in the future.

    Deforestation also reduces the availability of food resources. The species' specialized diet makes it vulnerable to changes in food availability. Another Anodorhynchus species, the Lear's macaw, is critically endangered due, in part, to the loss of its' specialized food source (licuri palm stands). Inadequate nutrition can contribute to poor health and is known to have reduced reproduction in hyacinth macaws. In Pará and the Gerais region, where food sources are being removed, persistence of the species is a concern.

    Deforestation for agriculture and cattle ranching, cattle trampling and foraging, and burning of forest habitat result in the loss of mature trees with natural cavities of sufficient size and a reduction in recruitment of native species, which could eventually provide nesting cavities. A shortage of nest sites can jeopardize the persistence of the hyacinth macaw by constraining breeding density, resulting in lower recruitment and a gradual reduction in population size. This situation may lead to long-term effects on the viability of the hyacinth macaw population, especially in Pará and the Pantanal where persistence of nesting trees is compromised. While the Hyacinth Macaw Project provides artificial nest alternatives, such nests are only found within the project area.

    Loss of essential tree species also negatively impacts the hyacinth macaw by increasing competition for what is already a shortage of suitable nest sites. In the Pantanal, the hyacinth nests almost exclusively in manduvi trees. The number of manduvi old and large enough to provide suitable cavities is already limited. Additionally, there are 17 other bird species, small mammals, and honey bees that also use manduvi cavities. Competition has been so fierce that hyacinths were unable to reproduce as it resulted in an increase in egg destruction and infanticide. As the number of suitable trees is further limited, competition for adequate cavities to accommodate the hyacinth macaw will certainly increase, reducing the potential for hyacinth macaws to reproduce.

    In the Gerais region, hyacinth macaws mostly nest in rock crevices, most likely a response to the destruction of nesting trees. Although it is possible that hyacinths could use alternative nesting sites in Pará and the Pantanal, deforestation in these regions would impact alternative nesting trees, as well as food sources, resulting in the same negative effect on the hyacinth macaw. Furthermore, competition for limited nesting and food resources would continue.

    Climate change models have predicted increasing temperatures and decreasing rainfall throughout most of Brazil. There are uncertainties in this modeling, and the projections are not definitive outcomes. How a species may adapt to changing conditions is difficult to predict. We do not know how the habitat of the hyacinth macaw may vary under these conditions, but we can assume some change will occur. The hyacinth macaw is experiencing habitat loss due to widespread expansion of agriculture and cattle ranching. Effects of climate change have the potential to further decrease the specialized habitat needed by the hyacinth macaw; the ability of the hyacinth macaw to cope with landscape changes due to climate change is questionable given the specialized needs of the species. Furthermore, hotter, drier years, as predicted under different climate change scenarios, could result in greater impacts to hyacinth reproduction due to impacts on the fruit and foraging for the hyacinth macaw and competition with other bird and mammal species for limited resources.

    In addition to direct impacts on food and nesting resources and hyacinth macaws themselves, several other factors affect the reproductive success of the hyacinth. Information indicates that hyacinths in Pará and Gerais are hunted as a source of protein and for feathers to be used in local handicrafts. Although we do not have information on the numbers of macaws taken for these purposes, given the small populations in these two regions, any loss of potentially reproducing individuals could have a devastating effect on the ability of those populations to increase. Additionally, in the Pantanal, predation, variations in temperature and rainfall, and ectoparasites all contribute to loss of eggs and chicks, directly affecting the reproductive rate of hyacinth macaws.

    Brazil has various laws to protect its natural resources. Despite these laws and plans to significantly reduce deforestation, expanding agriculture and cattle ranching has contributed to increases in deforestation rates in some years and deforested areas continue to increase each year. Additionally, hunting continues in some parts of the hyacinth macaw's range despite laws prohibiting this activity. Without effective implementation and enforcement of environmental laws, deforestation and hunting will continue.

    Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” After analyzing the species' status in light of the five factors discussed above, we find the hyacinth macaw is a “threatened species” as a result of the following: Continued deforestation and reduced recruitment of forests (Factor A), hunting (Factor B), predation and disease (Factor C), competition (Factor E), and effects of climate change (Factor E). Furthermore, despite laws to protect the hyacinth macaw and the forests it depends on, deforestation and hunting continue (Factor D).

    In total, there are approximately 6,500 hyacinth macaws left in the wild, dispersed among 3 populations. Two of the populations, Pará and Gerais, contain just 1,000-1,500 individuals, combined. The current overall population trend for the hyacinth macaw is reported as decreasing, although there are no reports of extreme fluctuations in the number of individuals. The hyacinth population has grown in the Pantanal; however, the growth is not sufficient to counter the continued and predicted future anthropogenic disturbances on the hyacinth macaw. Because the hyacinth macaw has specialized food and nest site needs, it is at higher risk of extinction from anthropogenic stressors described above. Additionally, the hyacinth macaw has relatively low recruitment of juveniles, which decreases the ability of a population to recover from reductions caused by anthropogenic disturbances. Hyacinths may not have a high enough reproduction rate and may not survive in areas where nest sites and food sources are destroyed.

    In our 2012 proposed rule, we found that the hyacinth macaw was in danger of extinction (an endangered species) based on estimates indicating the original vegetation of the Amazon, Cerrado, and Pantanal, including the hyacinth's habitat, would be lost between the years 2030 and 2050 due to deforestation, combined with its naturally low reproductive rate, highly specialized nature, hunting, competition, and effects of climate change. Deforestation rates in Pará decreased between 2013 and 2014 by 20 percent, and rates remained stable in 2015. More recent estimates of deforestation indicate annual deforestation rates in the Cerrado and Pantanal have decreased by approximately 40 and 37 percent, respectively. If these rates are maintained or are further reduced, the loss of all native habitat from these areas, including the species of trees needed by the hyacinth for food and nesting, and the hyacinth's risk of extinction is not as imminent as predicted. Therefore, we do not find that the hyacinth macaw is currently in danger of extinction. However, the hyacinth macaw remains a species particularly vulnerable to extinction due to the interaction between continued habitat loss and its highly specialized needs for food and nest trees. Given land-use trends, lack of enforcement of laws, and predicted landscape changes under climate change scenarios, the persistence of essential food and nesting resources and, therefore the hyacinth macaw, is of concern.

    Threats to the hyacinth macaw and remaining habitat, and declines in the population are expected to continue throughout its range in the foreseeable future. What habitat remains is at risk of being lost due to ongoing deforestation. Pará is one of the states where most of Brazil's agriculture expansion is taking place. Modeled future deforestation is concentrated in this area. The Cerrado is the most desirable biome for agribusiness expansion and contains approximately 40 million ha (98.8 million ac) of “environmental surplus” that could be legally deforested, therefore, this region will likely continue to suffer deforestation. Ninety-five percent of the Pantanal is privately owned, 80 percent of which is used for cattle ranches. Clearing land to establish pasture is perceived as the economically optimal land use while land not producing beef is often perceived as unproductive. Furthermore, potential nesting sites are rare and will become increasingly rare in the future. Continued loss of remaining habitat may lead to long-term effects on the viability of the hyacinth macaw, as hyacinth macaws may not have a high enough reproductive rate to survive where nest sites are destroyed. Additionally, any factors that contribute to the loss of eggs and chicks ultimately reduce reproduction and recruitment of juveniles into the population and the ability of those populations to recover. Therefore, long-term survival of this species is a concern. On the basis of the best scientific and commercial information, we find that the hyacinth macaw meets the definition of a “threatened species” under the Act, and we are listing the hyacinth macaw as threatened throughout its range.

    Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpreting the phrase “Significant Portion of its Range” (SPR) (79 FR 37578, July 1, 2014). The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

    We found the hyacinth macaw likely to become endangered within the foreseeable future throughout its range. Therefore, no portions of the species' range are “significant” as defined in our SPR policy, and no additional SPR analysis is required.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.

    The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

    Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

    Proposed 4(d) Rule

    The purposes of the Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the Act (16 U.S.C. 1531(b)). When a species is listed as endangered, certain actions are prohibited under section 9 of the Act and our regulations at 50 CFR 17.21. These include, among others, prohibitions on take within the United States, within the territorial seas of the United States, or upon the high seas; import; export; and shipment in interstate or foreign commerce in the course of a commercial activity. Exceptions to the prohibitions for endangered species may be granted in accordance with section 10 of the Act and our regulations at 50 CFR 17.22.

    The Act does not specify particular prohibitions and exceptions to those prohibitions for threatened species. Instead, under section 4(d) of the Act, the Secretary, as well as the Secretary of Commerce depending on the species, was given the discretion to issue such regulations as deemed necessary and advisable to provide for the conservation of such species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species any act prohibited under section 9(a)(1) of the Act. Exercising this discretion, the Service has developed general prohibitions in the Act's regulations (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) that apply to most threatened species. Under 50 CFR 17.32, permits may be issued to allow persons to engage in otherwise prohibited acts for certain purposes.

    Under section 4(d) of the Act, the Secretary, who has delegated this authority to the Service, may also develop specific prohibitions and exceptions tailored to the particular conservation needs of a threatened species. In such cases, the Service issues a 4(d) rule that may include some or all of the prohibitions and authorizations set out in 50 CFR 17.31 and 17.32, but which also may be more or less restrictive than the general provisions at 50 CFR 17.31 and 17.32. For the hyacinth macaw, the Service is using our discretion to propose a 4(d) rule.

    If the proposed 4(d) rule is adopted, we will incorporate all prohibitions and provisions of 50 CFR 17.31 and 17.32, except that import and export of certain hyacinth macaws into and from the United States and certain acts in interstate commerce will be allowed without a permit under the Act, as explained below.

    Import and Export

    The proposed 4(d) rule will apply to all commercial and noncommercial international shipments of live and dead hyacinth macaws and parts and products, including the import and export of personal pets and research samples. In most instances, the proposed 4(d) rule will adopt the existing conservation regulatory requirements of CITES and the WBCA as the appropriate regulatory provisions for the import and export of certain hyacinth macaws. The import and export of birds into and from the United States, taken from the wild after the date this species is listed under the Act; conducting an activity that could take or incidentally take hyacinth macaws; and foreign commerce will need to meet the requirements of 50 CFR 17.31 and 17.32, including obtaining a permit under the Act. However, the 4(d) rule proposes to allow a person to import or export either: (1) A specimen held in captivity prior to the date this species is listed under the Act; or (2) a captive-bred specimen, without a permit issued under the Act, provided the export is authorized under CITES and the import is authorized under CITES and the WBCA. If a specimen was taken from the wild and held in captivity prior to the date this species is listed under the Act, the importer or exporter will need to provide documentation to support that status, such as a copy of the original CITES permit indicating when the bird was removed from the wild or museum specimen reports. For captive-bred birds, the importer would need to provide either a valid CITES export/re-export document issued by a foreign Management Authority that indicates that the specimen was captive bred by using a source code on the face of the permit of either “C,” “D,” or “F.” For exporters of captive-bred birds, a signed and dated statement from the breeder of the bird, along with documentation on the source of their breeding stock, would document the captive-bred status of U.S. birds.

    The proposed 4(d) rule will apply to birds captive-bred in the United States and abroad. The terms “captive-bred” and “captivity” used in the proposed 4(d) rule are defined in the regulations at 50 CFR 17.3 and refer to wildlife produced in a controlled environment that is intensively manipulated by man from parents that mated or otherwise transferred gametes in captivity. Although the proposed 4(d) rule requires a permit under the Act to “take” (including harm and harass) a hyacinth macaw, “take” does not include generally accepted animal husbandry practices, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife when applied to captive wildlife.

    We assessed the conservation needs of the hyacinth macaw in light of the broad protections provided to the species under CITES and the WBCA. The hyacinth macaw is listed in Appendix I under CITES, a treaty which contributes to the conservation of the species by monitoring international trade and ensuring that trade in Appendix I species is not detrimental to the survival of the species (see Conservation Status). The purpose of the WBCA is to promote the conservation of exotic birds and to ensure that imports of exotic birds into the United States do not harm them (See Factor D). The best available commercial data indicate that legal and illegal trade of hyacinth macaws is not currently occurring at levels that are affecting the populations of the hyacinth macaw in its three regions. Accordingly we find that the import and export requirements of the proposed 4(d) rule provide the necessary and advisable conservation measures that are needed for this species. This proposed 4(d) rule, if finalized, would streamline the permitting process for these types of activities by deferring to existing laws that are protective of hyacinths in the course of import and export.

