Federal Register Vol. 81, No.233,

Federal Register Volume 81, Issue 233 (December 5, 2016)

Page Range87409-87800
FR Document

81_FR_233
Current View
Page and SubjectPDF
81 FR 87559 - Sunshine Act MeetingPDF
81 FR 87588 - Sunshine Act Meeting; Change of Time to Government In the Sunshine MeetingPDF
81 FR 87566 - Compliance Policy Guide Sec. 615.115 on Extralabel Use of Medicated Feeds for Minor Species; AvailabilityPDF
81 FR 87647 - United States Rail Service Issues; United States Rail Service Issues-Data CollectionPDF
81 FR 87472 - United States Rail Service Issues-Performance Data ReportingPDF
81 FR 87599 - Excepted ServicePDF
81 FR 87595 - Excepted ServicePDF
81 FR 87599 - Submission for OMB Emergency Review: OPM Form SF 15, Application for 10-Point Veteran Preference, OMB No. 3206-0001PDF
81 FR 87563 - Clinical Pharmacology Section of Labeling for Human Prescription Drug and Biological Products-Content and Format; Guidance for Industry; AvailabilityPDF
81 FR 87583 - 30-Day Notice of Proposed Information Collection: Financial Statement of Corporate Applicant for Cooperative Housing MortgagePDF
81 FR 87581 - 60-Day Notice of Proposed Information Collection: Affirmative Fair Housing Marketing PlanPDF
81 FR 87582 - 30-Day Notice of Proposed Information Collection: Uniform Physical Standards and Physical Inspection RequirementsPDF
81 FR 87580 - 30-Day Notice of Proposed Information Collection: FHA Adjustable Rate Mortgages (ARMS)PDF
81 FR 87579 - 30-Day Notice of Proposed Information Collection: Family Report, Moving to Work (MTW) Family ReportPDF
81 FR 87593 - Advisory Council on Employee Welfare and Pension Benefit Plans; Notice of Charter RenewalPDF
81 FR 87565 - Health Document Submission Requirements for Tobacco Products; Guidance for Industry; AvailabilityPDF
81 FR 87628 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Adopt a New Extended Life Priority Order Attribute Under Rule 4703, and To Make Related Changes to Rules 4702, 4752, 4753, 4754, and 4757PDF
81 FR 87594 - Advisory Board on Toxic Substances and Worker Health: Subcommittee on Evidentiary Requirements for Part B Lung DiseasePDF
81 FR 87509 - Notification of Submission to the Secretary of Agriculture; Pesticides; Removal of Obsolete InformationPDF
81 FR 87563 - Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 87456 - Tau-Fluvalinate; Pesticide TolerancePDF
81 FR 87454 - Special Local Regulation; Southern California Annual Marine Events for the San Diego Captain of the Port Zone-San Diego Parade of LightsPDF
81 FR 87463 - Oxathiapiprolin; Pesticide TolerancesPDF
81 FR 87553 - Peer Review of EPA's Biologically Based Dose-Response (BBDR) Model for Perchlorate in Drinking Water-Final List of Peer Reviewers, Notice of the Public Peer Review Meeting and Final Peer Review Charge QuestionsPDF
81 FR 87578 - Area Maritime Security Advisory Committee (AMSC), Eastern Great Lakes and Regional Sub-Committee VacanciesPDF
81 FR 87575 - Agency Information Collection Activities; Proposed Collection; Comment Request; Providing Information About Pediatric Uses of Medical DevicesPDF
81 FR 87570 - Agency Information Collection Activities; Proposed Collection; Comment Request; Recommended Glossary and Educational Outreach To Support Use of Symbols on Labels and in Labeling of In Vitro Diagnostic Devices Intended for Professional UsePDF
81 FR 87585 - Notice of Intent To Collect Fees on Public Land in Douglas County, Oregon, Roseburg District, Scaredman Recreation SitePDF
81 FR 87551 - Notice of Intent To Grant an Exclusive Patent LicensePDF
81 FR 87552 - Records Governing Off-the-Record Communications; Public NoticePDF
81 FR 87553 - Combined Notice of Filings #1PDF
81 FR 87569 - Public Meeting on Pre-Market Evaluation of Abuse-Deterrent Properties of Opioid Drug Products; Extension of Comment PeriodPDF
81 FR 87531 - Succession, Delegations of Authority, and Signature Authorities, No. IG-1313, Change 8PDF
81 FR 87550 - Native American Tribal Insignia DatabasePDF
81 FR 87560 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding CompaniesPDF
81 FR 87646 - Delegation of AuthorityPDF
81 FR 87560 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 87560 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 87636 - Proposed Collection; Comment RequestPDF
81 FR 87635 - Proposed Collection; Comment RequestPDF
81 FR 87633 - Submission for OMB Review; Comment RequestPDF
81 FR 87603 - Submission for OMB Review; Comment RequestPDF
81 FR 87637 - Submission for OMB Review; Comment RequestPDF
81 FR 87638 - Proposed Collection; Comment RequestPDF
81 FR 87644 - Proposed Collection; Comment RequestPDF
81 FR 87648 - Environmental Impact Statement for Cumberland Fossil Plant Coal Combustion Residual ManagementPDF
81 FR 87493 - Energy Conservation Program: Energy Conservation Standards for Residential FurnacesPDF
81 FR 87577 - Agency Information Collection Activities: Proposed Collection: Public Comment Request; Health Workforce ConnectorPDF
81 FR 87585 - Indian Gaming; Tribal-State Class III Gaming Compacts Taking Effect in the State of CaliforniaPDF
81 FR 87539 - Suspension Agreement on Sugar From Mexico; Administrative Review of the Agreement Suspending the Countervailing Duty Investigation on Sugar From MexicoPDF
81 FR 87541 - Antidumping Duty Suspension Agreement on Sugar From Mexico; Administrative ReviewPDF
81 FR 87543 - Prestressed Concrete Steel Rail Tie Wire From Mexico: Rescission of Antidumping Duty Administrative Review; 2015-2016PDF
81 FR 87544 - Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil, South Africa, and the Republic of Turkey: Affirmative Final Determinations of Sales at Less Than Fair Value and Affirmative Final Determinations of Critical Circumstances for Brazil and the Republic of TurkeyPDF
81 FR 87552 - President's Council of Advisors on Science and TechnologyPDF
81 FR 87548 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 87531 - Lyon-Mineral Resource Advisory CommitteePDF
81 FR 87578 - Meeting Announcement for the Physician-Focused Payment Model Technical Advisory Committee Required by the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015PDF
81 FR 87586 - Filing of Plats of Survey: CaliforniaPDF
81 FR 87584 - Endangered Species Recovery Permit ApplicationsPDF
81 FR 87561 - Agency Information Collection Activities; Submission for OMB Review; Comment RequestPDF
81 FR 87426 - Amendment to the Export Administration Regulations: Removal of Semiconductor Manufacturing International Corporation From the List of Validated End-Users in the People's Republic of ChinaPDF
81 FR 87424 - Amendment to the Export Administration Regulations: Removal of Special Iraq Reconstruction LicensePDF
81 FR 87529 - Endangered and Threatened Wildlife and Plants; 90-Day Findings on Three Petitions; CorrectionPDF
81 FR 87586 - Notice of Proposed Information Collection; Request for Comments for 1029-0049PDF
81 FR 87656 - Visual-Manual NHTSA Driver Distraction Guidelines for Portable and Aftermarket DevicesPDF
81 FR 87455 - Drawbridge Operation Regulation; York River, Yorktown, VAPDF
81 FR 87454 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (Albemarle and Chesapeake Canal), Chesapeake, VAPDF
81 FR 87594 - Notice of Intent To Grant an Exclusive LicensePDF
81 FR 87606 - In the Matter of Ajenifuja Investments, LLC, 5226 Klingle Street NW., Washington, DC 20016; Investment Advisers Act of 1940; Notice of Intention to Cancel Registration Pursuant to Section 203(H) of the Investment Advisers Act of 1940PDF
81 FR 87633 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Penny Pilot ProgramPDF
81 FR 87603 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend FINRA Rule 6191 To Modify the Web Site Data Publication Requirements Relating to the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 87641 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to Disaster RecoveryPDF
81 FR 87645 - Joint Industry Plan; Notice of Filing and Immediate Effectiveness of Amendment to the National Market System Plan for the Selection and Reservation of Securities Symbols To Add Investors Exchange, LLC as a Party TheretoPDF
81 FR 87607 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing of Proposed Rule Change To Adopt Rules for an Open-Outcry Trading FloorPDF
81 FR 87639 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Chapter VI, Section 5 To Extend the Penny Pilot ProgramPDF
81 FR 87555 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 87556 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 87588 - Certain UV Curable Coatings for Optical Fibers, Coated Optical Fibers, and Products Containing Same; Institution of InvestigationPDF
81 FR 87538 - Extension of Deadline for Nominations of Members To Serve on the Commerce Data Advisory Council (CDAC)PDF
81 FR 87470 - Suspension of Community EligibilityPDF
81 FR 87590 - Ferrovanadium From Korea; Scheduling of the Final Phase of an Antidumping Duty InvestigationPDF
81 FR 87467 - Suspension of Community EligibilityPDF
81 FR 87589 - Glycine From China; Scheduling of an Expedited Five-Year ReviewPDF
81 FR 87591 - Certain Air Mattress Systems, Components Thereof, and Methods of Using the Same; Notice of Request for Statements on the Public InterestPDF
81 FR 87587 - Polyester Staple Fiber From Korea and Taiwan; Scheduling of Expedited Five-Year ReviewsPDF
81 FR 87572 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Medical Device: Current Good Manufacturing Practice Quality System RegulationsPDF
81 FR 87592 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Supplemental Information on Water Quality Considerations (ATF F 5000.30)PDF
81 FR 87654 - Spartan Motors USA, Inc., Grant of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 87568 - Determination of Regulatory Review Period for Purposes of Patent Extension; BEXSEROPDF
81 FR 87593 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection Law Enforcement Congressional Badge of BraveryPDF
81 FR 87448 - National Security Education Program (NSEP) and NSEP Service AgreementPDF
81 FR 87409 - Changes to Reporting and Notification Requirements and Other Clarifying Changes for Imported Fruits, Vegetables, and Specialty CropsPDF
81 FR 87555 - Notice of Request for Comment on the Exposure Draft Technical Release: Conforming Amendments to Technical Releases for SFFAS 50, Establishing Opening Balances for General Property, Plant, and EquipmentPDF
81 FR 87653 - Fiscal Year 2016 Public Transportation on Indian Reservations Program Project SelectionsPDF
81 FR 87455 - Cost of Living Adjustment to Royalty Rates for Webcaster Statutory LicensePDF
81 FR 87530 - National Organic Program: Notice of Final Guidance on Classification of Materials and Materials for Organic Crop ProductionPDF
81 FR 87486 - Regulations Issued Under Authority of the Export Apple Act and Export Grapes and Plums; Changes to Export Reporting RequirementsPDF
81 FR 87649 - Mitigation and Investigation of Passenger Rail Human Factor Related Accidents and Operations in Terminals and Stations With Stub End TracksPDF
81 FR 87595 - Submission for OMB Review; Comment RequestPDF
81 FR 87502 - Tax Return Preparer Due Diligence Penalty Under Section 6695(g)PDF
81 FR 87444 - Tax Return Preparer Due Diligence Penalty Under Section 6695(g)PDF
81 FR 87430 - Instituting Smoke-Free Public HousingPDF
81 FR 87532 - Voting Rights Act Amendments of 2006, Determinations Under Section 203PDF
81 FR 87503 - Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour Ozone StandardPDF
81 FR 87501 - Probate Regulation UpdatesPDF
81 FR 87499 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 87496 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 87494 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 87419 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
81 FR 87417 - Airworthiness Directives; Dassault Aviation AirplanesPDF
81 FR 87427 - Amendment to the International Traffic in Arms Regulations: Corrections and ClarificationsPDF
81 FR 87510 - Hazardous Materials: Notification of the Pilot-in-Command and Response to Air Related Petitions for Rulemaking (RRR)PDF
81 FR 87734 - Recordkeeping for Timely Deposit Insurance DeterminationPDF
81 FR 87422 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
81 FR 87412 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 87770 - Offer Caps in Markets Operated by Regional Transmission Organizations and Independent System OperatorsPDF
81 FR 87556 - Federal Advisory Committee Meeting; Technological Advisory CouncilPDF
81 FR 87686 - Commercial Driver's License Drug and Alcohol ClearinghousePDF

Issue

81 233 Monday, December 5, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Reporting and Notification Requirements and Other Clarifying Changes for Imported Fruits, Vegetables, and Specialty Crops, 87409-87412 2016-29022 PROPOSED RULES Export Apple Act and Export Grapes and Plums Reporting Requirements, 87486-87493 2016-29017 NOTICES National Organic Programs: Final Guidance on Classification of Materials and Materials for Organic Crop Production, 87530-87531 2016-29018 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

See

Inspector General Office, Agriculture Department

AIRFORCE Air Force Department NOTICES Exclusive Patent Licenses: Protective Innovations, LLC, 87551 2016-29100 The University of Utah, 87551-87552 2016-29101 Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Supplemental Information on Water Quality Considerations, 87592-87593 2016-29027 Census Bureau Census Bureau NOTICES Determinations: Voting Rights Act Amendments of 2006, Determinations Under Section 203, 87532-87538 2016-28969 Children Children and Families Administration NOTICES Statement of Organization, Functions, and Delegations of Authority, 87563 2016-29112 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway (Albemarle and Chesapeake Canal), Chesapeake, VA, 87454-87455 2016-29049 York River, Yorktown, VA, 87455 2016-29050 Special Local Regulations: Southern California Annual Marine Events for the San Diego Captain of the Port Zone—San Diego Parade of Lights, 87454 2016-29110 NOTICES Vacancies: Area Maritime Security Advisory Committee, Eastern Great Lakes and Regional Sub-Committee, 87578-87579 2016-29107 Commerce Commerce Department See

Census Bureau

See

Economics and Statistics Administration

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Copyright Royalty Board Copyright Royalty Board RULES Cost of Living Adjustment to Royalty Rates for Webcaster Statutory License, 87455-87456 2016-29019 Defense Department Defense Department See

Air Force Department

RULES National Security Education Program and Service Agreement, 87448-87454 2016-29023
Economics Statistics Economics and Statistics Administration NOTICES Requests for Nominations: Members to Serve on the Commerce Data Advisory Council; Extension of Deadline, 87538-87539 2016-29037 Employee Benefits Employee Benefits Security Administration NOTICES Charter Renewals: Advisory Council on Employee Welfare and Pension Benefit Plans, 87593-87594 2016-29119 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Programs: Energy Conservation Standards for Residential Furnaces, 87493-87494 2016-29080 NOTICES Meetings: President's Council of Advisors on Science and Technology; Cancellation, 87552 2016-29070
Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Oxathiapiprolin, 87463-87467 2016-29109 Tau-Fluvalinate, 87456-87463 2016-29111 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alabama; Prong 4 Visibility for the 2008 8-hour Ozone Standard, 87503-87509 2016-28871 Pesticides; Removal of Obsolete Information, 87509-87510 2016-29113 NOTICES Peer Review of Biologically Based Dose-Response (BBDR) Model for Perchlorate in Drinking Water, 87553-87555 2016-29108 Federal Accounting Federal Accounting Standards Advisory Board NOTICES Exposure Drafts: Conforming Amendments to Technical Releases for Statement of Federal Financial Accounting Standards (SFFAS) 50, Establishing Opening Balances for General Property, Plant, and Equipment, 87555 2016-29021 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Bombardier, Inc. Airplanes, 87422-87424 2016-28340 Dassault Aviation Airplanes, 87417-87419 2016-28600 Fokker Services B.V. Airplanes, 87419-87422 2016-28601 The Boeing Co. Airplanes, 87412-87417 2016-28337 PROPOSED RULES Airworthiness Directives: Bombardier, Inc. Airplanes, 87494-87496 2016-28631 The Boeing Co. Airplanes, 87496-87499 2016-28664 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 87555-87559 2016-29039 2016-29040 Meetings: Technological Advisory Council, 87556 2016-28290 Federal Deposit Federal Deposit Insurance Corporation RULES Recordkeeping for Timely Deposit Insurance Determination, 87734-87767 2016-28396 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 87559-87560 2016-29267 Federal Emergency Federal Emergency Management Agency RULES Suspension of Community Eligibility, 87467-87472 2016-29033 2016-29036 Federal Energy Federal Energy Regulatory Commission RULES Offer Caps in Markets Operated by Regional Transmission Organizations and Independent System Operators, 87770-87800 2016-28320 NOTICES Combined Filings, 87553 2016-29098 Records Governing Off-the-Record Communications, 87552-87553 2016-29099 Federal Motor Federal Motor Carrier Safety Administration RULES Commercial Driver's License Drug and Alcohol Clearinghouse, 87686-87731 2016-27398 Federal Railroad Federal Railroad Administration NOTICES Safety Advisories: Mitigation and Investigation of Passenger Rail Human Factor Related Accidents and Operations in Terminals and Stations with Stub End Tracks, 87649-87653 2016-29013 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 87560-87561 2016-29092 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 87560 2016-29091 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 87560 2016-29094 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 87561-87562 2016-29060 Federal Transit Federal Transit Administration NOTICES Fiscal Year 2016 Public Transportation on Indian Reservations Program Project Selections, 87653-87654 2016-29020 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: 90-Day Findings on Three Petitions; Correction, 87529 2016-29055 NOTICES Endangered and Threatened Species: Permit Applications, 87584-87585 2016-29063 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Medical Device; Current Good Manufacturing Practice Quality System Regulations, 87572-87575 2016-29028 Providing Information About Pediatric Uses of Medical Devices, 87575-87576 2016-29105 Recommended Glossary and Educational Outreach to Support Use of Symbols on Labels and in Labeling of In Vitro Diagnostic Devices Intended for Professional Use, 87570-87572 2016-29104 Determinations of Regulatory Review Periods for Purposes of Patent Extensions: BEXSERO, 87568-87569 2016-29025 Guidance: Clinical Pharmacology Section of Labeling for Human Prescription Drug and Biological Products—Content and Format, 87563-87565 2016-29125 Extralabel Use of Medicated Feeds for Minor Species, 87566-87568 2016-29133 Health Document Submission Requirements for Tobacco Products, 87565-87566 2016-29117 Meetings: Pre-Market Evaluation of Abuse-Deterrent Properties of Opioid Drug, 87569-87570 2016-29097 Forest Forest Service NOTICES Meetings: Lyon-Mineral Resource Advisory Committee, 87531 2016-29067 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

NOTICES Meetings: Physician-Focused Payment Model Technical Advisory Committee, 87578 2016-29066
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Health Workforce Connector, 87577 2016-29079 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

Housing Housing and Urban Development Department RULES Instituting Smoke-Free Public Housing, 87430-87444 2016-28986 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affirmative Fair Housing Marketing Plan, 87581-87582 2016-29123 Family Report, Moving to Work Family Report, 87579-87580 2016-29120 FHA Adjustable Rate Mortgages, 87580-87581 2016-29121 Financial Statement of Corporate Applicant for Cooperative Housing Mortgage, 87583-87584 2016-29124 Uniform Physical Standards and Physical Inspection Requirements, 87582-87583 2016-29122 Indian Affairs Indian Affairs Bureau PROPOSED RULES Probate Regulation Updates, 87501-87502 2016-28751 NOTICES Indian Gaming: Tribal-State Class III Gaming Compacts Taking Effect in the State of California, 87585 2016-29076 Industry Industry and Security Bureau RULES Export Administration Regulations: Removal of Semiconductor Manufacturing International Corporation from the List of Validated End-Users in the People's Republic of China, 87426-87427 2016-29057 Removal of Special Iraq Reconstruction License, 87424-87426 2016-29056 Inspector General Agriculture Inspector General Office, Agriculture Department NOTICES Succession, Delegations of Authority, and Signature Authorities, No. IG-1313, Change 8, 87531-87532 2016-29096 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

Surface Mining Reclamation and Enforcement Office

Internal Revenue Internal Revenue Service RULES Tax Return Preparer Due Diligence Penalty under Section 6695(g), 87444-87448 2016-28993 PROPOSED RULES Tax Return Preparer Due Diligence Penalty under Section 6695(g), 87502-87503 2016-28995 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Prestressed Concrete Steel Rail Tie Wire from Mexico, 87543 2016-29073 Sugar from Mexico, 87541-87543 2016-29074 Suspension Agreement on Sugar from Mexico, 87539-87541 2016-29075 Determinations of Sales at Less than Fair Value: Certain Carbon and Alloy Steel Cut-to-Length Plate from Brazil, South Africa, and the Republic of Turkey, 87544-87548 2016-29071 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Ferrovanadium from Korea, 87590-87591 2016-29034 Polyester Staple Fiber from Korea and Taiwan, 87587-87588 2016-29030 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Air Mattress Systems, Components Thereof, and Methods of Using the Same, 87591-87592 2016-29031 Certain UV Curable Coatings for Optical Fibers, Coated Optical Fibers, and Products Containing Same, 87588-87589 2016-29038 Glycine from China, 87589-87590 2016-29032 Meetings; Sunshine Act, 87588 2016-29170 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Law Enforcement Congressional Badge of Bravery, 87593 2016-29024
Labor Department Labor Department See