    Interstate Commerce

    Under the proposed 4(d) rule, a person may deliver, receive, carry, transport, or ship a hyacinth macaw in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce a hyacinth macaw without a permit under the Act. At the same time, the prohibitions on take under 50 CFR 17.21 would apply under this proposed 4(d) rule, and any interstate commerce activities that could incidentally take hyacinth macaws or otherwise prohibited acts in foreign commerce would require a permit under 50 CFR 17.32.

    Persons in the United States have imported and exported captive-bred hyacinth macaws for commercial purposes and one body for scientific purposes, but trade has been very limited (UNEP-WCMC 2011, unpaginated). We have no information to suggest that interstate commerce activities are associated with threats to the hyacinth macaw or would negatively affect any efforts aimed at the recovery of wild populations of the species. Therefore, because acts in interstate commerce within the United States have not been found to threaten the hyacinth macaw, the species is otherwise protected in the course of interstate commercial activities under the take provisions and foreign commerce provisions contained in 50 CFR 17.31, and international trade of this species is regulated under CITES, we find this proposed 4(d) rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the hyacinth macaw.

    Required Determinations Clarity of Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us page numbers and the names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    Paperwork Reduction Act (44 U.S.C. 3501, et seq.)

    This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. This rulemaking will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A list of all references cited in this document is available at http://www.regulations.gov, Docket No. FWS-R9-ES-2012-0013, or upon request from the U.S. Fish and Wildlife Service, Ecological Services, Branch of Foreign Species (see FOR FURTHER INFORMATION CONTACT section).

    Author

    The primary authors of this notice are staff members of the Branch of Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended on July 6, 2012, at 77 FR 39965 and on April 7, 2016, at 81 FR 20302, as set forth below:

    PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.

    2. Amend § 17.11(h) by adding an entry for “Macaw, hyacinth” in alphabetical order under Birds to the List of Endangered and Threatened Wildlife, to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Species Common name Scientific name Historic range Vertebrate
  • population where
  • endangered or
  • threatened
  • Status When listed Critical
  • habitat
  • Special rules
    *         *         *         *         *         *         * Birds *         *         *         *         *         *         * Macaw, hyacinth Anodorhynchus hyacinthinus Bolivia, Brazil, Paraguay Entire T NA NA 17.41(c) *         *         *         *         *         *         *
    3. Amend § 17.41 by revising paragraph (c) introductory text, paragraphs (c)(1), (c)(2) introductory text, (c)(2)(ii) introductory text and (c)(2)(ii)(E) to read as follows:
    § 17.41 Special rules—birds.

    (c) The following species in the parrot family: Salmon-crested cockatoo (Cacatua moluccensis), yellow-billed parrot (Amazona collaria), white cockatoo (Cacatua alba), scarlet macaw (Ara macao macao and scarlet macaw subspecies crosses (Ara macao macao and Ara macao cyanoptera)), and hyacinth macaw (Anodorhynchus hyacinthinus).

    (1) Except as noted in paragraphs (c)(2) and (c)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to these species.

    (2) Import and export. You may import or export a specimen from the southern DPS of Ara macao macao and scarlet macaw subspecies crosses without a permit issued under § 17.52 of this part, and you may import or export all other specimens without a permit issued under § 17.32 of this part only when the provisions of parts 13, 14, 15, and 23 of this chapter have been met and you meet the following requirements:

    (ii) Specimens held in captivity prior to certain dates: You must provide documentation to demonstrate that the specimen was held in captivity prior to the dates specified in paragraphs (c)(2)(ii)(A), (B), (C), (D), or (E) of this section. Such documentation may include copies of receipts, accession or veterinary records, CITES documents, or wildlife declaration forms, which must be dated prior to the specified dates.

    (E) For hyacinth macaws: [EFFECTIVE DATE OF THE FINAL RULE] (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

    Dated: November 19, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-28318 Filed 11-25-16; 8:45 am] BILLING CODE 4333-15-P
    81 228 Monday, November 28, 2016 Notices AFRICAN DEVELOPMENT FOUNDATION Public Quarterly Meeting of the Board of Directors AGENCY:

    United States African Development Foundation.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The U.S. African Development Foundation (USADF) will hold its quarterly meeting of the Board of Directors to discuss the agency's programs and administration.

    DATES:

    The meeting date is Wednesday, November 30, 2016, 9:00 a.m. to 12:00 p.m.

    ADDRESSES:

    The meeting location is 1400 I St NW., Suite 1000, Washington, DC 20005.

    FOR FURTHER INFORMATION CONTACT:

    Jason Parker, 202-233-8800.

    Authority:

    Public Law 96-533 (22 U.S.C. 290h).

    Dated: November 21, 2016. Doris Mason Martin, General Counsel.
    [FR Doc. 2016-28423 Filed 11-25-16; 8:45 am] BILLING CODE 6117-01-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 22, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are required regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by December 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725-17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Farm Service Agency

    Title: Application for Payment of Amounts Due Persons Who Have Died, Disappeared or Declared Incompetent.

    OMB Control Number: 0560-0026.

    Summary of Collection: Representa-tives or survivors of persons who die, disappear, or are declared incompetent must be afforded a method of obtaining any payment intended for the person. 7 CFR 707 provides that form, FSA-325, be used as the form of application for person desiring to claim such payments. It is necessary to collect information recorded on FSA-325 in order to determine whether representatives or survivors of a person are entitled to receive payments earned by a person who dies, disappears, or is declared incompetent before receiving the payments due.

    Need and Use of the Information: FSA will collect information to determine if the survivors have rights to the existing payments or to the unpaid portions of the person's payments. Survivors must show proof of death, disappearance, or incompetency.

    Description of Respondents: Individuals or households.

    Number of Respondents: 2,000.

    Frequency of Responses: Reporting: Other (when necessary).

    Total Burden Hours: 3,000.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-28477 Filed 11-25-16; 8:45 am] BILLING CODE 3410-05-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 21, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by December 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Food and Nutrition Service

    Title: Review of Child Nutrition Data & Analysis for Program Management.

    OMB Control Number: 0584-NEW.

    Summary of Collection: The Richard B. Russell National School Lunch Act of 1946 (42 U.S.C. 1751 et seq.), and the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.) provide the legislative authority for the Food and Nutrition Service (FNS) to administer the National School Lunch Program (NSLP) and the School Breakfast Program (SBP). These programs provide Federal financial assistance and USDA Foods to public and non-profit private schools and residential childcare institutions to facilitate serving meals that meet nutritional standards. In accordance with Federal regulations, School Food Authorities (SFA) collect a range of required and reported basic data elements that the States and FNS use to monitor program reach, efficiency, and implementation, but they also collect additional data, which the SFAs need to manage their own operations. SFAs and States have migrated from paper-based processes to Management Information Systems (MIS) of varying levels of sophistication for the management of their data. FNS is conducting the Review of Child Nutrition Data and Analysis for Program Management Study to document the current status of the SFAs' and the State's NSLP/SBP MIS.

    Need and Use of the Information: The data collected from this voluntary study will be used to evaluate the available data elements that State agencies and SFAs collect for the operation of the NSLP and SBP. FNS will use the results of this study to identify specific data elements that could improve and streamline reporting to FNS to improve program oversight. The information gathered from the study will also be used to provide technical assistance to State agencies and SFAs and to develop MIS best practices.

    Description of Respondents: State, Local, or Tribal Government.

    Number of Respondents: 4,382.

    Frequency of Responses: Reporting: Other (once).

    Total Burden Hours: 2,712.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-28414 Filed 11-25-16; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection AGENCY:

    National Agricultural Statistics Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Aquaculture Surveys. Revision to burden hours will be needed due to changes in NASS estimates programs, target population sizes, sampling designs, and/or content of questionnaires.

    DATES:

    Comments on this notice must be received by January 27, 2017 to be assured of consideration.

    ADDRESSES:

    You may submit comments, identified by docket number 0535-0150, by any of the following methods:

    Email: [email protected] Include the docket number above in the subject line of the message.

    Efax: (855) 838-6382.

    Mail: Mail any paper, disk, or CD-ROM submissions to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.

    Hand Delivery/Courier: Hand deliver to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.

    FOR FURTHER INFORMATION CONTACT:

    R. Renee Picanso, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at (202) 690-2388 or at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Aquaculture Surveys.

    OMB Control Number: 0535-0150.

    Expiration Date: June 30, 2017.

    Type of Request: Intent to seek approval to revise and extend a currently approved information collection for a period of three years.

    Abstract: The primary objective of the National Agricultural Statistics Service is to prepare and issue state and national estimates of crop and livestock production, prices, and disposition. The Aquaculture Surveys program produces estimates at the national level on both trout and catfish. Survey results are used by government agencies and others in planning farm programs.

    The trout survey includes inventory counts, sales (dollars, pounds, and quantities), percent of product sold by outlet at the point of first sale, number of fish raised for release into open waters, and losses. The catfish surveys include inventory counts, water surface acreage used for production, sales (dollars, pounds, and quantities), and losses.

    • Twenty-five states are in the Trout Production Survey. In January, data are collected in the selected states that produce and either sell or distribute trout. State, federal, tribal, and other facilities where trout are raised for conservation, restoration, or recreational purposes are included in the survey.

    • Nine states are in the Catfish Production Survey. Data are collected from farmers in January for inventory, water surface acreage, and previous year sales. In addition, farmers in the three major catfish producing states are surveyed in July for mid-year inventory and water surface acreage.

    • The surveys conducted in Florida, Hawaii, and Pennsylvania are conducted under cooperative agreements with each of these states.

    • All of the surveys conducted under this approval will have voluntary reporting, with the exception of the Pennsylvania survey. The Pennsylvania State Government requires producers to respond to this survey.

    The Catfish Feed Deliveries and Catfish Processing surveys that are present in the current information collection were discontinued due to budget sequestration in 2013. The information that was collected by these two surveys is now being collected and published by the Catfish Institute in their bimonthly publication Catfish Journal.

    Authority: These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985, as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995 Public Law 104-13 (44 U.S.C. 3501, et seq.) and Office of Management and Budget regulations at 5 CFR part 1320. NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),” Federal Register, Vol. 72, No. 115, June 15, 2007, p. 33362.

    The Pennsylvania aquaculture census is being conducted to obtain basic data on aquaculture production per Section 4217 of the Pennsylvania Agriculture Act of 1998, which states that, “Persons licensed shall submit annually a summary report of sales specifying the amount or weight of each species sold and gross receipts.”

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 15 to 20 minutes per response. Pre-survey publicity or cover letters will also be included to encourage respondents to complete and return the surveys and to provide the respondents with information on how to complete the surveys using the internet.

    Respondents: Farms and aquaculture facilities.

    Estimated Number of Respondents: Approximately 3,700 per year.

    Estimated Total Annual Burden on Respondents: 1,100 hours.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, technological or other forms of information technology collection methods. All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.

    Signed at Washington, DC, November 9, 2016. R. Renee Picanso, Associate Administrator.
    [FR Doc. 2016-28419 Filed 11-25-16; 8:45 am] BILLING CODE 3410-20-P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice for Inviting Applications for the Position of National Fund Manager for the Healthy Food Financing Initiative AGENCY:

    Rural Business-Cooperative Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This notice invites Community Development Financial Institutions to apply for the position of National Fund Manager for the Healthy Food Financing Initiative (HFFI), which was authorized under Section 4206 of the Agricultural Act of 2014 (2014 Farm Bill).

    DATES:

    Applications are due by 4:00 p.m. Eastern Standard Time on December 28, 2016.

    ADDRESSES:

    Submit complete applications to: James Barham, Agricultural Economist, Rural Business-Cooperative Service, U.S. Department of Agriculture, Stop 3254, 1400 Independence Avenue SW., Washington, DC 20250-0783; [email protected]

    SUPPLEMENTARY INFORMATION: Background

    On February 7, 2014, the Agricultural Act of 2014 (Pub. L. 113-79) (2014 Farm Bill) was signed into law. Section 4206 of the 2014 Farm Bill established the Healthy Food Financing Initiative (HFFI). The purposes of the HFFI are to improve access to healthy foods in underserved areas, to create and preserve quality jobs, and to revitalize low-income communities by providing loans and grants to eligible fresh, healthy food retailers to overcome the higher costs and initial barriers to entry in underserved areas.