Employee Benefits Security Administration

See

Workers Compensation Programs Office

Land Land Management Bureau NOTICES New Fee Sites: Public Land in Douglas County, Oregon, Roseburg District, Scaredman Recreation Site, 87585-87586 2016-29103 Plats of Surveys: California, 87586 2016-29065 Library Library of Congress See

Copyright Royalty Board

NASA National Aeronautics and Space Administration NOTICES Intent to Grant Exclusive Licenses, 87594-87595 2016-29048 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 87595 2016-29012 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Decisions of Inconsequential Noncompliance: Spartan Motors USA, Inc., 87654-87656 2016-29026 Visual-Manual Driver Distraction Guidelines for Portable and Aftermarket Devices, 87656-87683 2016-29051 National Oceanic National Oceanic and Atmospheric Administration NOTICES Endangered and Threatened Species: Take of Anadromous Fish, 87548-87550 2016-29029 2016-29068 Patent Patent and Trademark Office NOTICES Native American Tribal Insignia Database, 87550-87551 2016-29095 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for 10-Point Veteran Preference, 87599 2016-29127 Excepted Service, 87595-87603 2016-29129 2016-29130 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Hazardous Materials: Pilot-in-Command and Response to Air Related Petitions for Rulemaking, 87510-87529 2016-28403 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 87603, 87633, 87635-87639, 87644-87645 2016-29084 2016-29085 2016-29086 2016-29087 2016-29088 2016-29089 2016-29090 2016-29083 Joint Industry Plans: Addition of Investors Exchange, LLC, 87645-87646 2016-29043 Orders: Ajenifuja Investments, LLC, 87606-87607 2016-29047 Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange LLC, 87607-87628 2016-29042 Chicago Board Options Exchange, Inc., 87641-87644 2016-29044 Financial Industry Regulatory Authority, Inc., 87603-87606 2016-29045 NASDAQ BX, Inc., 87639-87641 2016-29041 NASDAQ PHLX LLC, 87633-87635 2016-29046 The Nasdaq Stock Market LLC, 87628-87633 2016-29116 Small Business Small Business Administration NOTICES Delegations of Authority, 87646-87647 2016-29093 State Department State Department RULES International Traffic in Arms Regulations; Corrections and Clarifications, 87427-87430 2016-28406 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 87586-87587 2016-29054 Surface Transportation Surface Transportation Board RULES United States Rail Service Issues-Performance Data Reporting, 87472-87485 2016-29131 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: United States Rail Service Issues; United States Rail Service Issues, 87647-87648 2016-29132 Tennessee Tennessee Valley Authority NOTICES Environmental Impact Statements; Availability, etc.: Cumberland Fossil Plant Coal Combustion Residual Management, 87648-87649 2016-29082 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Federal Transit Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Internal Revenue Service

Workers' Workers Compensation Programs Office NOTICES Meetings: Advisory Board on Toxic Substances and Worker Health Subcommittee on Evidentiary Requirements for Part B Lung Disease, 87594 2016-29114 Separate Parts In This Issue Part II Transportation Department, Federal Motor Carrier Safety Administration, 87686-87731 2016-27398 Part III Federal Deposit Insurance Corporation, 87734-87767 2016-28396 Part IV Energy Department, Federal Energy Regulatory Commission, 87770-87800 2016-28320 Reader Aids

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

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81 233 Monday, December 5, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 944, 980, and 999 [Doc. No. AMS-SC-16-0083; SC16-944/980/999-1 IR] Changes to Reporting and Notification Requirements and Other Clarifying Changes for Imported Fruits, Vegetables, and Specialty Crops AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Interim rule with request for comments.

SUMMARY:

This rule updates reporting and notification requirements associated with, and makes clarifying changes to, the fruit, vegetable, and specialty crop import regulations for certain commodities regulated under section 608(e) (hereinafter referred to as “8e”) of the Agricultural Marketing Agreement Act of 1937. The updates include shifting the exempt reporting requirement for imported tomatoes destined for noncommercial outlets for experimental purposes from the tomato import regulations to the safeguard procedures section of the vegetable import regulations. In addition, the pistachio import regulations will be updated by removing reference to a paper-based notification of entry process. Other administrative changes will be made to several of the 8e regulations to replace outdated information. These changes to the import regulations support the International Trade Data System (ITDS), a key White House economic initiative that will streamline and automate the filing of import and export information by the trade.

DATES:

Effective December 8, 2016; comments received by February 3, 2017 will be considered prior to issuance of a final rule.

ADDRESSES:

Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT:

Shannon Ramirez, Compliance and Enforcement Specialist, or Vincent Fusaro, Compliance and Enforcement Branch Chief, Specialty Crops Program, AMS, USDA; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” Section 8e provides that whenever certain commodities are regulated under Federal marketing orders, imports of those commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, and/or maturity requirements as those in effect for the domestically produced commodities. The Act also authorizes The Department of Agriculture (USDA) to perform inspections and other related functions (such as commodity sampling) on those imported commodities and to certify whether these requirements have been met.

Parts 944, 980, and 999 of title 7 of the Code of Federal Regulations (CFR) specify inspection, certification, and reporting requirements for imported commodities regulated under 8e. Additionally, these parts specify the imported commodities that may be exempt from grade, size, quality, and/or maturity requirements when imported for specific purposes (such as processing, donation to charitable organizations, or livestock feed) as well as the form importers must use to report to USDA and the U.S. Customs and Border Protection (CBP) imports of commodities exempt from 8e regulations.

USDA is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This rule makes a clarifying change to part 980, the vegetable import regulations, by moving the procedure for filing an exempt commodity form for tomatoes destined for noncommercial outlets for experimental purposes from § 980.212, the tomato import regulations, to § 980.501, the imported vegetable safeguard procedures section. This change removes reference to a form that does not exist for imports and makes the safeguard regulations consistent for all imported vegetables that are exempt from 8e regulations.

This rule also changes § 999.600, the pistachio import regulations, by removing reference to a paper-based notification of entry process, known in the industry as the “stamp and fax” process. This paper-based process is being replaced by an electronic filing requirement that was developed to comply with the International Trade Data System (ITDS) and is intended to be specified within AMS's Specialty Crops Inspection Division's regulations (form SC-357, Initial Inspection Request for Regulated Imported Commodities). Removing this outdated information streamlines the regulations and provides consistency among the specialty crop import regulations.

This rule also makes other minor administrative changes to §§ 944.401, 999.1, and 999.600 in the fruit and specialty crop import regulations. These changes, which include updating agency and program names and removing or updating other information that is duplicative or out of date, help ensure the import regulations contain accurate information and align with the ITDS objective of streamlining import processes for the trade.

Imported Tomato Regulation Changes

The import regulations in parts 944, 980, and 999 provide that individual lots of some imported commodities may be exempted from 8e requirements if those commodities are intended to be used in processing or in some other exempted outlet, such as a charitable organization or as livestock feed. To import exempt commodities into the United States, importers and receivers are required to certify to USDA and CBP as to the intended, authorized exempt use of those commodities. Certification is reported by both importers and receivers using a paper or electronic FV-6 form, Importer's Exempt Commodity Form.

On March 26, 1996, a final rule was published in the Federal Register (61 FR 13057) that changed, among other things, the safeguard section of the imported vegetable regulations (§ 980.501) by adding exemptions, subject to certain safeguard provisions, for tomatoes used for processing (canning and pickling), charity, and relief. At that time, the tomato import regulations already contained an exemption for tomatoes destined for noncommercial outlets for experimental purposes as well as an associated exemption reporting form (Certificate for Special Purpose Shipment) to be completed by the importer and the receiver of the tomatoes (§ 980.212(b)). However, the Certificate of Special Purpose form is not used to report the exempt use of these imported tomatoes; instead, an Importer's Exempt Commodity Form (form FV-6) is completed by importers and receivers, pursuant to the long-standing safeguard procedures that are in place for imported fruits, vegetables, and specialty crops. Therefore, a clarifying change is made to move the exempt-use reporting requirements for tomatoes destined for noncommercial outlets for experimental purposes from the tomato import regulations (§ 980.212) to the safeguard section for imported vegetables (§ 980.501). Incorporating the safeguard procedures for imported tomatoes into the vegetable safeguard procedures reflects current practice and standardizes the vegetable import regulations.

Imported Pistachio Regulation Changes

The regulations for imported pistachios provide for aflatoxin sampling procedures, based on lot size (§ 999.600(d)). These procedures currently require that an importer provide the inspection service office that will draw and prepare samples of the pistachio shipment with a copy of Customs entry documentation and other information related to the shipment; and in turn, the inspection service signs, stamps, and returns the entry documentation to the importer. This paper-based entry procedure is known in the industry as the “stamp and fax” process because the documentation is “stamped” by the inspection service and returned to the importer via “fax.”

In support of ITDS, § 999.600(d) is revised to remove the paper-based “stamp and fax” process. This process is being replaced by an electronic process that importers will use to notify AMS of an initial request for inspection (form SC-357, Initial Inspection Request for Regulated Imported Commodities). The initial request is intended to alert the inspection service and CBP that a lot of pistachios will be arriving that will require inspection at the port of entry or at another location (this is identical to the purpose of the old “stamp and fax” process). AMS's Specialty Crops Inspection Division intends to amend its inspection application regulations (7 CFR part 51) to provide for the electronic filing of the initial request for inspection, thereby meeting CBP's requirement that the regulations of agencies participating in ITDS be revised to provide for electronic filing of shipment entry data.

Administrative Changes

To further ensure that the fruit, vegetable, and specialty crop import regulations provide accurate information to the import trade, the USDA agency and program names are being updated where needed.

Also, a statement about the requirement that importers provide USDA inspectors with identifying information, including a Customs entry number, for each lot being inspected is simplified in the fruit and specialty crops import regulations in §§ 944.401(e) (olives) and 999.1(c)(1) (dates), respectively. These changes will make the olive and date import regulations consistent with the other fruit, vegetable, and specialty crop import regulations.

Finally, a paragraph titled “importation” in the date import regulations (§ 999.1(e)) is removed because it contains redundant and incomplete information about filing inspection or exemption documents with CBP. These requirements are more accurately explained elsewhere in the date regulations; specifically, § 999.1(b) provides the grade requirements that must be met by dates prior to importation, § 999.1(c) provides the inspection and certification requirements, and § 999.1(d) provides detailed exemption information and also references the safeguard section in the specialty crops import regulations (§ 999.500) that provides details on filing an electronic or paper FV-6 exemption form.

These changes will ensure the import regulations contain accurate and consistent information, which should benefit the import trade.

International Trade Data System (ITDS)

Changing the 8e import regulations to remove the paper-based notification of entry for imported pistachios supports the International Trade Data System (ITDS), a key White House economic initiative that has been under development for over ten years and is mandated for completion by December 31, 2016 (pursuant to Executive Order 13659, Streamlining the Export/Import Process for America's Businesses, signed by President Obama on February 19, 2014 (79 FR 10657)). Under ITDS, the import and export trade will file shipment data through an electronic “single window,” instead of completing multiple paper-based forms to report the same information to different government agencies. ITDS will greatly reduce the burden on America's import and export trade while still providing information necessary for the United States to ensure compliance with its laws.