    A key component to the successful implementation of the HFFI is the National Fund Manager (NFM). The primary roles of the NFM, as identified in the 2014 Farm Bill, will be to raise private capital, provide financial and technical assistance to partnerships, and fund eligible projects to support retailers and their supply chains that bring fresh, healthy food into underserved areas.

    HFFI was designed as a three-agency initiative. Since the Department of Treasury and the Department of Health and Human Services already have HFFI activities underway through existing programs, in standing up HFFI at USDA, the Agency and the NFM will take great care to ensure appropriate cooperation and coordination to achieve the goals of HFFI. Until Federal funds are appropriated for this HFFI program, the NFM will pay for its own administrative, fundraising, and management costs; USDA will not be responsible for such costs. Those costs may be covered through private fundraising agreements or other third party sources. If and when Federal funds are made available, Section 4206 permits them to be used to cover administrative expenses of the NFM in an amount not to exceed 10 percent of the Federal funds provided.

    I. Eligibility Criteria for Being the National Fund Manager

    To be eligible to be the National Fund Manager, the applicant must meet each of the following conditions:

    • The applicant must be a Community Development Financial Institution (CDFI) certified by the U.S. Department of the Treasury Department CDFI Fund.

    • The applicant must have been in existence on February 7, 2014, and must still be in existence on the date the CDFI applies for the NFM position.

    II. Roles and Responsibilities of the National Fund Manager

    The Agency envisions that the NFM will have a variety of roles and responsibilities to help ensure the success of the HFFI program. The following presents the general roles and responsibilities of the NFM currently envisioned by the Agency. The final roles and responsibilities will be identified in an appropriate agreement as agreed upon between the successful applicant and the Agency. The roles and responsibilities may vary depending on whether Federal funds are appropriated for the HFFI program.

    A. Assistance-Related

    Raise private capital. The NFM will be expected to raise private funds to be used toward the HFFI purposes.

    Leverage public funds. The NFM will be expected to leverage, and encourage the use of, funds from other federal agencies/resources, such as Treasury's CDFI Fund, HHS' Office of Community Services, SBA loans and grants, and USDA loans and grants.

    Other financial assistance. In addition to the types of financial assistance identified in the statute (loans and grants), the NFM may provide other financial assistance provided such assistance conforms to all applicable laws and regulations and best industry practices and are approved by the Agency prior to being utilized.

    Technical assistance. The NFM will be expected to provide appropriate and necessary technical assistance to partnerships and projects seeking HFFI funding and those funded under this initiative.

    B. Award-Related

    Establish eligibility criteria for projects and partnerships. The NFM will establish criteria for both projects and partnerships to determine if they are eligible to receive HFFI funding in accordance with section 4206. These criteria will be subject to Agency approval.

    Making awards. The NFM will review all project applications to ensure that each application is complete and eligible to be considered for an award. The NFM will establish an award process consistent with the priorities identified in the statute and any other priorities that otherwise advance the HFFI purposes, as determined by the Agency.

    C. Post-Award Related

    Track performance. The NFM will recommend to the Agency for approval outcome metrics for tracking the performance of projects awarded funding under the HFFI program. The Agency expects the NFM to track both financial performance and community impact.

    Data collection and compilation. The NFM will collect and compile the USDA-approved outcome metrics from HFFI program beneficiaries.

    Reports to USDA. For all projects receiving funding under the HFFI program, the NFM will submit to the Agency:

    ○ Periodic reports on outcome metrics;

    ○ Percentage of the number of projects funded each Federal fiscal year that are located in a rural area; (rural area as used in this notice means any area other than (i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i)).

    ○ A copy of its CDFI Fund Annual Certification and Data Collection Report Form submitted to the Department of Treasury; and

    ○ An annual report with a synopsis of each project receiving funding under the HFFI program.

    D. Outreach

    The NFM will be expected to actively publicize the HFFI program to appropriate communities and priority populations. In addition, the NFM will be expected to help build the capacity of potential applications, partners, and peers. The specific role of the NFM in this area will be negotiated between the Agency and the NFM.

    III. Application Information

    CDFIs must submit all of the information identified in this section of the notice to be considered for the NFM position. When submitting your application, be mindful of the scoring criteria identified in Section V, Scoring Information, of this notice to ensure your application is fully responsive.

    1. Contact information. The full name of the CDFI, its address, at least two points-of-contact with both email addresses and telephone numbers.

    2. Certification. Certify that on February 7, 2014, the applicant was in existence and was certified through the U.S. Department of the Treasury's CDFI Fund. Additionally, provide documentation showing that you are currently a CDFI (i.e., at time of application) and when your current certification expires.

    3. Project experience. Describe your experience with projects associated with retail outlets, regional food systems, and locally grown foods and with such projects that serve women-owned businesses and minority-owned businesses. Identify the source of funds for such projects. Include the type of project, its purpose(s), size, location (including whether rural or urban), populations served (including women- and minority-owned businesses), and source of funds. Be sure to identify the types of assistance you provided for these projects, especially for projects relevant to the HFFI program (e.g., retail outlets, regional food systems, locally grown foods).

    • For revolving loan funds and other products that provide loans, describe the CDFI's relationship to and role in each revolving loan fund (e.g., raised capital, administered, served as a consultant). If you have used other financial products to provide loans, describe each, how they were used, how successful they were, and the communities/populations/businesses served.

    • For grants to fund projects, identify the size of the grant and any terms and conditions associated with the use of the grant funds.

    • For technical assistance, describe the types of technical assistance and to whom the technical assistance was provided. In addition, describe the types of Technical Assistance that you would provide, if selected as the NFM, to benefit underserved areas with low- and moderate-income populations; rural communities; women- and minority-owned businesses; and local or regional food systems.

    4. Outreach and collaboration. Describe outreach activities that the CDFI has led or participated in for underserved areas with low- and moderate-income populations and their location (rural, urban). Identify your role and the content of the outreach activity. Provide an assessment of why they were successful or not. If not successful, describe what can be done to improve their effectiveness.

    Describe the CDFI's history of collaboration with the U.S. Department of Agriculture and other governmental (e.g., other federal, regional, state, local) agencies, other CDFIs, national organizations in the healthy food arena, and other similar stakeholders. Identify the partners, including contact information, the types of projects you collaborated on, and the roles you and the partners each played. If not included under Project Experience, identify the types of projects that you have collaborated on, including their size, purpose, location, and populations served.

    If selected as the NFM, describe your plans to reach out to underserved areas with low- and moderate-income populations, rural communities, women- and minority-owned businesses, and businesses that support local or regional food systems. Include examples where you have implemented any of these approaches and provide an assessment of why they were or were not successful. If not successful, describe what can be done to improve their effectiveness.

    As the NFM, describe the roles that both national organizations and local healthy food stakeholders would play in supporting the HFFI program. Describe your approach to collaborating with these stakeholders to facilitate HFFI investments.

    5. Financing/Capital. Describe the CDFI's financial condition and provide your current audited financial statement. Describe your experience in raising capital and administering pools of capital in a cost-efficient manner, including specific examples and their size.

    If you are selected as the NFM, describe the strategy you will use to raise private capital in support of this HFFI program and your strategy for making successful HFFI investments. Be sure to address HHFI investment in rural areas and the priority areas (e.g., regional food systems, local foods, quality jobs) identified in the statute.

    6. Project management capacity. Describe your management team, including length and type of financial experience, government experience, and experience relevant to healthy foods, especially in connection with public-private partnerships, underserved areas with low- and moderate-income populations, rural communities, and women- and minority-owned businesses and in connection with food supply chains. Provide resumes of key managers.

    Describe your contracting (including subcontracting) experience relevant to the types of assistance to be provided through the HFFI program. This might include such activities as contracting for support of servicing loan or grant awards or for the provision of specific types of technical assistance. For each contracting effort described, identify the purpose/scope of the contract, its size and duration, and the party or parties with whom you contracted. Please provide any additional contracting-related information you believe is relevant to the role of the NFM.

    Discuss the keys to being a successful NFM and for the HFFI program to succeed. Describe barriers to making HFFI successful and how, if you are selected, you will overcome them. Additionally, describe any innovative techniques that you have used successfully and how, if you are selected, you will use them to improve implementation of the HFFI program.

    7. Rural experience. Describe the CDFI's experience specific to rural communities, populations, and programs. Include the types of projects, their size, and specific locations; collaboration with rural partners; and outreach efforts directed toward rural communities.

    Discuss the strategies you would use, if you are selected as the NFM, to ensure the successful implementation of the HFFI program in rural areas.

    8. Rural project awards. If you are selected as the NFM, based on the total number of projects funded under this program, identify the minimum percentage of rural projects that you will fund in the first Federal fiscal year, the second Federal fiscal year, and third (and thereafter) Federal fiscal year. Provide an explanation for how you arrived these three percentages.

    9. Program evaluation. Describe the CDFI's experience in identifying/establishing and employing program performance targets and metrics, including the gathering of information and data from recipients of funding. Indicate if you have reported such information to third-parties and, if so, to whom, what information was provided, and how frequently the information was reported.

    Discuss metrics you would use, if selected as NFM, to evaluate whether and to what extent the projects funded have met the objectives of the HFFI program.

    10. Local and regional food. Describe the CDFI's involvement in a project that supported local and regional food systems. Discuss any unique financing or logistical challenges. In particular, describe how that project enhanced low-income consumers' access to staple foods, created quality jobs and otherwise supported community economic development.

    Describe the greatest financial and logistical challenges facing local and regional food systems and how, if you are selected as the NFM, you would address those challenges to successfully incorporate projects that support local and regional food systems into the HFFI program.

    IV. NFM Application Submittal Requirements

    All responses must be in English. Applications must not exceed 30 pages, excluding resumes and current audited financial statements. Applications must use 12-point font of any type, and may be either single- or double-spaced. Application material must be printable by electronic media on one side of the paper. Do not include formatting that requires large megabyte support.

    Responses to either the mailing address or the email address identified under the ADDRESSES section of this notice no later than the date and time provided in the DATES section of this Notice. If responding via email, your response must be sent as a pdf file attachment to the email.

    V. NFM Scoring Information

    The following describes how the Agency will score complete, eligible applications for the NFM position. In general, providing specific examples under all of the criteria will help boost an applicant's score.

    A. Project Experience (Maximum 20 Points)

    The more experience the NFM has with similar projects and the types of assistance for implementing the HFFI program, the better the NFM will be able to implement and manage the program. Therefore, an applicant's score under this criterion will be commensurate with the applicant's experience in and understanding of:

    Type of projects. The Agency will consider the applicant's experience with projects identified in the statute authorizing the HFFI program. Other experience associated with relevant HFFI-related projects/fresh, healthy food retail business enterprises, including regional food systems and locally grown foods, will help boost an applicant's score.

    Size of each project. CDFIs with experience in only (or mainly) large projects may not be well suited to support small projects and vice-versa. Experience with a variety of project sizes helps show desirable capabilities. Therefore, the Agency will consider an applicant's experience with various size projects. Experience with a wide variety of project sizes will help boost an applicant's score.

    Entities served. The Agency will consider the level of experience the applicant has in providing assistance to underserved areas with low- and moderate-income populations; women-owned businesses; and minority-owned businesses. More experience in providing assistance to such entities will help boost an applicant's score.

    Type of assistance. Successfully provided the type of assistance indicated in the statute, including making and servicing grants, loans, loan loss reserves, tax credits and/or other financing tools envisioned under the HFFI program. Demonstration of the types of Technical Assistance that will most benefit underserved areas with low- and moderate-income populations; rural communities; women- and minority-owned businesses; and local or regional food systems.

    Experience across all types of assistance envisioned under the HFFI program and experience that is more evenly spread across the types (rather than being concentrated in one type of assistance) will help boost an applicant's score.

    B. Outreach and Collaboration (Maximum 20 Points)

    If people do not know about the HFFI program, few will apply and the HFFI program will not be successful. Therefore, it is critical that there is a good roll-out of the HFFI program. Further, successful collaboration with such entities as national food access organizations will be valuable to the success of the HFFI program. A CDFI with good, established relations is more likely to be able to leverage that experience for better program implementation.