By the end of 2016, the ITDS “single window” will be presented to the import and export trade through CBP's Automated Commercial Environment (ACE) platform. ACE will be the primary system through which the global trade community will file information about imports and exports so that admissibility into the U.S. may be determined and government agencies may monitor compliance.

Prior to the implementation of the ITDS “single window,” CBP is requiring that the 47 partnering government agencies that are participating in the ITDS project, including AMS, ensure that agency regulations provide for the electronic entry of import and/or export information.

AMS's Marketing Order and Agreement Division (MOAD) is currently developing the functionality of a new automated system called the Compliance and Enforcement Management System (CEMS) that will interface with CBP's ACE system in support of ITDS. CEMS will electronically link with the ACE system to create a “pipeline” through which data will be transmitted between MOAD and CBP. CEMS will contain several features, including an exempt imported commodities module and the ability to message CBP about whether a shipment may be released for importation into the United States.

AMS has determined that the changes in this rule meet CBP's requirements for ITDS by streamlining a notification process for imported pistachios; shifting an exempt-tomato reporting requirement to the proper safeguard section of the vegetable regulations, which was revised in 2015 to provide an electronic filing option; and by removing duplicate or revising outdated information. These changes will reduce the burden on America's import trade without compromising AMS's ability to ensure compliance with its import regulations.

Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened.

Small agricultural service firms, which includes importers and USDA-accredited laboratories who perform services required by import regulations, are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000 (13 CFR 121.201).

Based on 2015 reporting, USDA estimates that there were two importers and two receivers of tomatoes that were exempt from 8e requirements. Although USDA does not have access to data about the business sizes of these importers and receivers, it is likely that the majority may be classified as large entities.

This action moves the requirements for reporting imported tomatoes destined for noncommercial outlets for experimental purposes, which are exempt from 8e regulations, from the tomato import regulations to the safeguard section of the vegetable import regulations. This change to the regulations does not revise the procedures currently used by importers and receivers of exempt tomatoes; instead, it shifts the outdated requirements currently listed under § 980.212 to the more appropriate safeguard section in § 980.501. Most importers and receivers already file FV-6 forms electronically using AMS's Marketing Order Online System (MOLS), while some paper forms are still submitted. In 2015, AMS estimates it received five electronic FV-6 forms and no paper FV-6 forms for approximately 14,900 pounds of exempt tomatoes.

As part of the full implementation of ITDS, importers and receivers will report exempt shipments through CBP's ACE system and AMS's CEMS system, which, as noted earlier, is currently under development and will eventually replace MOLS. An affirmation of interim rule as final rule was published in the Federal Register on June 25, 2015 (80 FR 36465) that provided for the electronic submission of FV-6 forms, a practice that has existed since MOLS was implemented in 2008 but was not reflected in the regulations. This action imposes no additional burden on importers and receivers of exempt tomatoes.

Regarding alternatives to this action, AMS determined that these changes to the regulations were needed to comply with the ITDS mandate. Moving an outdated, paper-based exempt form-filing requirement from the import tomato regulations to the safeguard section of the vegetable import regulations standardizes the regulations and properly provides for the current requirement of filing a paper or electronic form FV-6, which will benefit importers and receivers who import these exempt tomatoes. In addition, changing the pistachio regulations by removing the paper-based “stamp and fax” requirement streamlines the regulations and reduces the burden on the trade. The other administrative changes made in this action will also provide the import trade with accurate information.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements for the form FV-6 (for commodities exempt from 8e requirements) have been previously approved by OMB and assigned OMB No. 0581-0167 (Specific Commodities Imported into United States Exempt From Import Regulations). No changes in the requirements for the FV-6 form as a result of this action are necessary. The shift of the requirements for exempt-use filings from the tomato import regulations to the safeguard section for imported vegetables is administrative in nature and does not change the practice that has existed for many years. Should any changes to form FV-6 become necessary in the future, they would be submitted to OMB for approval.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, importers are already familiar with the long-existing process and requirement to file FV-6 forms for commodities exempt from 8e regulations. Also, the import trade is fully aware of the ITDS initiative, which is designed to streamline and automate the filing of import shipment data.

Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

This rule invites comments on updates to reporting and notification requirements, as well as other clarifying and administrative changes, to the regulations for fruit, vegetable, and specialty crop import regulations. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule clarifies and standardizes exempt commodity form-filing requirements and does not impose any new requirements, which should benefit importers and receivers; (2) this rule eliminates a paper-based notification of entry requirement that is no longer going to be used by importers of pistachios; (3) the import industry is well aware of the ITDS initiative and its goal to automate paper-based processes; (4) CBP is requiring timely update of import regulations to meet the ITDS electronic data submission requirement; and (5) this rule provides a 60-day comment period, and any comments received will be considered prior to finalization of this rule.

List of Subjects 7 CFR Part 944

Avocados, Food grades and standards, Grapefruit, Grapes, Imports, Kiwifruit, Olives, Oranges.

7 CFR Part 980

Food grades and standards, Imports, Marketing agreements, Onions, Potatoes, Tomatoes.

7 CFR Part 999

Dates, Filberts, Food grades and standards, Imports, Nuts, Pistachios, Prunes, Raisins, Reporting and recordkeeping requirements, Walnuts.

For the reasons set forth in the preamble, 7 CFR parts 944, 980, and 999 are amended as follows:

1. The authority citation for 7 CFR parts 944, 980, and 999 continues to read as follows: Authority:

7 U.S.C. 601-674.

PART 944—FRUITS; IMPORT REGULATIONS 2. Revise § 944.401 paragraph (e) to read as follows:
§ 944.401 Olive Regulation 1.

(e) Inspection shall be performed by USDA inspectors in accordance with said regulations governing the inspection and certification of processed fruits and vegetables and related products (part 52 of this title). The cost of each such inspection and related certification shall be borne by the applicant therefore. Applicants shall provide USDA inspectors with the entry number and such other identifying information for each lot as the inspector may request.

3. Amend § 980.212 as follows: a. Revise paragraph (b) introductory text; and b. Remove and reserve paragraphs (b)(2) and (3).
§ 980.212 Import regulations; tomatoes.

(b) Grade, size, quality and maturity requirements. On and after the effective date hereof no person may import fresh tomatoes except pear shaped, cherry, hydroponic and greenhouse tomatoes as defined herein, unless they are inspected and meet the following requirements:

4. In § 980.501, revise the first sentence of paragraph (a) introductory text and paragraph (a)(4), and add paragraph (a)(5) to read as follows:
§ 980.501 Safeguard procedures for potatoes, onions, and tomatoes exempt from grade, size, quality and maturity requirements.

(a) Each person who imports or receives any of the commodities listed in paragraphs (a)(1) through (5) of this section shall file (electronically or paper) an “Importer's Exempt Commodity Form” (FV-6) with the Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA. * * *

(4) Pearl onions; or

(5) Tomatoes to be used in noncommercial outlets for experimental purposes.

PART 999—SPECIALTY CROPS; IMPORT REGULATIONS 5. Amend § 999.1 as follows: a. Revise paragraph (c)(1); b. Remove paragraph (e); and c. Redesignate paragraphs (f) through (i) as (e) through (h), respectively.
§ 999.1 Regulations governing the importation of dates.

(c) Inspection and certification requirements—(1) Inspection. Inspection shall be performed by USDA inspectors in accordance with the Regulations Governing the Inspection and Certification of Processed Fruits and Vegetables and Related Products (part 52 of this title). The cost of each such inspection and related certification shall be borne by the applicant. Applicants shall provide USDA inspectors with the entry number and such other identifying information for each lot as the inspector may request.

6. Amend § 999.600 as follows: a. Remove paragraph (d)(1); and b. Redesignate paragraphs (d)(2) and (3) as (d)(1) and (2), respectively, and revise the newly designated paragraph (d)(1).
§ 999.600 Regulation governing the importation of pistachios.

(d) Sampling. (1) All sampling for aflatoxin testing shall be performed by USDA-authorized inspectors in accordance with USDA rules and regulations governing the inspection and certification of fresh fruits, vegetables, and other products (7 CFR part 51). The cost of each such sampling and related certification shall be borne by the importer. Whenever pistachios are offered for sampling and testing, the importer shall furnish any labor and pay any costs incurred for storing, moving, and opening containers as may be necessary for proper sampling and testing. The importer shall furnish the USDA inspector with the customs entry number and such other identifying information for each lot as he or she may request. Importers may make arrangements for required sampling by contacting the Inspection Service office closest to where the pistachios will be made available for sampling. For questions regarding sampling, a list of Federal or Federal-State Inspection Program offices, or for further assistance, importers may contact: Specialty Crops Inspection Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Room 1536-S, Washington, DC 20250; Telephone: (202) 720-5870; Fax: (202) 720-0393.

Dated: November 29, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-29022 Filed 12-2-16; 8:45 am] BILLING CODE P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2013-0215; Directorate Identifier 2012-NM-132-AD; Amendment 39-18665; AD 2016-19-16] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 707-300, 707-300B, and 707-300C series airplanes; and certain Model 727C, 727-100C, and 727-200F series airplanes. This AD was prompted by a report indicating that a cam latch on the main cargo door (MCD) broke during flight. This AD requires various inspections and related investigative and corrective actions, if necessary. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective January 9, 2017.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of January 9, 2017.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0215.

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-2013-0215; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Patrick Farina, Aerospace Engineer, Cabin Safety Branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5344; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain The Boeing Company Model 707-300, 707-300B, and 707-300C series airplanes; and certain Model 727C, 727-100C, and 727-200F series airplanes. The NPRM published in the Federal Register on March 28, 2013 (78 FR 18922) (“the NPRM”). The NPRM was prompted by a report indicating that a cam latch on the MCD broke during flight. The NPRM proposed to require performing repetitive inspections of the MCD cam latches; replacing cam latches, certain bolts, and door hinge fittings; performing related investigative and corrective actions, if necessary; and rigging the MCD. We are issuing this AD to detect and correct discrepancies of the cam latches, latch pins, and latch pin cross bolts, which could reduce the structural integrity of the MCD, and result in potential loss of the cargo door and rapid decompression of the airplane.

Actions Since the NPRM Was Issued

Since we issued the NPRM, we have reviewed Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes). (We referred to Boeing 707 Alert Service Bulletin A3536, dated February 6, 2012; and Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012; as the appropriate sources of service information for accomplishing the actions specified in the NPRM.)

Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015; clarify the inspection conditions and the corrective actions for certain conditions. Certain inspections of the cam latches and latch pins were changed from detailed inspections to general visual inspections. Also, a detailed inspection of mating parts and immediately adjacent cam latches and latch pins for any cracks or any gouges in critical areas was added to certain corrective actions specified in the service information.

Also, the corrective actions for latch pin extensions that are between 0.84 and 0.89 inch or between 0.91 and 0.94 inch were changed. Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015; specify replacement of any discrepant latch pin and a detailed inspection of the mating cam latch for any cracks or gouges in lieu of the repetitive detailed inspections described in Boeing 707 Alert Service Bulletin A3536, dated February 6, 2012; and Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012.

Explanation of Certain Changes to This AD

In light of the issuance of the revised service information discussed previously, we have revised paragraphs (c), (g), and (h) of this AD to refer to Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015. We have also added new paragraph (l) of this AD to give credit for doing actions before the effective date of this AD using Boeing 707 Alert Service Bulletin A3536, dated February 6, 2012; and Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012. In addition, we have removed the Optional Terminating Action, which was paragraph (m) in the proposed AD, and moved that information into paragraph (g)(2) of this AD to align with the revised service information. We have redesignated subsequent paragraphs accordingly.

In addition, since certain inspections and conditions were revised in Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015; we have revised the description of the actions required by this AD to correspond with the terminology used in Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015. As a result, certain paragraphs in the proposed AD have been rearranged, and the corresponding paragraph identifiers have been redesignated in this AD, as listed in the following table:

Revised Paragraph Identifiers Action in the NPRM Corresponding
  • requirement in this AD
  • paragraph (g) paragraph (g)(1). paragraph (h) paragraph (g)(2). paragraph (i) paragraph (h). paragraph (j) paragraph (h). paragraph (k) paragraph (k). paragraph (l) paragraph (i). paragraph (m) paragraph (g)(2). paragraph (n) paragraph (j).

    We have also revised the Costs of Compliance section in this final rule to reflect the number of work-hours specified in Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015. We have also included the costs for the repetitive inspections required before the MCD rigging check as well as replacement of the alloy cross bolts; these costs were inadvertently omitted from the NPRM. In addition, we have included the costs for the concurrent actions in Boeing 707/720 Service Bulletin 3477, Revision 2, dated April 15, 1993; and Boeing Service Bulletin 727-52-0142, Revision 2, dated April 15, 1993.

    Comments

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

    FedEx Express had no objection to the NPRM.

    Request for Clarification of Requirements

    Boeing stated that it was difficult to align the requirements proposed in paragraphs (g), (h), (i), (j) and (l) of the proposed AD with the actions described in Boeing 707 Alert Service Bulletin A3536, dated February 6, 2012; and Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012. Boeing commented that it is not clear which requirements in the proposed AD go with which section of table 1 and table 2 in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012. Boeing expressed concern that the proposed AD does not include all of the items in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012. Boeing suggested that the proposed AD be rewritten so operators are not confused with unclear compliance requirements, which might cause situations of non-compliance.

    Boeing also requested that paragraphs (h)(1), (h)(2), (h)(3)(i), and (h)(3)(ii) of the proposed AD be rewritten to improve clarity because words were omitted that might lead to confusion or misinterpretation of the requirements in the proposed AD.

    We agree that the description of the parts to be inspected and the required tasks should be consistent throughout this final rule and should match what is described in the Boeing service information. With the exception of paragraph (l)(2) of this AD, we are requiring only actions that are described in Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015. We have revised paragraphs (g), (h), (i), and (j) of this AD accordingly.

    For clarity we have moved the “Concurrent Actions” paragraph of the proposed AD (paragraph (l) of the proposed AD) before the “Exceptions to Service Information Specifications” paragraph (paragraph (k) of the proposed AD). In this AD, the “Concurrent Actions” paragraph is redesignated as paragraph (i) of this AD.

    Request To Revise Intervals for Repetitive Inspections

    The United States Air Force Joint STARS (Joint STARS) program stated that its concern is that the NPRM addresses only airplanes that are frequently used to haul cargo. For operators that do not haul cargo and typically only open the MCD for C-check inspections, the general visual inspections required every 330 flight cycles or 150 days is excessive. This commenter stated that these repetitive inspections do not fit into the current Joint STARS maintenance program and would result in airplane downtime and additional cost. This commenter noted that detailed inspections every 3,000 flight cycles or 24 months, and high frequency eddy current (HFEC) inspections every 6,000 flight cycles or 48 months, would fit into its current maintenance schedule and not cause a significant impact.

    We agree that the required intervals for repetitive inspections may not be appropriate for some operators because they infrequently use the cargo door. However, we disagree with revising the intervals for the repetitive inspections required by this AD. We need to evaluate the requests for different inspection intervals on a case-by-case basis, based on the operator and its use of the MCD. Operators may request a change in the intervals for the repetitive inspections by following the procedures in paragraph (m) of this AD and requesting approval of an alternative method of compliance.

    We also note that the FAA has limited oversight of public aircraft operations (PAO). The government entity conducting the PAO is responsible for oversight of the operations, including aircraft airworthiness.

    Conclusion

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

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

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

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

    Related Service Information Under1 CFR Part 51

    We reviewed Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015; and Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015. This service information describes procedures for doing a general visual inspection for broken or missing cam latches, latch pins, and latch pin cross bolts; torqueing the cross bolts in the latch pins; measuring the extension of the latch pins; replacing all alloy steel cross bolts through the latch pins with CRES cross bolts; doing a general visual inspection of all cam latches for lip deformation; doing a HFEC or magnetic particle inspection of cam latch 1 and cam latch 2 for cracks and replacing all cracked or broken parts; checking the rig of the MCD and re-rigging as applicable; and doing related investigative and corrective actions. This service information also describes procedures for doing repetitive inspections for certain conditions specified in the service information, which terminate after the MCD rigging is done as specified in this service information. This service information also describes procedures for doing MCD post-rigging inspections and corrective actions. These service bulletins are distinct because they apply to different airplane models.

    We also reviewed Boeing 707/720 Service Bulletin 3477, Revision 2, dated April 15, 1993; and Boeing Service Bulletin 727-52-0142, Revision 2, dated April 15, 1993. This service information describes procedures for doing general a general visual inspection of the hinge fittings and the cam latches on the MCD, and related investigative and corrective actions. These service bulletins are distinct because they apply to different airplane models.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 18 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection/torque/measurement 4 work-hours × $85 per hour = $340 $0 $340 $6,120. Repetitive inspections pre-MCD rigging Up to 3 work-hours × $85 per hour = $255 per inspection cycle $0 Up to $255 per inspection cycle Up to $4,590 per inspection cycle. MCD rigging/adjustment 48 work-hours × $85 per hour = $4,080 Up to $8,821 1 Up to $12,901 Up to $232,218. Replacement of alloy cross bolts 1 work-hour × $85 per hour = $85 $0 $85 $1,530. Repetitive inspections post-MCD rigging 3 work-hours × $85 = $255 per inspection cycle $0 $255 per inspection cycle $4,590 per inspection cycle. Concurrent 2 inspection 8 work-hours × $85 per hour = $680 $0 $680 $12,240. 1 Special tooling is available from the airplane manufacturer; $8,821 is the purchase price and $180 per day is the rental rate. 2 The concurrent inspection is required by AD 91-22-04, Amendment 39-8064 (56 FR 55223, October 25, 1991).

    We estimate the following costs to do any necessary related investigative actions and certain replacements that will be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these actions:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Related investigative actions Up to 3 work-hours × $85 per hour = $255 $0 Up to $255. Replacement of broken/missing parts 1 work-hour × $85 per hour = $85 per latch/pin $0 $85 per latch/pin. Concurrent replacement 1 26 work-hours × $85 = $2,210 $15,324 $17,534. 1 The concurrent replacement of parts is required by AD 91-22-04, Amendment 39-8064 (56 FR 55223, October 25, 1991).
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-19-16 The Boeing Company: Amendment 39-18665; Docket No. FAA-2013-0215; Directorate Identifier 2012-NM-132-AD. (a) Effective Date

    This AD is effective January 9, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    The Boeing Company airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) Model 707-300, 707-300B, and 707-300C series airplanes, as identified in Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015.

    (2) Model 727C, 727-100C, and 727-200F series airplanes, as identified in Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Unsafe Condition

    This AD was prompted by a report that a cam latch on the main cargo door (MCD) broke during flight. We are issuing this AD to detect and correct discrepancies of the cam latches, latch pins, and latch pin cross bolts. Such discrepancies could reduce the structural integrity of the MCD, and result in potential loss of the cargo door and rapid decompression of the airplane.

    (f) Compliance

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

    (g) MCD Pre-Rig Inspections, Bolt Torque, Latch Pin Measurement, Cross Bolt Replacement, and Related Investigative and Corrective Actions

    (1) Except as provided by paragraph (k)(l) of this AD, at the applicable times specified in table 1 of paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes): Do the actions specified in paragraphs (g)(1)(i) through (g)(1)(iv) of this AD in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes).

    (i) A general visual inspection of the MCD for broken or missing cam latches, latch pins, and latch pin cross bolts.

    (ii) Torque the cross bolts in the latch pins.

    (iii) Measure the extension of the latch pins.

    (iv) Perform a general visual inspection of all cam latches for lip deformation.

    (2) Except as required by paragraph (k)(2) of this AD, after accomplishing the actions specified in paragraphs (g)(1)(i) through (g)(1)(iv) of this AD: Do all applicable related investigative and corrective actions, replace all alloy steel cross bolts through the latch pins with corrosion resistant steel (CRES) cross bolts, repeat the applicable inspections, and do the check of the MCD rig and the latch mechanism adjustment test, at the applicable times and intervals specified in table 1 of paragraph 1.E., “Compliance,” and in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes). Accomplishment of the check of the MCD rig terminates the repetitive inspections required by this paragraph.

    (h) MCD Post-Rigging Inspections and Corrective Actions

    (1) Except as required by paragraph (k)(2) of this AD: At the applicable times specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes): Do general visual inspections for any broken or missing cam latches, latch pins, and latch pin cross bolts; a detailed inspection of the cam latches and latch pins for any cracks, or any gouges in critical areas; and an HFEC or magnetic particle inspection of cam latch 1 and cam latch 2 for cracks in critical areas; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes). Do all applicable corrective actions before further flight.

    (2) Repeat the inspections required by paragraph (h)(1) of this AD at the applicable times specified in table 2 of paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes).

    (i) Concurrent Actions

    (1) For airplanes identified in Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015: Before or concurrently with accomplishment of the general visual inspections specified in paragraphs (g)(1)(i) and (g)(1)(iv) of this AD, do a general visual inspection of the hinge fittings and the cam latches on the MCD, and perform related investigative and corrective actions as applicable, in accordance with the Accomplishment Instructions of Boeing 707/720 Service Bulletin 3477, Revision 2, dated April 15, 1993.