    Outreach and collaboration will be primary responsibilities of the NFM (although the Agency will assist and the Agency expects that national food access organizations will also provide valuable assistance).

    In evaluating applicants for the NFM position, the Agency will score applications commensurate with the applicant's:

    • Approaches to reaching out to underserved areas with low- and moderate-income populations, rural communities, tribal communities, women- and minority-owned businesses, and local or regional food systems that will be served by the HFFI program and the effectiveness of such approaches;

    • Successful collaboration with CDFIs, national food access organizations, and other stakeholders to market such programs;

    • Proven track record in working with federal agencies, including the U.S. Department of Agriculture; and

    • Vision of the role that national organizations and other healthy food stakeholders should play in support of the HFFI program, its approach to accessing these stakeholders, and how the NFM will work with them in order to facilitate HFFI investments.

    C. Financing/Capital (Maximum 20 Points)

    The ability of the NFM to raise private capital will be critical to funding HFFI projects. In addition, the Agency anticipates that the HFFI program will be a large program, and the experience of the NFM in successfully managing and administering large amounts of capital in a cost-efficient manner will be important.

    An applicant's score under this criterion will be commensurate with the applicant's:

    • Experience in raising significant amount of private capital;

    • Experience in successfully managing large pools of capital in a cost-efficient manner, including management fees; and

    • Approach for raising private capital for this HFFI effort and for making successful HFFI investments, especially in rural areas.

    D. Project Management Capacity (Maximum 15 Points)

    An applicant's score under this criterion will be commensurate with qualifications of the applicant's management team (including experience related to financial management, healthy foods, experience with the U.S. Department of Agriculture and other federal agencies and offices), demonstration of the CDFI's financial stability, how long the CDFI has been in existence, and the CDFI's strategy for being a successful National Fund Manager. In addition to the material supplied by the applicant, the Agency may use current Department of the Treasury data on the CDFI to assess the applicants' financial stability. By applying for this position, the applicant is consenting to the Department of the Treasury's release of such information to the Agency for the purpose of evaluating your application.

    The NFM may enter into contracts in order to better implement the HFFI program (e.g., in servicing loans or grants once awards are made; providing technical assistance in a specialized topic). Even though the extent the NFM will need to enter into such contracts in order to implement the HFFI program is unknown and is likely to vary from CDFI to CDFI, an applicant's score will be commensurate with its experience in administering multiple contracts and subcontractors.

    Demonstrating an understanding of barriers faced by HFFI and successful and innovative approaches to overcome such barriers will help boost an applicant's score. Management experience relevant to healthy foods, especially in connection with public-private partnerships; underserved areas with low- and moderate-income populations; rural communities; tribal communities; and women- and minority-owned businesses will also help boost the applicant's score under this criterion.

    E. Rural Experience (Maximum 10 Points)

    There are unique challenges to providing funding and technical assistance to rural communities. To be most effective as the NFM, the applicant should have substantial experience is providing funding and/or technical assistance to rural communities. An applicant's score under this criterion will be commensurate with the amount of the applicant's experience with rural communities and its approach to ensure successful implementation of the HFFI program in rural areas.

    F. Rural Project Awards (Maximum 20 Points)

    Under this criterion, the Agency will award points commensurate with the applicant's percentages of rural projects and the applicant's reasonable justification for those percentages. The Agency will require the selected NFM to meet or exceed this percentage in the third Federal fiscal year and each Federal fiscal year thereafter.

    • If the applicant commits to funding 50 percent or higher of the total number of projects in rural areas in the third Federal fiscal year, the Agency will award up to 20 points.

    • If the applicant commits to funding between at least 25 percent and up to 50 percent of the total number of projects in rural areas in the third Federal fiscal year, the Agency will award up to 10 points.

    • If the applicant commits to funding less than 25 percent of the total number of projects in rural areas in the third Federal fiscal year, the Agency will award 0 points.

    G. Program Evaluation (Maximum 10 Points)

    Being able to evaluate the performance of the HFFI program will require the collection and analysis of program outcome metrics. In selecting the NFM, the Agency will score applicants commensurate with (1) their experience in creating outcome metrics applicable to HFFI (or similar) projects or similar projects to include developing, tracking, and reporting project performance targets and metrics, especially with regards to projects associated with healthy food projects; and (2) their recommendation of outcome metrics for evaluating the extent that projects funded have met the statutory objectives of the HFFI program.

    H. Local and Regional Food (Maximum 5 Points)

    Supporting local and regional supply chains promises to multiply the economic impact of the HFFI program, and ensure that it increases access to the healthiest foods. But, as with providing assistance to rural communities, there are unique challenges associated with projects that support local and regional supply chains. To be most effective as the NFM, the CDFI should have tangible experience providing funding and/or technical assistance to projects in local and regional food systems and have an understanding of the financial and logistical challenges facing local and regional food systems, especially as they pertain to low-income consumers' access to staple foods, creating quality jobs, and other support of community economic development. An applicant's score under this criterion will be commensurate with the amount of the applicant's experience in this area and understanding of the challenges facing local and regional food systems.

    VI. Selection of the NFM

    The Agency will rank applicants based on their scores, with the highest ranking applicant receiving first consideration.

    The Agency will notify, in writing, each applicant as to whether or not they were selected as the NFM. Applicants not selected for the NFM position will be provided appeal rights.

    VII. Agency and National Fund Manager Agreement

    The Agency will enter into an appropriate Agreement with the selected applicant. The Agency will work with the selected applicant to clearly define the NFM's roles and responsibilities in accordance with this notice and section 4206. The Agreement will detail final provisions between the selected applicant and the Agency. If the Agency cannot reach agreement with the selected applicant on the terms and conditions for the Agreement, the Agency will approach the next best applicant to become the NFM.

    VIII. For Further Information

    If you wish further information concerning this Notice and the solicitation of the NFM, please contact: James Barham, Agricultural Economist, 202-690-1411, [email protected]

    IX. Nondiscrimination Statement

    In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410;

    (2) Fax: (202) 690-7442; or

    (3) Email: [email protected]

    USDA is an equal opportunity provider, employer, and lender.

    Dated: November 21, 2016. Samuel H. Rikkers, Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2016-28475 Filed 11-25-16; 8:45 am] BILLING CODE 3410-XY-P
    COMMISSION ON CIVIL RIGHTS Sunshine Act Meeting Notice AGENCY:

    United States Commission on Civil Rights.

    ACTION:

    Notice of commission business meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a Business Meeting of the U.S. Commission on Civil Rights will be convened at 11 a.m. on Friday, December 2, 2016.

    DATES:

    Friday, December 2, 2016, at 11 a.m. EST.

    ADDRESSES:

    National Place Building, 1331 Pennsylvania Ave. NW., 11th Floor, Suite 1150, Washington, DC 20425 (Entrance on F Street NW.).

    FOR FURTHER INFORMATION CONTACT:

    Brian Walch, Communications and Public Engagement Director. Telephone: (202) 376-8371; TTY: (202) 376-8116; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This business meeting is open to the public. If you would like to listen to the business meeting, please contact the above for the call-in information.

    Hearing-impaired persons who will attend the briefing and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at [email protected] at least three business days before the scheduled date of the meeting.

    Meeting Agenda I. Approval of Agenda II. Business Meeting A. Program Planning • Update on Status of 60th Anniversary Plans B. State Advisory Committees • Presentation by the Chair of the Michigan State Advisory Committee on the Committee's report on civil forfeiture in Michigan • Presentation by Regional Program Unit Coordinator David Mussatt on Status of Regional Program Offices • State Advisory Committee Appointments • California • New Mexico • Wyoming • Indiana C. Management and Operations • Staff Director's Report III. Adjourn Meeting Dated: November 23, 2016. Brian Walch, Director, Communications and Public Engagement.
    [FR Doc. 2016-28695 Filed 11-23-16; 4:15 pm] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and Opportunity for Public Comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [11/1/2016 through 11/21/2016] Firm name Firm address Date accepted for
  • investigation
  • Product(s)
    Gulfstream Services, Inc 723 Point Street, Houma, LA 70360 11/14/2016 This firm provides global oilfield services, to include rental and occassional sales of high pressure frack iron and other equipment. Union Packaging, LLC 6250 Baltimore Street, Suite 1, Yeadon, PA 19050 11/21/2016 The firm manufactures FDA-compliant paperboard packaging for the food service industry, specifically folding cartons.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-28453 Filed 11-25-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-47-2016] Foreign-Trade Zone (FTZ) 249—Pensacola, Florida; Authorization of Production Activity; GE Renewables North America, LLC (Wind Turbine Nacelles, Hubs, and Drivetrains); Pensacola, Florida

    On July 22, 2016, GE Renewables North America, LLC submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within Subzone 249A, in Pensacola, Florida.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (81 FR 49618-49619, July 28, 2016). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the Board's regulations, including Section 400.14.

    Dated: November 21, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-28559 Filed 11-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-836] Glycine From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of the Antidumping Duty Administrative Review; 2011-2012 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective October 21, 2016.

    SUMMARY:

    The Department of Commerce (the Department) is notifying the public that the Court of International Trade's (the Court's) final judgment in this case is not in harmony with the Department's final results and is therefore rescinding the antidumping administrative review with respect to Baoding Mantong Fine Chemistry Co. Ltd. (Baoding Mantong).

    FOR FURTHER INFORMATION CONTACT:

    Madeline Heeren or Brian Davis, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-9179 or (202) 482-7924, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On April 8, 2013, the Department published the Final Results, 1 in which it found Baoding Mantong failed to demonstrate that extraordinary circumstances prevented it from filing a timely withdrawal of review request pursuant to the Department's interpretation of 19 CFR 351.213(d)(1).2 On November 3, 2015, the Court remanded the Final Results to the Department holding that the Department overlooked the true purpose of the 19 CFR 351.213(d)(1), which was to allow parties an opportunity to know the results of the preceding review.3 In the Remand Redetermination, the Department, under protest, stated that it intended to extend the deadline for withdrawing a request for an administrative review, accept Baoding Mantong's untimely withdrawal request, and rescind the review with respect to Baoding Mantong.4 On October 11, 2016, the Court affirmed the Remand Redetermination. 5

    1See Glycine from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2011-2012, 78 FR 20891 (April 8, 2013) (Final Results).

    2See Final Results and accompanying Issues and Decision Memorandum.

    3See Glycine & More v. United States, Court No. 13-00167, Slip Op. 15-124 (Ct. Int'l Trade Nov. 3, 2015).

    4See Final Results of Remand Redetermination Pursuant to Glycine & More v. United States, Court No. 13-00167, Slip Op. 15-124 (Ct. Int'l Trade Nov. 3, 2015), dated February 2, 2016 (Remand Redetermination).

    5See Glycine & More, Inc., v. United States, Court No. 13-00167, Slip Op. 16-96 (Ct. Int'l Trade Oct. 11, 2016).

    Timken Notice

    In its decision in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), as clarified by Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades), the United States Court of Appeals for the Federal Circuit held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The Court's October 11, 2016 final judgment affirming the Remand Redetermination constituted the Court's final decision which is not in harmony with the Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending a final and conclusive court decision.

    Amended Final Results of Review

    Because there is now a final court decision, the Department is amending the Final Results by accepting Baoding Mantong's untimely withdrawal request, and rescinding the review with respect to Baoding Mantong.

    In the event the Court's ruling is not appealed or, if appealed, upheld by a final and conclusive court decision, the Department will instruct the U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise based on the rescission of the review with respect to Baoding Mantong.

    Cash Deposit Requirements

    Since the Final Results, the Department established a new cash deposit rate for Baoding Mantong. Therefore, the cash deposit rate for Baoding Mantong will remain the company-specific rate established for the subsequent and most recent period for a completed administrative review during which Baoding Mantong was reviewed.6

    6See Glycine From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review; 2013-2014, 80 FR 62026, 62028 (Oct. 15, 2015).

    Notification to Interested Parties

    This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.

    Dated: November 22, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-28504 Filed 11-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-967] Aluminum Extrusions From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on aluminum extrusions from the People's Republic of China (PRC). The period of review (POR) is May 1, 2014 through April 30, 2015. These final results cover 46 companies for which an administrative review was initiated and not rescinded. The Department selected the following companies as mandatory respondents: Guangzhou Jangho Curtain Wall System Engineering Co., Ltd. and Jangho Curtain Wall Hong Kong Ltd. (collectively, Jangho) and Guang Ya Aluminium Industries Co., Ltd., Foshan Guangcheng Aluminium Co., Ltd., Kong Ah International Company Limited, and Guang Ya Aluminium Industries (Hong Kong) Ltd. (collectively, Guang Ya Group); Guangdong Zhongya Aluminium Company Limited, Zhongya Shaped Aluminium (HK) Holding Limited, and Karlton Aluminum Company Ltd. (collectively, Zhongya); and Xinya Aluminum & Stainless Steel Product Co., Ltd. (Xinya) (collectively, Guang Ya Group/Zhongya/Xinya). The Department finds that Jangho, Guang Ya Group/Zhongya/Xinya, and 23 other companies subject to this review did not demonstrate eligibility for a separate rate, and, accordingly, are to be considered part of the PRC-wide entity. We also determine for these final results that two companies, Xin Wei Aluminum Company Limited and Permasteelisa Hong Kong Limited, had no shipments during the POR. Finally, we find that eight companies, including JMA (HK) Company Limited (JMA), continue to be eligible for a separate rate.

    DATES:

    Effective November 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Deborah Scott or Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2657 or (202) 482-6312, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    The Department initiated this review on July 1, 2015.1 On June 14, 2016, the Department published the Preliminary Results of this administrative review.2 At that time, we invited interested parties to comment on the Preliminary Results. On July 6, 2016, JMA submitted a letter stating that it was officially withdrawing from participation in this review and requesting that the Department remove all of JMA's submissions from the record.3 On July 14, 2016, we received a case brief from the Aluminum Extrusions Fair Trade Committee (Petitioner).4 On July 19, 2016, we received a rebuttal brief from Jangho.5 On October 3, 2016, the Department extended the deadline for the final results of this administrative review until November 21, 2016.6

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 37588 (July 1, 2015) (Initiation Notice).

    2See Aluminum Extrusions From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Rescission of Review in Part; 2014-2015, 81 FR 38664 (June 14, 2016) (Preliminary Results), and accompanying preliminary decision memorandum (Preliminary Decision Memorandum).

    3See Letter from JMA to the Department, “Aluminum Extrusions from China; Withdrawal from Participation,” dated July 6, 2016.

    4See Letter from Petitioner to the Department, “Aluminum Extrusions from the People's Republic of China: Case Brief,” dated July 14, 2016 (Petitioner's Case Brief).

    5See Letter from Jangho to the Department, “Aluminum Extrusions from the People's Republic of China: Rebuttal Brief,” dated July 19, 2016 (Jangho's Rebuttal Brief).

    6See Memorandum from Chelsey Simonovich to Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Aluminum Extrusions from the People's Republic of China: Extension of Time Limit for Final Results of Antidumping Duty Administrative Review,” dated October 3, 2016.

    These final results cover 46 companies for which an administrative review was initiated and not rescinded.7

    7 This administrative review initially covered 175 companies. See Initiation Notice. However, the Department rescinded this review with respect to 129 companies for which all administrative review requests were timely withdrawn. See Preliminary Results, 81 FR at 38665.

    Scope of the Order

    The merchandise covered by the Order8 is aluminum extrusions which are shapes and forms, produced by an extrusion process, made from aluminum alloys having metallic elements corresponding to the alloy series designations published by The Aluminum Association commencing with the numbers 1, 3, and 6 (or proprietary equivalents or other certifying body equivalents).9

    8See Aluminum Extrusions from the People's Republic of China: Antidumping Duty Order, 76 FR 30650 (May 26, 2011) (Order).

    9 For a complete description of the scope of the Order, see Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Issues and Decision Memorandum for the Final Results of the 2014-2015 Administrative Review of the Antidumping Duty Order on Aluminum Extrusions from the People's Republic of China,” dated concurrently with this notice (Issues and Decision Memorandum).

    Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 8481.90.9060, 8481.90.9085, 9031.90.9195, 8424.90.9080, 9405.99.4020, 9031.90.90.95, 7616.10.90.90, 7609.00.00, 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30, 7615.19.50, 7615.19.70, 7615.19.90, 7615.20.00, 7616.99.10, 7616.99.50, 8479.89.98, 8479.90.94, 8513.90.20, 9403.10.00, 9403.20.00, 7604.21.00.00, 7604.29.10.00, 7604.29.30.10, 7604.29.30.50, 7604.29.50.30, 7604.29.50.60, 7608.20.00.30, 7608.20.00.90, 8302.10.30.00, 8302.10.60.30, 8302.10.60.60, 8302.10.60.90, 8302.20.00.00, 8302.30.30.10, 8302.30.30.60, 8302.41.30.00, 8302.41.60.15, 8302.41.60.45, 8302.41.60.50, 8302.41.60.80, 8302.42.30.10, 8302.42.30.15, 8302.42.30.65, 8302.49.60.35, 8302.49.60.45, 8302.49.60.55, 8302.49.60.85, 8302.50.00.00, 8302.60.90.00, 8305.10.00.50, 8306.30.00.00, 8414.59.60.90, 8415.90.80.45, 8418.99.80.05, 8418.99.80.50, 8418.99.80.60, 8419.90.10.00, 8422.90.06.40, 8473.30.20.00, 8473.30.51.00, 8479.90.85.00, 8486.90.00.00, 8487.90.00.80, 8503.00.95.20, 8508.70.00.00, 8515.90.20.00, 8516.90.50.00, 8516.90.80.50, 8517.70.00.00, 8529.90.73.00, 8529.90.97.60, 8536.90.80.85, 8538.10.00.00, 8543.90.88.80, 8708.29.50.60, 8708.80.65.90, 8803.30.00.60, 9013.90.50.00, 9013.90.90.00, 9401.90.50.81, 9403.90.10.40, 9403.90.10.50, 9403.90.10.85, 9403.90.25.40, 9403.90.25.80, 9403.90.40.05, 9403.90.40.10, 9403.90.40.60, 9403.90.50.05, 9403.90.50.10, 9403.90.50.80, 9403.90.60.05, 9403.90.60.10, 9403.90.60.80, 9403.90.70.05, 9403.90.70.10, 9403.90.70.80, 9403.90.80.10, 9403.90.80.15, 9403.90.80.20, 9403.90.80.41, 9403.90.80.51, 9403.90.80.61, 9506.11.40.80, 9506.51.40.00, 9506.51.60.00, 9506.59.40.40, 9506.70.20.90, 9506.91.00.10, 9506.91.00.20, 9506.91.00.30, 9506.99.05.10, 9506.99.05.20, 9506.99.05.30, 9506.99.15.00, 9506.99.20.00, 9506.99.25.80, 9506.99.28.00, 9506.99.55.00, 9506.99.60.80, 9507.30.20.00, 9507.30.40.00, 9507.30.60.00, 9507.90.60.00, and 9603.90.80.50.

    The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99, as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this Order is dispositive.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs filed by parties in this review are addressed in the Issues and Decision Memorandum, which is incorporated herein by reference. A list of the issues which parties raised, and to which we respond in the Issues and Decision Memorandum, follows in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Results

    The Department reconsidered the necessity of applying adverse facts available (AFA), pursuant to sections 776(a) and (b) of the Tariff Act of 1930 (the Act), in the Preliminary Results with respect to Jangho and Guang Ya Group/Zhongya/Xinya 10 in light of the Department's policy concerning the conditional review of the PRC-wide entity.11 For additional explanation, see the Issues and Decision Memorandum at “Application of Facts Available and Use of Adverse Inference.” In addition, one company, JMA, withdrew from participation in this administrative review after the Preliminary Results.

    10 In prior segments of this proceeding, the Department found that Guang Ya Group, Zhongya, and Xinya were affiliated with each other and should be treated as a single entity. See, e.g., Aluminum Extrusions From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Rescission, in Part, 2010/12, 79 FR 96 (January 2, 2014) (2010-2012 Final Results); Aluminum Extrusions From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2012-2013, 79 FR 78784 (December 31, 2014) (2012-2013 Final Results); and Aluminum Extrusions From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2013-2014, 80 FR 75060 (December 1, 2015) (2013-2014 Final Results). See also Zhaoqing New Zhongya Aluminium Co., Ltd. v. United States, 70 F. Supp. 3d 1298 (CIT May 27, 2015) and Zhaoqing New Zhongya Aluminum Co., Ltd. et al. v. United States, 887 F. Supp. 2d 1301, 1310 (CIT 2012).

    11See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963, 65970 (November 4, 2013) (Conditional Review of NME Entity Notice).

    Companies Eligible for a Separate Rate

    In our Preliminary Results, we determined that nine companies were eligible for a separate rate.12 These companies are: Allied Maker Limited; Birchwoods (Lin'an) Leisure Products Co., Ltd.; Changzhou Changzheng Evaporator Co., Ltd.; Dongguan Aoda Aluminum Co., Ltd.; JMA (HK) Company Limited (JMA); Kam Kiu Aluminium Products Sdn. Bhd.; Metaltek Group Co., Ltd.; Taishan City Kam Kiu Aluminium Extrusion Co., Ltd.; and Tianjin Jinmao Import & Export Corp., Ltd. We received no information since the issuance of the Preliminary Results that provides a basis for reconsideration of this determination. Therefore, the Department continues to find that these nine companies are eligible for a separate rate. For further discussion with respect to the application of a separate rate to JMA, see the Issues and Decision Memorandum at Comment 2.

    12See Preliminary Results, 81 FR at 38666.

    Rate for Non-Examined Companies Which Are Eligible for a Separate Rate

    The separate rate for non-selected companies is normally the amount equal to the weighted average of the calculated weighted-average dumping margins established for mandatory respondents, excluding any margins that are zero, de minimis, or based entirely on adverse facts available.13 In the Preliminary Results, 14 consistent with the Department's practice when addressing such a factual scenario,15 we assigned the non-examined, separate-rate companies a rate that was not zero, de minimis, or based entirely on facts available. Specifically, we assigned the non-examined, separate-rate companies a margin of 86.01 percent, the sole margin calculated in the most recently completed segment of this proceeding for the mandatory respondent and applied to the non-examined separate-rate respondents in that segment of the proceeding.16 No parties commented on the methodology for calculating this separate rate.17 For the final results, we continue to apply this approach in accordance with section 735(c)(5) of the Act.18

    13 Neither the Tariff Act of 1930, as amended (the Act) nor the Department's regulations address the establishment of the rate applied to individual separate rate companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. The Department's practice in administrative reviews involving limited selection based on exporters accounting for the largest volumes of exports has been to look to section 735(c)(5) of the Act for guidance, which provides instructions for calculating the all-others rate in an antidumping investigation.

    14See Preliminary Results, 81 FR at 38666.

    15See Narrow Woven Ribbons With Woven Selvedge From Taiwan; Final Results of Antidumping Duty Administrative Review; 2013-2014, 81 FR 22578 (April 18, 2016) and accompanying Issues and Decision Memorandum at Comment 1; see also Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews and Rescission of Reviews in Part, 73 FR 52823, 52824 (September 11, 2008) and accompanying Issues and Decision Memorandum at Comment 16. This is also consistent with the Department's determination in prior segments of this proceeding. See 2010-2012 Final Results, 79 FR at 99; 2012-2013 Final Results, 79 FR at 78786; and 2013-2014 Final Results, 80 FR at 75062. See also Yangzhou Bestpak Gifts & Crafts Co., Ltd. v. United States, 716 F.3d 1370, 1374 (Fed. Cir. 2013) (recognizing and affirmatively discussing the Department's normal methodology for calculating a separate rate).

    16See 2013-2014 Final Results, 80 FR at 75062-75063.

    17 We note that, while Petitioner commented on the rate to assign to one company found to be eligible for a separate rate, JMA, Petitioner's comments were specific to circumstances involving JMA, not the Department's overall methodology for determining the rate to assign to non-examined separate-rate companies. For further discussion with respect to the application of a separate rate to JMA, see the Issues and Decision Memorandum at Comment 2.