    (2) For airplanes identified in Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015: Before or concurrently with accomplishment of the general visual inspections specified in paragraphs (g)(1)(i) and (g)(1)(iv) of this AD, do a general visual inspection of the hinge fittings and the cam latches on the MCD, and perform related investigative and corrective actions as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 727-52-0142, Revision 2, dated April 15, 1993.

    (j) Parts Installation Prohibition

    As of the effective date of this AD, no person may install an alloy steel bolt as a cross bolt through any latch pin fitting assembly in the lower sill of the MCD on any airplane.

    (k) Exceptions to Service Information Specifications

    The following exceptions apply to this AD.

    (1) Where Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes); specifies a compliance time relative to the issue date of that service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes); specifies to contact Boeing for appropriate action: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015 (for Model 727C, 727-100C, and 727-200F series airplanes); repair using a method approved in accordance with the procedures specified in paragraph (m) of this AD.

    (l) Credit for Previous Actions

    This paragraph provides credit for the corresponding actions required by paragraphs (g) and (h) of this AD, if those actions were done before the effective date of this AD using Boeing 707 Alert Service Bulletin A3536, dated February 6, 2012 (for Model 707-300, 707-300B, and 707-300C series airplanes); or Boeing Alert Service Bulletin 727-52A0150, dated January 30, 2012 (for Model 727C, 727-100C, and 727-200F series airplanes).

    (m) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles 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 (n)(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, Los Angeles 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.

    (n) Related Information

    (1) For more information about this AD, contact Patrick Farina, Aerospace Engineer, Cabin Safety Branch, ANM-150L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5344; fax: 562-627-5210; email: [email protected]

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

    (o) Material Incorporated by Reference

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

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

    (i) Boeing 707 Alert Service Bulletin A3536, Revision 1, dated September 16, 2015.

    (ii) Boeing Alert Service Bulletin 727-52A0150, Revision 1, dated November 5, 2015.

    (iii) Boeing 707/720 Service Bulletin 3477, Revision 2, dated April 15, 1993.

    (iv) Boeing Service Bulletin 727-52-0142, Revision 2, dated April 15, 1993.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on September 14, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28337 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5466; Directorate Identifier 2015-NM-183-AD; Amendment 39-18724; AD 2016-24-07] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 7X airplanes. This AD was prompted by investigation results that determined that a certain thickness of the fuel tank panels is insufficient to meet the certification requirements. This AD requires inspecting the thickness of the fuel tank panels, and repair if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective January 9, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 9, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.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-2016-5466.

    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-2016-5466; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the Federal Register on April 13, 2016 (81 FR 21770) (“the NPRM”).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0216, dated October 28, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X airplanes. The MCAI states:

    Several rear fuselage tanks of the Falcon 7X were assembled on the production line with a lateral panel, which had been excessively chemically-milled in some areas. Investigation results determined that the remaining thickness is insufficient to meet the certification requirements. Dassault Aviation identified the individual aeroplanes that are potentially affected by this production deficiency. Due to this reduced thickness, the risk of damaging and puncturing a fuel tank wall panel as a result of a high energy lightning strike is increased.

    This condition, if not detected and corrected, could lead to loss of electrical power and/or other essential functions, possibly resulting in reduced control of the aeroplane or ignition of a fuel tank.

    To address this potential unsafe condition, Dassault Aviation published Service Bulletin (SB) 7X-245 to provide inspection and repair instructions.

    For the reasons described above, this [EASA] AD requires a one-time inspection of the fuel tank wall panels and, depending on findings, accomplishment of a repair.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5466.

    Comments

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

    Conclusion

    We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Dassault Service Bulletin 7X-245, dated June 8, 2015. The service information describes procedures for measuring fuel tank panel thickness, and repair if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 6 airplanes of U.S. registry. We also estimate that it will take about 8 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,080, or $680 per product.

    In addition, we estimate that any necessary follow-on actions will take about 20 work-hours and require parts costing $2,244, for a cost of $3,944 per product. We have no way of determining the number of aircraft that might need this action.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-24-07 Dassault Aviation: Amendment 39-18724; Docket No. FAA-2016-5466; Directorate Identifier 2015-NM-183-AD. (a) Effective Date

    This AD is effective January 9, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, serial numbers (S/Ns) 17 through 21 inclusive, S/Ns 86 through 90 inclusive, S/Ns 115 through 119 inclusive, S/Ns 129 through 138 inclusive, and S/N 155.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Reason

    This AD was prompted by investigation results that determined that a certain thickness of the fuel tank panels is insufficient to meet the certification requirements. We are issuing this AD to detect and correct improper thickness of the fuel tank panels. Improper thickness increases the risk of damaging and puncturing a fuel tank wall panel as a result of a high energy lightning strike, which could lead to loss of electrical power and/or other essential functions, possibly resulting in reduced control of the airplane or ignition of a fuel tank.

    (f) Compliance

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

    (g) Inspection and Repair

    Within 99 months or 4,100 flight cycles, whichever occurs first since the date of first delivery of the airplane, inspect for improper thickness of the fuel tank panels, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-245, dated June 8, 2015. If improper thickness is found during this inspection, before further flight, repair the fuel tank panels, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-245, dated June 8, 2015.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (i) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0216, dated October 28, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5466.

    (j) Material Incorporated by Reference

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

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

    (i) Dassault Service Bulletin 7X-245, dated June 8, 2015.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com.

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

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

    Issued in Renton, Washington, on November 17, 2016. Phil Forde, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28600 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7271; Directorate Identifier 2015-NM-099-AD; Amendment 39-18722; AD 2016-24-05] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. This AD was prompted by heavy corrosion found on the wing rear spar lower girder. This AD requires inspections of the affected areas, modification of the wing trailing edge lower skin panels, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective January 9, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of January 9, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact, Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.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-2016-7271.

    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-2016-7271; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM 116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The NPRM published in the Federal Register on June 23, 2016 (81 FR 40823) (“the NPRM”).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0113, dated June 22, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The MCAI states:

    On an F28 Mark 0070 aeroplane, heavy corrosion was found on the wing rear spar lower girder. At small spots the effective thickness of the vertical flange of the lower girder was almost lost. Subsequently, a number of inspections were accomplished on other aeroplanes to provide additional information on possible corrosion in this area. Because the rear spar lower girder between Wing Stations (WSTA) 9270 and 11794 is hidden from view by the inboard and outboard aileron balancing plates, it is possible that corrosion in this area remains undetected during the zonal inspections in zone 536 and 636 (MRB [Maintenance Review Board] tasks 062505-00-01 and 062605-00-01).The heavy corrosion was not only found in the area between WSTA 9270 and 11794, but also in the area where the rear spar lower girder is directly visible.

    This condition, if not detected and corrected, reduces the load carrying capability of the wing, possibly resulting in structural failure and loss of the aeroplane.

    To address this potential unsafe condition, Fokker Services issued Service Bulletin (SB) SBF100-57-049 to provide instructions to detect and remove corrosion and to modify the wing trailing edge lower skin panels into access panels. SBF100-57-050 was issued to provide repair instructions.

    For the reasons described above, this [EASA] AD requires inspections of the affected areas and, depending on findings, accomplishment of applicable corrective action(s) [including removing corrosion, repair, and restoring protective finish]. This [EASA] AD also requires modification of the wing trailing edge lower skin panels into access panels [This modification is to provide ease of access for later inspection and repairs in the affected areas.], and reporting of the results of the inspections to Fokker Services.

    More information on this subject can be found in Fokker Services All Operators Message AOF100.197.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7271.

    Comments

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

    Conclusion

    We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, which describes procedures for an inspection for corrosion of certain wing rear spar lower girder areas, modification of the wing trailing edge lower skin panels, and corrective actions if necessary. We also reviewed Fokker Service Bulletin SBF100-57-050, Revision 1, dated May 19, 2015, which describes procedures for repair of the wing spar. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 8 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Wing inspection and modification 35 work-hours × $85 per hour = $2,975 per inspection cycle $1,680 $4,655 per inspection cycle $37,240 per inspection cycle. Reporting 1 work hour × $85 per hour = $85 0 85 680.

    We estimate the following costs to do any necessary corrective actions that will be required based on the results of the required inspection. We have no way of determining the number of airplanes that might need these corrective actions:

    On-Condition Costs Action Labor cost Parts cost Cost per product Corrective Actions Up to 372 work hours × $85 per hour = $31,620 Up to $7,600 Up to $39,220. Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-24-05 Fokker Services B.V.: Amendment 39-18722; Docket No. FAA-2016-7271; Directorate Identifier 2015-NM-099-AD. (a) Effective Date

    This AD is effective January 9, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by heavy corrosion found on the wing rear spar lower girder. We are issuing this AD to detect and correct corrosion of the wing rear spar lower girder. This condition could reduce the load-carrying capability of the wing, possibly resulting in structural failure and loss of the airplane.

    (f) Compliance

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

    (g) Inspection of the Wing Rear Spar Lower Girder From Wing Stations (WSTA) 9270 to 11794

    Within 1,000 flight cycles or 12 months, whichever occurs first after the effective date of this AD, accomplish a one-time detailed visual inspection for corrosion of the wing rear spar lower girder area from WSTA 9270 to 11794, in accordance with Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (h) Modification of Wing Trailing Edge

    Within 1,000 flight cycles or 12 months, whichever occurs first after the effective date of this AD, modify the wing trailing edge lower skin panels into access panels, in accordance with Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (i) Inspection of the Wing Rear Spar Lower Girder From WSTA 2635 to 8700 and WSTA 11794 to 12975

    Within 2,000 flight cycles or 24 months, whichever occurs first after the effective date of this AD, accomplish a one-time detailed visual inspection for corrosion of the wing rear spar lower girder area from WSTA 2635 to 8700 and WSTA 11794 to 12975, in accordance with Part 2 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (j) Corrective Actions for the Inspections of Wing Rear Spar Lower Girder

    (1) If during any inspection required by paragraph (g) or (i) of this AD, as applicable, corrosion is found, before further flight, remove the corrosion and determine the remaining thickness at the damaged spots, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015. If the remaining thickness at the damaged spots, as determined by this paragraph, is not within the tolerances specified in Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, except as required by paragraph (k)(1) of this AD: Before further flight, accomplish the applicable corrective actions as defined in paragraph (j)(1)(i) or (j)(1)(ii) of this AD, as applicable.

    (i) For corrosion damage found outboard of WSTA 8200 only: Repair, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-050, Revision 1, dated May 19, 2015.

    (ii) Repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Fokker Services B.V.'s EASA Design Organization Approval (DOA).

    (2) If during any inspection required by paragraph (g) or (i) of this AD, only damage to the surface protection is found, or if the remaining thickness at the damaged spots, as determined by paragraph (j)(1) of this AD, is within the tolerances specified in Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, except as required by paragraph (k)(1) of this AD: Before further flight, restore the surface protection, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, except as required by paragraph (k)(2) of this AD.

    (k) Exceptions to Service Information Specifications

    (1) Where Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, specifies the acceptability of smaller thickness or customized repairs: Before further flight, obtain acceptable tolerances, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Fokker Services B.V.'s EASA DOA.

    (2) Where Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, specifies contacting Fokker for a customized repair: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Fokker Services B.V.'s EASA DOA.

    (l) Reporting Requirements

    Submit a report of the findings, both positive and negative, of the inspections required by paragraphs (g) and (i) of this AD to Fokker Services, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, at the time specified in paragraph (l)(1) or (l)(2) of this AD.

    (1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.

    (2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Fokker Service B.V.'s EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (n) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0113, dated June 22, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7271.

    (o) Material Incorporated by Reference

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

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

    (i) Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (ii) Fokker Service Bulletin SBF100-57-050, Revision 1, dated May 19, 2015.

    (3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com.

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

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

    Issued in Renton, Washington, on November 17, 2016. Phil Forde, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28601 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7418; Directorate Identifier 2015-NM-163-AD; Amendment 39-18675; AD 2016-20-09] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2A12 (CL-601 Variant), and CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. This AD was prompted by a report that a potential chafing condition exists between the negative-G fuel feed drain line of the auxiliary power unit (APU) and its surrounding structure and components. This AD requires, for certain airplanes, a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, and corrective actions if necessary. For certain other airplanes, this AD requires replacement of the APU negative-G fuel feed tube assembly and the drain line. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is January 9, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of January 9, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7418.

    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-2016-7418; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Norman Perenson, Aerospace Engineer, Propulsion and Services Branch, ANE-173, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7337; fax: 516-794-5531.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2A12 (CL-601 Variant), and CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The NPRM published in the Federal Register on June 28, 2016 (81 FR 41889) (“the NPRM”). The NPRM was prompted by a report that a potential chafing condition exists between the negative-G fuel feed drain line of the APU and its surrounding structure and components. The NPRM proposed to require, for certain airplanes, a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, and corrective actions if necessary. For certain other airplanes, the NPRM proposed to require replacement of the APU negative-G fuel feed tube assembly and the drain line. We are issuing this AD to prevent a chafing condition in the negative-G fuel feed drain line, which can result in fuel leaking from the drain line. This condition, in combination with a nearby hot surface or other potential ignition source, could result in an uncontrolled fire in the aft equipment bay.

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2015-26, dated August 31, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2A12 (CL-601 Variant) and CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The MCAI states:

    It was reported that a potential chaffing condition exist between the Auxiliary Power Unit (APU) negative-G fuel feed drain line and its surrounding structure and components. Leakage of the negative-G fuel feed drain line is a dormant failure, however, in combination with a nearby hot surface or other potential ignition source, could result in an uncontrolled fire in the aft equipment bay.

    This [Canadian] AD mandates [for certain airplanes] the detailed visual inspection [for chafing conditions, e.g., fouling between the drain line and other components and insufficient clearance] and, if required, rectification [corrective actions], to ensure required clearance between the APU negative-G fuel feed drain line and its surrounding structure and components [and, for certain other airplanes, this [Canadian] AD mandates replacement of the APU negative-G fuel feed tube assembly and the drain line].

    Corrective actions include replacing the APU negative-G fuel feed drain line. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7418.

    Comments

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

    Conclusion

    We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed the following Bombardier, Inc. service information.

    • Bombardier Service Bulletin 601-0640, dated May 19, 2015; and Bombardier Service Bulletin 604-28-021, dated May 19, 2015. This service information describes procedures for a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, and corrective actions. These service bulletins are distinct since they apply to different airplane models.

    • Bombardier Service Bulletin 605-28-009, dated May 19, 2015. This service information describes procedures for a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, replacement of the APU negative-G fuel feed tube assembly and the drain line, and corrective actions.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 504 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection and Modification 22 work-hours × $85 per hour = $1,870 $6,334 $8,204 $4,134,816
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-20-09 Bombardier, Inc.: Amendment 39-18675; Docket No. FAA-2016-7418; Directorate Identifier 2015-NM-163-AD. (a) Effective Date

    This AD is effective January 9, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc. airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.

    (1) Model CL-600-2A12 (CL-601 Variant) airplanes, having serial numbers (S/Ns) 3001 through 3066 inclusive.

    (2) Model CL-600-2B16 (CL-601-3A and CL-601-3R Variants) airplanes, having S/Ns 5001 through 5194 inclusive.

    (3) Model CL-600-2B16 (CL-604 Variant) airplanes, having S/Ns 5301 through 5665 inclusive, and 5701 through 5970 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Reason

    This AD was prompted by a report that a potential chafing condition exists between the negative-G fuel feed drain line of the auxiliary power unit (APU) and its surrounding structure and components. We are issuing this AD to prevent a chafing condition in the negative-G fuel feed drain line, which can result in fuel leaking from the drain line. This condition, in combination with a nearby hot surface or other potential ignition source, could result in an uncontrolled fire in the aft equipment bay.

    (f) Compliance

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

    (g) Inspection and Corrective Action for Certain Airplanes

    Within 24 months after the effective date of this AD, comply with the applicable actions specified in paragraphs (g)(1) through (g)(3) of this AD, except as required by paragraph (i) of this AD. Do all applicable corrective actions before further flight.

    (1) For Model CL-600-2A12 (CL-601 Variant) airplanes, having S/Ns 3001 through 3066 inclusive; and Model CL-600-2B16 (CL-601-3A and CL-601-3R Variants) airplanes, having S/Ns 5001 through 5194 inclusive: Do a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601-0640, dated May 19, 2015.

    (2) For Model CL-600-2B16 (CL-604 Variant) airplanes, having S/Ns 5301 through 5665 inclusive: Do a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 604-28-021, dated May 19, 2015.

    (3) For Model CL-600-2B16 (CL-604 Variant) airplanes, having S/Ns 5701 through 5913 inclusive, 5917, 5918, and 5923 through 5970 inclusive: Do a detailed inspection for chafing conditions of the negative-G fuel feed drain line of the APU, and do all applicable corrective actions, in accordance with the Accomplishment Instructions in Part A and, if applicable, Part B of Bombardier Service Bulletin 605-28-009, dated May 19, 2015.

    (h) Modification for Certain Other Airplanes

    For Model CL-600-2B16 (604 Variant) airplanes having S/Ns 5914 through 5916 inclusive and 5919 through 5922 inclusive: Within 24 months after the effective date of this AD, replace the APU negative-G fuel feed tube assembly and the drain line, in accordance with Part C of the Accomplishment Instructions of Bombardier Service Bulletin 605-28-009, dated May 19, 2015.

    Note 1 to paragraph (h) of this AD:

    An inspection is not required.

    (i) Service Information Exception

    Where any service information identified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD specifies to contact the manufacturer for corrective action, before further flight, repair using a method approved by the Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO).

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO, ANE-170, 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 ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (k) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2015-26, dated August 31, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7418.

    (l) Material Incorporated by Reference

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

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

    (i) Bombardier Service Bulletin 601-0640, dated May 19, 2015.

    (ii) Bombardier Service Bulletin 604-28-021, dated May 19, 2015.

    (iii) Bombardier Service Bulletin 605-28-009, dated May 19, 2015.

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

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

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

    Issued in Renton, Washington, on September 19, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28340 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 730, 747, 748 and 762 [Docket No. 160303182-6999-02] RIN 0694-AG89 Amendment to the Export Administration Regulations: Removal of Special Iraq Reconstruction License AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by removing the Special Iraq Reconstruction License (SIRL) from the EAR. This action furthers the objectives of the Retrospective Regulatory Review Initiative that directs BIS and other federal agencies to streamline regulations and reduce unnecessary regulatory burdens on the public. Specifically, the SIRL is outdated and seldom used by exporters, who now have more efficient options for exports and reexports to Iraq and transfers (in-country) in Iraq. This rule also makes conforming changes.

    DATES:

    This rule is effective January 4, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Andrukonis, Director, Export Management and Compliance Division, Office of Exporter Services, Bureau of Industry and Security, by telephone at (202) 482-6396 or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The Bureau of Industry and Security (BIS) issues this final rule to remove the Special Iraq Reconstruction License (SIRL) provisions from the Export Administration Regulations (EAR), consistent with the Retrospective Regulatory Review Initiative. In the preamble to the proposed rule published in the Federal Register on June 7, 2016 (81 FR 36481) (hereinafter “the June 7 proposed rule” or “the June 7 rule”), BIS reviewed the origins of the SIRL, established in 2004 (69 FR 46070, July 30, 2004) to supplement options to facilitate exports and reexports to Iraq and transfers within Iraq of items in furtherance of civil reconstruction and other projects in Iraq funded by specified entities, including the United States government. BIS also reviewed the record of related transactions since the SIRL was established.

    The record indicates that exporters supplying items used in support of the civil reconstruction efforts in Iraq have not relied on the SIRL to advance those efforts, apparently because of its complexity and narrowness. Further, since 2004, BIS processed only three applications for the SIRL and approved only one, as compared to over 400 approved individual license applications for the export of items to Iraq between 2012 and 2015. Finally, with the implementation of updates to the EAR, the relative advantages of the SIRL have been offset by changes to individual licenses and other types of authorizations offered by BIS that provide less complex alternatives to the SIRL.

    Thus, consistent with the President's Retrospective Regulatory Review Initiative to streamline regulations and reduce unnecessary regulatory burdens on the public (see “Improving Regulatory Review” (Executive Order 13563 of January 18, 2011)), BIS concluded that the SIRL proved not to be useful.

    BIS received no comments in response to the June 7 rule. BIS, therefore, publishes in final form the amendments to the EAR to remove the SIRL as described initially in the June 7 rule.

    Export Administration Act

    Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

    Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

    2. This rule amends collections previously approved by the Office of Management and Budget (OMB) under Control Numbers 0694-0088, “Simplified Network Application Processing + System (SNAP+) and the Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and 0694-0137, “License Exemptions and Exclusions.”

    The total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and the aforementioned OMB Control Numbers are not expected to decrease significantly as a result of this removal of part 747 of the EAR because of the infrequent use of part 747 of the EAR by exporters.

    Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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

    4. The Chief Counsel for Regulation at the Department of Commerce certified to the Chief Counsel for Advocacy at the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis was published in the proposed rule and is not repeated here. BIS received no comments, which means there were no comments that addressed the economic impact of this rule on small entities. Therefore, a final regulatory flexibility analysis is not required and one was not prepared.

    List of Subjects 15 CFR Part 730

    Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.

    15 CFR Part 747

    Administrative practice and procedure, Exports, Foreign trade, Reporting and recordkeeping requirements.

    15 CFR Part 748

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

    15 CFR Part 762

    Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements.