    18 As explained in the Issues and Decision Memorandum in the section “Application of Facts Available and Use of Adverse Inference,” the Department finds for these final results that the application of AFA to the two mandatory respondents in this review, Jangho and Guang Ya Group/Zhongya/Xinya, is not necessary in light of the Department's recent change in practice concerning the conditional review of the PRC-wide entity. Under this policy, the PRC-wide entity will not be under review unless a party specifically requests, or the Department self-initiates, a review of the entity. See Conditional Review of NME Entity Notice, 78 FR at 65970. Because no party requested a review of the PRC-wide entity in this review, the entity is not under review and the entity's rate from the most-recently completed administrative review (i.e., 33.28 percent) is not subject to change. See 2013-2014 Final Results, 80 FR at 75063. While we no longer find it necessary to apply AFA to Jangho and Guang Ya Group/Zhongya/Xinya, we note that the 33.28 percent rate applicable to the PRC-wide entity (which includes to Jangho, Guang Ya Group/Zhongya/Xinya, and 23 other companies subject to this review) was determined on the basis of AFA. See Aluminum Extrusions From the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 76 FR 18524, 18529 (April 4, 2011).

    Determination of No Shipments

    In the Preliminary Results, the Department determined that Xin Wei Aluminum Company Limited and Permasteelisa Hong Kong Limited had no shipments during the POR.19 No party commented on that determination and we have received no information to contradict this determination. Therefore, the Department continues to determine that Xin Wei Aluminum Company Limited and Permasteelisa Hong Kong Limited had no shipments of subject merchandise during the POR, and will issue appropriate liquidation instructions to U.S. Customs and Border Protection (CBP) that are consistent with our “automatic assessment” clarification, for these final results.20

    19See Preliminary Results, 81 FR at 38666. We note that we did not make a preliminary determination of no shipments with regard to Permasteelisa South China Factory because Permasteelisa South China Factory was not granted separate rate status in a prior segment of this proceeding. See, e.g., 2013-2014 Final Results, 80 FR at 75063, footnote 30. Our determination concerning Permasteelisa South China Factory remains unchanged for these final results.

    20See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694, 65695 (October 24, 2011) (Assessment Practice Refinement).

    PRC-Wide Entity

    For purposes of these final results, the Department finds that Jangho and Guang Ya Group/Zhongya/Xinya are not eligible for a separate rate and are part of the PRC-wide entity. For a full explanation, see the Issues and Decision Memorandum at 5-6.

    In addition, the Department found in the Preliminary Results that 21 companies subject to this review were not eligible for separate-rate status because they did not submit separate-rate applications or certifications; those companies are: Belton (Asia) Development Ltd.; Classic & Contemporary Inc.; Danfoss Micro Channel Heat Exchanger (Jia Xing) Co., Ltd.; Dongguan Golden Tiger Hardware Industrial Co., Ltd.; Ever Extend Ent. Ltd.; Fenghua Metal Product Factory; FookShing Metal & Plastic Co. Ltd.; Foshan Golden Source Aluminum Products Co., Ltd.; Global Point Technology (Far East) Limited; Gold Mountain International Development Limited; Golden Dragon Precise Copper Tube Group, Inc.; Hebei Xusen Wire Mesh Products Co., Ltd.; Jackson Travel Products Co., Ltd.; New Zhongya Aluminum Factory; Shanghai Automobile Air-Conditioner Accessories Co., Ltd.; Southwest Aluminum (Group) Co., Ltd.; Suzhou NewHongJi Precision Part Co., Ltd.; Union Aluminum (SIP) Co.; Whirlpool Canada L.P.; Whirlpool Microwave Products Development Ltd.; and Xin Wei Aluminum Co.21 The Department also found in the Preliminary Results that two companies subject to this review, Atlas Integrated Manufacturing Ltd. and Genimex Shanghai, Ltd., submitted separate-rate applications that did not demonstrate eligibility for a separate rate.22 As a result, the Department found in the Preliminary Results that these 23 companies are also part of the PRC-wide entity.23 For purposes of these final results, the Department continues to find that these 23 companies are not eligible for a separate rate and are part of the PRC-wide entity.

    21Id., 81 FR at 38665. We note that one company, Zhaoqing New Zhongya Aluminum Co., Ltd. (New Zhongya), was determined to have been succeeded by Guangdong Zhongya Aluminum Company Limited (Guangdong Zhongya) in a changed circumstances review. See Aluminum Extrusions From the People's Republic of China: Final Results of Changed Circumstances Review, 77 FR 54900 (September 6, 2012). Thus, despite the fact that a review was initiated of New Zhongya, it is not being included among these 21 companies because its successor in interest, Guangdong Zhongya, is part of the Guang Ya Group/Zhongya/Xinya single entity.

    22See Preliminary Results, 81 FR at 38665.

    23Id., 81 FR at 38667.

    Under the Department's policy regarding conditional review of the PRC-wide entity, the PRC-wide entity will not be under review unless a party specifically requests, or the Department self-initiates, a review of the entity.24 Because no party requested a review of the PRC-wide entity in this review, the entity is not under review and the entity's rate from the previous administrative review (i.e., 33.28 percent) is not subject to change.25

    24See Conditional Review of NME Entity Notice, 78 FR at 65970.

    25See 2013-2014 Final Results, 80 FR at 75063.

    Adjustments for Countervailable Subsidies

    Because no mandatory respondent established eligibility for an adjustment under section 777A(f) of the Act for countervailable domestic subsidies, the Department, for these final results, did not make an adjustment pursuant to section 777A(f) of the Act for countervailable domestic subsidies for the separate-rate recipients.26

    26See Preliminary Decision Memorandum at 20.

    Pursuant to section 772(c)(1)(C) of the Act, the Department made an adjustment for countervailable export subsidies for the separate-rate recipients. Specifically, we adjusted the assigned separate rate by deducting the simple average of the countervailable export subsidies determined for the individually examined respondents in the 2013 countervailing duty administrative review.27

    27See Aluminum Extrusions From the People's Republic of China: Final Results, and Partial Rescission of Countervailing Duty Administrative Review; 2013, 80 FR 77325 (December 14, 2015) and Aluminum Extrusions From the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2013, 81 FR 15238 (March 22, 2016), as corrected in Aluminum Extrusions from the People's Republic of China: Notice of Correction to Amended Final Results of Countervailing Duty Administrative Review; 2013, 81 FR 31227 (May 18, 2016). See also Preliminary Decision Memorandum at Attachment 1 for the calculation of the countervailable export subsidies deducted from the assigned separate rate.

    For the PRC-wide entity, since the entity is not currently under review, no adjustments were warranted to its rate, as it is not subject to change.28

    28See Conditional Review of NME Entity Notice, 78 FR at 65970. As the rate for the PRC-wide entity is not subject to change in the instant review, the adjusted margin we are applying to the PRC-wide entity in the instant review, 33.18 percent, is net of the countervailable domestic and export subsidies determined in the 2012-2013 Final Results. See 2012-2013 Final Results, 79 FR at 78787; see also 2013-2014 Final Results, 80 FR at 75063, footnote 27.

    Final Results of Review

    The Department determines that the following weighted-average dumping margins exist for the 2014-2015 POR:

    Exporter Weighted-
  • Average
  • dumping
  • margin
  • (percent)
  • Margin
  • adjusted for
  • liquidation
  • and cash
  • deposit
  • purposes
  • (percent)
  • Allied Maker Limited 86.01 85.94 Birchwoods (Lin'an) Leisure Products Co., Ltd 86.01 85.94 Changzhou Changzheng Evaporator Co., Ltd 86.01 85.94 Dongguan Aoda Aluminum Co., Ltd 86.01 85.94 JMA (HK) Company Limited 86.01 85.94 Kam Kiu Aluminium Products Sdn Bhd 29 86.01 85.94 Metaltek Group Co., Ltd 86.01 85.94 Tianjin Jinmao Import & Export Corp., Ltd 86.01 85.94

    Additionally,29 the Department determines for these final results that the following companies are part of the PRC-wide entity: Jangho (which includes Guangzhou Jangho Curtain Wall System Engineering Co., Ltd. and Jangho Curtain Wall Hong Kong Ltd.); Guang Ya Group/Zhongya/Xinya (which includes Guang Ya Aluminium Industries Co., Ltd.; Foshan Guangcheng Aluminium Co., Ltd.; Kong Ah International Company Limited; Guang Ya Aluminium Industries (Hong Kong) Ltd.; Guangdong Zhongya Aluminium Company Limited; Zhongya Shaped Aluminium (HK) Holding Limited; Karlton Aluminum Company Ltd.; and Xinya Aluminum & Stainless Steel Product Co., Ltd.); Atlas Integrated Manufacturing Ltd.; Belton (Asia) Development Ltd.; Classic & Contemporary Inc.; Danfoss Micro Channel Heat Exchanger (Jia Xing) Co., Ltd.; Dongguan Golden Tiger Hardware Industrial Co., Ltd.; Ever Extend Ent. Ltd.; Fenghua Metal Product Factory; FookShing Metal & Plastic Co. Ltd.; Foshan Golden Source Aluminum Products Co., Ltd.; Genimex Shanghai, Ltd.; Global Point Technology (Far East) Limited; Gold Mountain International Development Limited; Golden Dragon Precise Copper Tube Group, Inc.; Hebei Xusen Wire Mesh Products Co., Ltd.; Jackson Travel Products Co., Ltd.; New Zhongya Aluminum Factory; Shanghai Automobile Air-Conditioner Accessories Co., Ltd.; Southwest Aluminum (Group) Co., Ltd.; Suzhou NewHongJi Precision Part Co., Ltd.; Union Aluminum (SIP) Co.; Whirlpool Canada L.P.; Whirlpool Microwave Products Development Ltd.; and Xin Wei Aluminum Co. The rate established for the PRC-wide entity in the previous administrative review is 33.28 percent.30

    29 Although the Department initiated a review for both Taishan City Kam Kiu Aluminium Extrusion Co., Ltd. and Kam Kiu Aluminium Products Sdn Bhd, it is apparent from the company's separate-rate certification that Kam Kiu Aluminium Products Sdn Bhd is the exporter and Taishan City Kam Kiu Aluminium Extrusion Co., Ltd. is a producer only; thus, Kam Kiu Aluminium Products Sdn Bhd is the appropriate party to which to grant the separate rate status.

    30See 2013-2014 Final Results, 80 FR at 75063-75064.

    Assessment

    Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review in the Federal Register. Consistent with the Department's assessment practice in NME cases, if the Department determines that an exporter under review had no shipments of subject merchandise, any suspended entries that entered under the exporter's case number (i.e., at that exporter's rate) will be liquidated at the PRC-wide rate.31 For the companies eligible for a separate rate, the Department will instruct CBP to assess antidumping duties on the company's entries of subject merchandise at the rates listed above in the section “Final Results of Review.”

    31See Assessment Practice Refinement, 76 FR at 65694.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the companies eligible for a separate rate, the cash deposit rate will that listed above in the section “Final Results of Review;” (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the exporter-specific rate published for the most-recently completed segment of this proceeding in which the exporter was reviewed; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be that established for the PRC-wide entity, which is 33.28 percent; 32 and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter with the subject merchandise. These deposit requirements, when imposed, shall remain in effect until further notice.

    32See 2013-2014 Final Results, 80 FR at 75063.

    Notification to Importers

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.

    Notification to Interested Parties Regarding Administrative Protective Order

    This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).

    Dated: November 21, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Issues and Decision Memorandum Summary Background Scope of the Order Application of Facts Available and Use of Adverse Inference Discussion of the Issues Comment 1: Rate to Assign to Jangho Comment 2: Rate to Assign to JMA Conclusion
    [FR Doc. 2016-28502 Filed 11-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-122-854] Supercalendered Paper From Canada: Preliminary Results of Countervailing Duty Expedited Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is conducting an expedited review of the countervailing duty (CVD) order on supercalendered paper (SC paper) from Canada. The period of expedited review (POR) is January 1, 2014, through December 31, 2014. We preliminarily determine that Irving Paper Limited received countervailable subsidies during the POR. We also preliminarily determine that Catalyst Paper received de minimis countervailable subsidies. Interested parties are invited to comment on these preliminary results.

    DATES:

    Effective November 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Nicholas Czajkowski or Toby Vandall, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1395 and (202) 482-1664, respectively.

    Scope of the Order

    The product covered by this order is SC paper. A full description of the scope of the order is contained in the Preliminary Decision Memorandum, which is hereby adopted by this notice.1

    1See Memorandum from James Maeder, Senior Director, Office I, for Antidumping and Countervailing Duty Operations, to Gary Taverman, Associate Deputy Assistant Secretary for Enforcement and Compliance, “Preliminary Results of Expedited Review of the Countervailing Duty Order on Supercalendered Paper from Canada,” dated concurrently with this notice (Preliminary Decision Memorandum).

    Methodology

    On December 10, 2015, the Department issued a countervailing duty order on SC paper from Canada.2 The Department is conducting this CVD expedited review in accordance with 19 CFR 351.214(k). For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum. The list of topics discussed in the Preliminary Decision Memorandum is included as an Appendix to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/index.html. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    2See Supercalendered Paper From Canada: Countervailing Duty Order, 80 FR 76668 (December 10, 2015).

    We calculated a CVD rate for each producer/exporter of the subject merchandise that requested an expedited review.

    Preliminary Results of Review

    As a result of this review, we preliminarily determine the countervailable subsidy rates to be:

    Company Subsidy rate Catalyst Paper Corporation (Catalyst) 0.79 percent (de minimis) Irving Paper Limited (Irving) 7.99 percent Disclosure and Public Comment

    The Department will disclose to parties to this proceeding the calculations performed in connection with these preliminary results within five days publication of this notice.3 Interested parties may submit case briefs within 30 days of publication of these preliminary results and rebuttal briefs no later than five days after the deadline for filing case briefs.4 Rebuttal briefs must be limited to issues raised in the case briefs.5 Parties who submit case or rebuttal briefs are requested to submit with the argument: (1) A statement of the issue; (2) a brief summary of the argument; and, (3) a table of authorities.6 Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. Requests should contain the party's name, address, and telephone number; the number of participants; and a list of the issues to be discussed. If a request for a hearing is made, we will inform parties of the scheduled date for the hearing which will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    3See 19 CFR 351.224(b).

    4See 19 CFR 351.309(c)(1)(ii) and (d)(1).

    5See 19 CFR 351.309(d)(2).

    6See 19 CFR 351.309(c)(2) and (d)(2).

    Unless the deadline is extended pursuant to 19 CFR 351.214(h)(i)(2), the Department will issue the final results of this expedited review, including the results of its analysis of issues raised in any written briefs, within 90 days after the date of publication of these preliminary results.

    Cash Deposit Instructions

    Pursuant to section 19 CFR 351.214(k)(iii), the final results of this expedited review will not be the basis for the assessment of countervailing duties. Upon issuing the final results, the Department intends to instruct Customs and Border Protection (CBP) to collect cash deposits of estimated countervailing duties for the companies subject to this expedited review, at the rates shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this expedited review. These cash deposit requirements, when imposed, shall remain in effect until further notice. Pursuant to 19 CFR 351.214(k)(iv), however, if either Catalyst and/or Irving has a final estimated net subsidy rate that is zero or de minimis, they will be excluded from the order.

    This determination is issued and published pursuant to sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.214(h) and (k).

    Dated: November 22, 2016. Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. Appendix

    List of Topics Discussed in the Preliminary Decision Memorandum

    I. Summary

    II. Background

    III. Scope of the Order

    IV. Subsidies Valuation

    V. Analysis of Programs

    VI. Disclosure and Public Comment

    VII. Conclusion

    [FR Doc. 2016-28505 Filed 11-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF059 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council (Council) will hold public meetings of the Council and its Committees.

    DATES:

    The meeting will be held on Monday December 12 through Thursday, December 15, 2016. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meetings will be held at: Royal Sonesta Harbor Court, 550 Light Street, Baltimore, MD 21202, telephone: (410) 234-0550.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331 or on their Web site at www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The following items are on the agenda, though agenda items may be addressed out of order (changes will be noted on the Council's Web site when possible).

    Agenda Monday, December 12, 2016 Executive Committee (CLOSED MEETING)

    Discuss Council awards and process and MAFMC/NEFMC joint management issue.

    Mackerel, Squid, Butterfish Meeting as a Committee of the Whole Squid Amendment

    Review Committee and Advisory Panel input and adopt alternatives for the public hearing document.

    Lenfest Ecosystem Task Force Report Industry-Funded Monitoring Amendment—Final Action

    Review public comments and select final preferred alternatives.

    Law Enforcement Report Consideration of NJ Request for SMZ Status

    Final action.

    BOEM New York Energy Area Presentation Tuesday, December 13, 2016 Council Photo Monkfish Specifications

    Review Committee recommendations and select final preferred alternatives.

    HMS Amendment

    Receive a presentation on Dusky Shark Management Measures and consider developing Council comments.

    Observer Safety Program Review National Standard 1 Guidelines

    Meeting with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Boards.

    Scup Commercial Quota Framework/Addendum

    Review initial analysis and Monitoring Committee and Advisory Panel comments.

    Summer Flounder Allocation Review Study

    Review and discuss commercial/recreational allocation model results and peer review summary.

    Sex-Specific Summer Flounder Assessment Model Update Wednesday, December 14, 2016 Meeting with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Boards. Summer Flounder Amendment

    Update progress, discuss amendment timeline and action plan.

    Effects of Ocean Acidification on Summer Flounder Reproduction and Productivity Summer Flounder, Scup, Black Sea Bass Recreational Specifications

    Review Monitoring Committee and Advisory Panel recommendations, adopt recommendations for 2017 management measures, BSB discussion on state-by-state recreational performance relative to regional targets and ASMFC Addendum for summer flounder (Board action).

    Thursday, December 15, 2016 2017 Implementation Plan

    Review and adopt 2017 Implementation Plan.

    Business Session

    The day will conclude with brief reports from the National Marine Fisheries Service's GARFO and the Northeast Fisheries Science Center, NOAA's Office of General Counsel, the ASMFC, the New England and South Atlantic Fishery Council's liaisons and the Regional Planning Body Report. The Council will also receive the Council's Executive Director's Report, the Science Report, Committee Reports, and discuss any continuing and/or new business.

    Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens act, provided that the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: November 22, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28510 Filed 11-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF037 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Cost Recovery Programs AGENCY:

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

    ACTION:

    Notice of standard prices and fee percentage.

    SUMMARY:

    NMFS publishes standard prices and fee percentages for cost recovery for the Amendment 80 Program, the American Fisheries Act (AFA) Program, the Aleutian Islands Pollock (AIP) Program, and the Western Alaska Community Development Quota (CDQ) groundfish and halibut Programs. The fee percentage for 2016 is 0.37 percent for the Amendment 80 Program, 0.10 percent for the AFA inshore cooperatives, 0.10 percent for the AFA catcher/processor sector, 0.17 percent for the AFA mothership cooperative, 0 percent for the AIP program, and 0.29 percent for the CDQ groundfish and halibut Programs. This action is intended to provide the 2016 standard prices and fee percentages to calculate the required payment for cost recovery fees due by December 31, 2016.

    DATES:

    Effective November 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Carl Greene, Fee Coordinator, 907-586-7105.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 304(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes and requires the collection of cost recovery fees for limited access privilege programs and the CDQ Program. Cost recovery fees recover the actual costs directly related to the management, data collection, and enforcement of the programs. Section 304(d) of the Magnuson-Stevens Act mandates that cost recovery fees not exceed three percent of the annual ex-vessel value of fish harvested by a program subject to a cost recovery fee, and that the fee be collected either at the time of landing, filing of a landing report, or sale of such fish during a fishing season or in the last quarter of the calendar year in which the fish is harvested.

    NMFS manages the Amendment 80 Program, AFA Program, and AIP Program as limited access privilege programs. On January 5, 2016, NMFS published a final rule to implement cost recovery for these three limited access privilege programs and the CDQ groundfish and halibut programs (81 FR 150). The designated representative (for the purposes of cost recovery) for each program is responsible for submitting the fee payment to NMFS on or before the due date of December 31 of the year in which the landings were made. The total dollar amount of the fee due is determined by multiplying the NMFS published fee percentage by the ex-vessel value of all landings under the program made during the fishing year. NMFS publishes this notice of the fee percentages for the Amendment 80, AFA, AIP, and CDQ groundfish and halibut fisheries in the Federal Register by December 1 each year.

    Standard Prices

    The fee liability is based on the ex-vessel value of fish harvested in each program. For purposes of calculating cost recovery fees, NMFS calculates a standard ex-vessel price (standard price) for each species. A standard price is determined using information on landings purchased (volume) and ex-vessel value paid (value). For most groundfish species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each species. The standard prices are described in U.S. dollars per pound for landings made during the year. The standard prices for all species in the Amendment 80, AFA, AIP, and CDQ groundfish and halibut programs are listed in Table 1. Each landing made under each program is multiplied by the appropriate standard price to arrive at an ex-vessel value for each landing. These values are summed together to arrive at the ex-vessel value of each program (fishery value).

    Fee Percentage

    NMFS calculates the fee percentage each year according to the factors and methods described in Federal regulations at 50 CFR 679.33(c)(2), 679.66(c)(2), 679.67(c)(2), and 679.95(c)(2). NMFS determines the fee percentage that applies to landings made during the year by dividing the total costs directly related to the management, data collection, and enforcement of each program (direct program costs) during the year by the fishery value. NMFS captures direct program costs through an established accounting system that allows staff to track labor, travel, contracts, rent, and procurement. For 2016, the direct program costs were tracked from February 4, 2016 (the effective date of the rule), to September 30, 2016 (the end of the fiscal year). In subsequent years, direct program costs will be calculated based on a full fiscal year. NMFS will provide an annual report that summarizes direct program costs for each of the programs in early 2017. NMFS calculates the fishery value as described under the section “Standard Prices.”

    Amendment 80 Program Standard Prices and Fee Percentage

    The Amendment 80 Program allocates total allowable catches (TACs) of groundfish species, other than Bering Sea pollock, to identified trawl catcher/processors in the Bering Sea and Aleutian Islands (BSAI). The Amendment 80 Program allocates a portion of the BSAI TACs of six species: Atka mackerel, Pacific cod, flathead sole, rock sole, yellowfin sole, and Aleutian Islands Pacific ocean perch. Participants in the Amendment 80 sector have established cooperatives to harvest these allocations. Each Amendment 80 cooperative is responsible for payment of the cost recovery fee for fish landed under the Amendment 80 Program. Cost recovery requirements for the Amendment 80 Program are at 50 CFR 679.95.

    For most Amendment 80 species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species. For rock sole, NMFS calculates a separate standard price for two periods—January 1 through March 31, and April 1 through October 31. The volume and value information is obtained from the First Wholesale Volume and Value Report, and the Pacific Cod Ex-Vessel Volume and Value Report.

    Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0.37 percent for the Amendment 80 Program. For 2016, NMFS applied the fee percentage to each Amendment 80 species landing that was debited from an Amendment 80 cooperative quota allocation between February 4 and December 31 to calculate the Amendment 80 fee liability for each Amendment 80 cooperative. The 2016 fee payments must be submitted to NMFS on or before December 31, 2016. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.95(a)(3)(iv).

    AFA Standard Price and Fee Percentages

    The AFA allocates the Bering Sea directed pollock fishery TAC to three sectors—catcher/processor, mothership, and inshore. Each sector has established cooperatives to harvest the sector's exclusive allocation. These cooperatives are responsible for paying the fee for Bering Sea pollock landed under the AFA. Cost recovery requirements for the AFA sectors are at 50 CFR 679.66.

    NMFS calculates the standard price for pollock using the most recent annual value information reported to the Alaska Department of Fish & Game for the Commercial Operator's Annual Report and compiled in the Alaska Commercial Fisheries Entry Commission Gross Earnings data for Bering Sea pollock. Due to the time required to compile the data, there is a one-year delay between the gross earnings data year and the fishing year to which it is applied. For example, NMFS used 2015 gross earnings data to calculate the standard price for 2016 pollock landings.

    Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0.10 percent for the AFA inshore sector, 0.10 percent for the AFA catcher/processor sector, and 0.17 percent for the AFA mothership sector. For 2016, NMFS applied the fee percentage to each AFA inshore cooperative, AFA mothership cooperative, and AFA catcher/processor sector landing of Bering Sea pollock debited from its AFA pollock fishery allocation between February 4 and December 31 to calculate the AFA fee liability for each AFA cooperative. The 2016 fee payments must be submitted to NMFS on or before December 31, 2016. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.66(a)(4)(iv).

    AIP Program Standard Price and Fee Percentage

    The AIP Program allocates the Aleutian Islands directed pollock fishery TAC to the Aleut Corporation, consistent with the Consolidated Appropriations Act of 2004 (Pub. L. 108-109), and its implementing regulations. Annually, prior to the start of the pollock season, the Aleut Corporation provides NMFS with the identity of its designated representative for harvesting the Aleutian Islands directed pollock fishery TAC. The same individual is responsible for the submission of all cost recovery fees for pollock landed under the AIP Program. Cost recovery requirements for the AIP Program are at 50 CFR 679.67.

    NMFS calculates the standard price for pollock using the most recent annual value information reported to the Alaska Department of Fish & Game for the Commercial Operator's Annual Report and compiled in the Alaska Commercial Fisheries Entry Commission Gross Earnings data for Aleutian Islands pollock. Due to the time required to compile the data, there is a one-year delay between the gross earnings data year and the fishing year to which it is applied. For example, NMFS used 2015 gross earnings data to calculate the standard price for 2016 pollock landings.

    For the 2016 fishing year, the Aleut Corporation did not select any participants to harvest or process the Aleutian Islands directed pollock fishery TAC, and most of that TAC was reallocated to the Bering Sea directed pollock fishery TAC. Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0 percent for the AIP Program.

    CDQ Standard Price and Fee Percentage

    The CDQ Program was implemented in 1992 to provide access to BSAI fishery resources to villages located in Western Alaska. Section 305(i) of the Magnuson-Stevens Act identifies 65 villages eligible to participate in the CDQ Program and the six CDQ groups to represent these villages. CDQ groups receive exclusive harvesting privileges of the TACs for a broad range of crab species, groundfish species, and halibut. NMFS implemented a CDQ cost recovery program for the BSAI crab fisheries in 2005 (70 FR 10174, March 2, 2005) and published the cost recovery fee percentage for the 2016/2017 crab fishing year on July 14, 2016 (81 FR 45458). This notice provides the cost recovery fee percentage for the CDQ groundfish and halibut programs. Each CDQ group is subject to cost recovery fee requirements for landed groundfish and halibut, and the designated representative of each CDQ group is responsible for submitting payment for their CDQ group. Cost recovery requirements for the CDQ Program are at 50 CFR 679.33.

    For most CDQ groundfish species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species. The volume and value information is obtained from the First Wholesale Volume and Value Report and the Pacific Cod Ex-Vessel Volume and Value Report. For CDQ halibut and fixed-gear sablefish, NMFS calculates the standard prices using information from the Individual Fishing Quota (IFQ) Ex-Vessel Volume and Value Report, which collects information on both IFQ and CDQ volume and value.

    Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0.29 percent for the CDQ groundfish and halibut programs. For 2016, NMFS applied the calculated CDQ fee percentage to all CDQ groundfish and halibut landings made between February 4 and December 31 to calculate the CDQ fee liability for each CDQ group. The 2016 fee payments must be submitted to NMFS on or before December 31, 2016. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.33(a)(3)(iv).

    Table 1—Standard Ex-Vessel Prices by Species for the 2016 Fishing Year Species Gear type Reporting period Standard
  • ex-vessel
  • price per
  • pound
  • ($)
  • Arrowtooth flounder All February 4, 2016-October 31, 2016 $0.21 Atka mackerel All February 4, 2016-October 31, 2016 0.26 Flathead sole All February 4, 2016-October 31, 2016 0.20 Greenland turbot All February 4, 2016-October 31, 2016 0.46 CDQ halibut Fixed gear October 1, 2015-September 30, 2016 6.02 Pacific cod Fixed gear February 4, 2016-October 31, 2016 0.29 Trawl gear February 4, 2016-October 31, 2016 0.26 Pacific ocean perch All February 4, 2016-October 31, 2016 0.19 Pollock All January 1, 2015-December 31, 2015 0.15 Rock sole All February 4, 2016-March 31, 2016 0.18 All April 1, 2016-October 31, 2016 0.14 Sablefish Fixed gear October 1, 2015-September 30, 2016 5.11 Trawl gear February 4, 2016-October 31, 2016 1.08 Yellowfin sole All February 4, 2016-October 31, 2016 0.14
    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 22, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28598 Filed 11-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF019 Caribbean Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Caribbean Fishery Management Council (Council) will hold its 158th meeting.

    DATES:

    The meeting will be held on December 13-14, 2016. The Council will convene on Tuesday, December 13, 2016, from 9 a.m. to 5:30 p.m., and will reconvene on Wednesday, December 14, 2016, from 9 a.m. to 5 p.m.

    ADDRESSES:

    The Frenchman's Reef & Morning Star Marriott Beach Resort, 5 Estate Bakkeroe, St. Thomas, USVI

    FOR FURTHER INFORMATION CONTACT:

    Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918, telephone (787) 766-5926.

    SUPPLEMENTARY INFORMATION:

    The Council will hold its 158th regular Council Meeting to discuss the items contained in the following agenda:

    December 13, 2016, 9 a.m.-5:30 p.m. ○ Call to Order ○ Adoption of Agenda ○ Consideration of 157th Council Meeting Verbatim Transcriptions ○ Executive Director's Report ○ Scientific and Statistical Committee Report—Dr. Richard Appeldoorn ○ SEDAR 2017 Update on Life History Workshop and Spiny Lobster ○ Accountability Measure Timing-Update on Status Following Secretarial Submission ○ Island-based Fishery Management Plans —Review of Proposed Actions and Alternatives —Timeline Status, SSC and DAP Meeting Schedule, Next Council Steps —Goals and Objectives —Puerto Rico —St. Thomas/St. John —St. Croix ○ Outcomes from public hearings on the development of a permit program for harvest of Snapper Unit 2 from the Puerto Rico EEZ ○ Developing an alternative annual catch limit (ACL) benchmark for application of accountability measures (AMs) ○ Initiating development of a Fishery Ecosystem Plan for the U.S. Caribbean ○ Identification of ACL overages and the need to apply AMs in the 2017 fishing year ○ Ocean Economics of Puerto Rico and the U.S. Virgin Islands—Jeffery Adkins ○ Other Business —Exempted Fishing Permit for Puerto Rico—Department of Natural and Environmental Resources PUBLIC COMMENT PERIOD (5-minutes presentations) ○ Administrative Matters —CY-2017 —Closed Session December 14, 2016, 9 a.m.-5 p.m. ○ Puerto Rico Fishers Spiny Lobster Data Collection Initiative ○ Marine Recreational Information Program-Status of Regional Implementation Plan ○ Atlantic HMS Fisheries—Delisse Ortíz/Jen Cudney ○ SEAMAP Update ○ Outreach and Education Report—Dr. Alida Ortíz ○ Update on Ongoing Reef Fish and Spiny Lobster Endangered Species 7 Consultation—Jennifer Lee—SERO/PRD ○ Enforcement Issues: —Puerto Rico-DNER —U.S. Virgin Islands-DPNR —U.S. Coast Guard —NMFS/NOAA ○ Meetings Attended by Council Members and Staff PUBLIC COMMENT PERIOD (5-minute presentations) ○ Other Business ○ Next Meeting(s)

    The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. To further accommodate discussion and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.

    The meeting is open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be subjects for formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice, and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918, telephone (787) 766-5926, at least 5 days prior to the meeting date.

    Dated: November 22, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-28509 Filed 11-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE74 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Waterfront Improvement Projects AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Department of the Navy (Navy) to incidentally harass, by Level A and Level B harassment, marine mammals during construction activities associated with a waterfront improvement project at the Portsmouth Naval Shipyard (Shipyard) in Kittery, Maine.

    DATES:

    This authorization is effective from January 1, 2017 through December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Rob Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Availability

    An electronic copy of the Navy's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified area, the incidental, but not intentional, taking of small numbers of marine mammals, providing that certain findings are made and the necessary prescriptions are established.

    The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth.

    Under section 101(a)(5)(D), NMFS after providing notice and opportunity for public comment may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to the mitigation, monitoring, and reporting requirements contained within an IHA. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”

    Summary of Request

    On February 17, 2016, NMFS received an application from the Navy for the taking of marine mammals incidental to a waterfront improvement project. NMFS determined that the application was adequate and complete on April 1, 2016. The Navy is proposing to restore and modernize waterfront infrastructure associated with Dry Docks 1 and 3 at the Shipyard in Kittery, York County, Maine. The proposed action will include two waterfront improvement projects, structural repairs to Berths 11, 12, and 13, and replacement of the Dry Dock 3 caisson. The waterfront improvement projects will be constructed between October 2016 and October 2022, with in-water work expected to begin no earlier than January 2017. The requested IHA will be effective from January 1, 2017 through December 31, 2017. According to the project schedule work during the IHA period will only cover work occurring at Berth 11.

    Use of vibratory and impact pile driving for pile installation and removal as well as drilling is expected to produce underwater sound at levels that have the potential to result in limited injury and behavioral harassment of marine mammals. The term “pile driving” throughout this document includes vibratory driving, impact pile driving, vibratory pile extraction as well as pile drilling unless specified otherwise. Take, by Level B Harassment, may impact individuals of five species of marine mammals including harbor porpoise (Phocoena phocoena), gray seal (Halichoerus grypus), harbor seal (Phoca vitulina), hooded seal (Crystphora cristata) and harp seal (Pagophilus groenlandicus). As the next paragraph explains, we have determined, based on the best available information, that there may also be small numbers of take by Level A harassment of harbor porpoise, harbor seal, and gray seal.

    In August 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new Guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the August 4, 2016, Federal Register Notice (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of analyses based on our previous thresholds and have constraints that preclude the recalculation of take estimates, as well as consideration of where the action is in the agency's decision-making pipeline. In that Notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new Guidance, including: the scope of effects; how far in the process the applicant has progressed; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the Guidance is expected to affect our analysis.

    In this case, the Navy initially submitted a request for authorization on February 17, 2016, which NMFS found adequate and complete on April 1, 2016. The Navy requires issuance of the authorization in order to ensure that this critical national security infrastructure project is able to meet its necessary start date. The Guidance indicates that there is a greater likelihood of auditory injury for phocid pinnipeds (i.e., harbor seals, gray seals, hooded seals, and harp seals) and for high- frequency cetaceans (i.e., harbor porpoise) than was considered in our notice of proposed authorization (81 FR 52614; August 9, 2016) because the Level A harassment zones are larger for impact driving. To account for the larger Level A zone that exists for harbor porpoises and the seal species, we authorize the taking by Level A harassment of 10 harbor porpoises, 4 harbor seals and 2 gray seals. Level A take for hooded and harp seals is not anticipated or authorized (since the likelihood of even Level B take for these species is small). We also increased the shutdown zones from 10 m to 75 m during impact driving and from 10 meter (m) to 55 m during vibratory driving. With these changes, the required mitigation measures, and a robust monitoring and mitigation program NMFS believes impacts to the affected species or stocks will be minimized.

    In this analysis, we considered the potential for small numbers of harbor porpoises, harbor seals, and gray seals to incur auditory injury and found that it would not impact our determinations, including negligible impact determination. In summary, we have considered the new Guidance and believe that the likelihood of injury is adequately addressed in the analysis contained herein and appropriate mitigation measures are in place in the IHA.

    Description of the Specified Activity Overview

    The Navy is proposing to restore and modernize infrastructure associated with Dry Docks 1 and 3 at the Shipyard in Kittery, York County, Maine (See Figure 1-1 in the Application). The proposed action will include two waterfront improvement projects, structural repairs to Berths 11, 12, and 13 and replacement of the Dry Dock 3 caisson.

    The purpose of the proposed action is to modernize and maximize dry dock capabilities for performing current and future missions efficiently and with maximum flexibility. The need for the proposed action is to correct deficiencies associated with the pier structure at Berths 11, 12, and 13 and the Dry Dock 3 caisson and concrete seats to ensure that the Shipyard can continue to support its primary mission to service, maintain, and overhaul submarines. By supporting the Shipyard's mission, the proposed action will assist in meeting the larger need for the Navy to provide capabilities for training and equipping combat-capable naval forces ready to deploy worldwide. Proposed ac