    Accordingly, under the authority of 50 U.S.C. 1701 et seq., parts 730, 747, 748 and 762 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

    PART 730—[AMENDED] 1. The authority citation for part 730 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p 168; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of November 12, 2015, 80 FR 70667 (November 13, 2015); Notice of January 20, 2016, 81 FR 3937 (January 22, 2016); Notice of May 3, 2016, 81 FR 27293 (May 5, 2016); Notice of August 4, 2016, 81 FR 52587 (August 8, 2016); Notice of September 15, 2016, 81 FR 64343 (September 19, 2016).

    2. Supplement No. 1 to part 730 is amended by revising the entry for Collection number “0694-0129”. The revision reads as follows: Supplement No. 1 to Part 730—Information Collection Requirements Under the Paperwork Reduction Act: OMB Control Numbers Collection No. Title Reference in the EAR *         *         *         *         *         *         * 0694-0129 Export and Reexport Controls For Iraq §§ 732.3, 738, 744.18, 746.3(b)(1), 750, 758, 762, 772, 774. *         *         *         *         *         *         * PART 747—[REMOVED AND RESERVED] 3. Remove and reserve part 747. PART 748—[AMENDED] 4. The authority citation for part 748 continues to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016).

    § 748.1 [Amended]
    5. Section 748.1 is amended by removing the parenthetical phrase “(other than Special Iraq Reconstruction License applications)” from the first sentence of paragraph (d).
    § 748.7 [Amended]
    6. Section 748.7 is amended by removing the parenthetical phrase “(other than Special Iraq Reconstruction Licenses)” from paragraphs (a) and (d). PART 762—[AMENDED] 7. The authority citation for part 762 continues to read as follows: Authority:

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

    § 762.2 [Amended]
    8. Section 762.2 is amended by removing and reserving paragraph (b)(17). Dated: November 23, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-29056 Filed 12-2-16; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 748 [Docket No. 161005927-6927-01] RIN 0694-AH16 Amendment to the Export Administration Regulations: Removal of Semiconductor Manufacturing International Corporation From the List of Validated End-Users in the People's Republic of China AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to remove one end-user from the list of validated end-users in the People's Republic of China (PRC). Specifically, BIS amends Supplement Number 7 to part 748 of the EAR to remove the Semiconductor Manufacturing International Corporation (SMIC) as a validated end-user in the PRC. BIS makes this change at the company's request, and not in response to activities of concern.

    DATES:

    This rule is effective December 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Phone: 202-482-5991; Email: [email protected]

    SUPPLEMENTARY INFORMATION: Background Authorization Validated End-User

    Validated end-users (VEUs) are designated entities located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license. The names of the VEUs, as well as the dates they were so designated, and their respective eligible destinations (facilities) and items are identified in Supplement No. 7 to part 748 of the EAR (15 CFR part 748). Under the terms described in that supplement, and in conformity with section 748.15 of the EAR, VEUs may obtain eligible items without an export license from BIS. Eligible items vary between VEUs, and may include commodities, software, and technology, except items controlled for missile technology or crime control reasons on the Commerce Control List (CCL) (part 774 of the EAR).

    VEUs are reviewed and approved by the U.S. Government in accordance with the provisions of section 748.15 and Supplement Nos. 8 and 9 to part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy, Commerce, and other agencies, as appropriate, is responsible for administering the VEU program. BIS amended the EAR in a final rule published on June 19, 2007 (72 FR 33646), to create Authorization VEU.

    Amendment to the List of Validated End Users (VEU) in the People's Republic of China (PRC) Removal of the Semiconductor Manufacturing International Corporation (SMIC) From the List of VEUs in the PRC

    In this final rule, BIS amends Supplement No. 7 to part 748 of the EAR (Supplement No. 7) to remove the VEU SMIC from the list of VEUs in the PRC. Specifically, BIS removes information for SMIC from Supplement No. 7. BIS takes this action at SMIC's request. BIS makes this change to Supplement No. 7 at the company's request and not in response to activities of concern.

    Export Administration Act

    Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

    Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

    2. This rule involves collections previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization VEU, which carries an estimated burden of 30 minutes per submission. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and OMB Control Number 0694-0088 are not expected to increase significantly as a result of this rule. Notwithstanding any other provisions of law, no person is required to respond to, nor be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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

    4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because they are unnecessary. In determining whether to grant or remove VEU designations, a committee of U.S. Government agencies evaluates information about and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement Nos. 8 and 9. The criteria for evaluation by the committee are set forth in 15 CFR 748.15(a)(2) and the authority to remove VEU designations is contained in 15 CFR 748.15(a)(3). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313 (July 6, 2006) (proposed rule), and 72 FR 33646 (June 19, 2007) (final rule)). In publishing this final rule, BIS removes a VEU from the list of VEUs in the PRC, at the request of the VEU, similar to past requests by other VEUs, approved by the End-User Review Committee. This change has been made within the established regulatory framework of the VEU program. Further, this rule does not abridge the rights of the public or eliminate the public's option to export under any of the forms of authorization set forth in the EAR.

    Publication of this rule in other than final form is unnecessary because the procedure for revocation of a VEU or facility from the Authorized VEU list is similar to the license revocation procedure, which does not undergo public review. During the VEU revocation procedure, the U.S. Government analyzes confidential business information according to set criteria to determine whether a given authorized VEU entity remains eligible for VEU status. Revocation may be the result of a material change in circumstance at the VEU or the VEU's authorized facility. Such changes may be the result of a VEU or VEU facility no longer meeting the eligibility criteria for Authorization VEU, and may thus lead the U.S. Government to modify or revoke VEU authorization. VEUs or VEU facilities that undergo material changes that result in their no longer meeting the criteria to be eligible VEUs must, according to the VEU program, have their VEU status revoked. Here, however, SMIC requested removal from the VEU program. Consequently, BIS is removing SMIC from the list of VEUs. Public comment on whether to make the removal is unnecessary.

    Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. However, BIS finds good cause to waive the 30-day delay in effectiveness for this rule pursuant to 5 U.S.C. 553(d)(3) because the delay would be contrary to the public interest. BIS is simply removing SMIC as a VEU. In this rule, BIS amends the EAR consistent with established objectives and parameters administered and enforced by the responsible designated departmental representatives to the End-User Review Committee. Delaying this action's effectiveness would likely cause confusion regarding which items are authorized by the U.S. government, and in turn stifle the purpose of the VEU program. Accordingly, it would be contrary to the public interest to delay this rule's effectiveness.

    No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required and none has been prepared.

    List of Subjects in 15 CFR Part 748

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

    Accordingly, part 748 of the EAR (15 CFR parts 730-774) is amended as follows:

    PART 748—[AMENDED] 1. The authority citation for part 748 continues to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016).

    Supplement No. 7 to Part 748—[AMENDED] 2. Amend Supplement No. 7 to Part 748 by removing the entire entry for “Semiconductor Manufacturing International Corporation,” in “China (People's Republic of)”. Dated: November 23, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-29057 Filed 12-2-16; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF STATE 22 CFR Parts 120, 121, 122, 124, 126 and 127 [Public Notice: 9757] RIN 1400-AE05 Amendment to the International Traffic in Arms Regulations: Corrections and Clarifications AGENCY:

    Department of State.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    The Department of State is amending the International Traffic in Arms Regulations (ITAR) to clarify recent revisions made pursuant to the President's Export Control Reform (ECR) initiative. This rule clarifies the scope of disclosure of information submitted to the Directorate of Defense Trade Controls (DDTC), clarifies the policies and procedures regarding statutory debarments, and corrects administrative and typographical errors.

    DATES:

    This Final rule is effective on December 5, 2016. The Department will accept comments on the Final regulation up to January 4, 2017.

    ADDRESSES:

    Interested parties may submit comments within 30 days of the date of publication by one of the following methods:

    Email: [email protected] with the subject line, “ITAR Corrections and Clarifications.”

    Internet: You may view this Final rule and submit your comments by visiting the Regulations.gov Web site at www.regulations.gov, and searching for docket number DOS-2016-0070.

    Comments received after that date will be considered if feasible, but consideration cannot be assured. All comments (including any personally identifying information or information for which a claim of confidentiality is asserted in those comments or their transmittal emails) will be made available for public inspection and copying after the close of the comment period via the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Comments submitted via www.regulations.gov are immediately available for public inspection.

    FOR FURTHER INFORMATION CONTACT:

    Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2792; email [email protected] ATTN: Regulatory Change, Corrections and Clarifications.

    SUPPLEMENTARY INFORMATION:

    The Department makes the following revisions to the ITAR in this final rule:

    • A definition of “classified” is moved from § 121.1(e) to § 120.46;

    • The structure of § 121.1(a)-(e) is realigned, with paragraphs (a) and (b) revised to clarify the existing requirements for United States Munitions List (USML) controls, and paragraphs (c), (d) and (e) removed;

    • Thirteen USML categories are amended to clarify that commodities, software, and technology subject to the Export Administration Regulations (EAR) and related to defense articles in a USML category may be exported or temporarily imported on the same license with defense articles from any category, provided they are to be used in or with that defense article;

    • In three places within the USML, the word “enumerated” is replaced with the word “described” to make the language consistent with changes directed in the Final Rule published at 79 FR 61226, Oct. 10, 2014;

    • Section 122.4(c)(4) is revised to permit the Directorate of Defense Trade Controls (DDTC) to approve an alternative timeframe, not less than 60 days, to the current 60-day requirement for registrants to provide a signed amended agreement;

    • Section 124.2(c)(5)(v) is revised to correct errors to the USML category references for gas turbine engine hot sections, from VI(f) and VIII(b) to Category XIX;

    • Section 124.12 is amended in paragraph (a)(9) to update the name of the Defense Investigative Service to Defense Security Service;

    • Section 126.9 on Advisory Opinions and Related Authorizations is amended to correct paragraph (a);

    • Paragraph (b) of § 126.10 is amended to clarify the scope of control and disclosure of information, however, notwithstanding the changes to paragraph (b) it is the Department's policy not to publicly release information relating to activities regulated by the ITAR except as required by law or when doing so is otherwise in the interest of the United States Government; and

    • Section 127.7(b) is amended to clarify the policies and procedures regarding statutory debarments (addressing inadvertent omissions resulting from a prior amendment to that section), and § 127.11 is amended to make conforming revisions to paragraph (c) omitted from prior amendment to that section.

    Regulatory Analysis and Notices Administrative Procedure Act

    The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (Rulemaking) and 554 (Adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is providing 30 days for the public to submit comments without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.

    Regulatory Flexibility Act

    Since this rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

    Unfunded Mandates Reform Act of 1995

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

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking is not a major rule within the definition of 5 U.S.C. 804.

    Executive Orders 12372 and 13132

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

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). These executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has determined that, given the nature of the amendments made in this rulemaking, there will be minimal cost to the public. Therefore, the benefits of this rulemaking outweigh the cost. This rule has not been designated a “significant regulatory action” by the Office and Information and Regulatory Affairs under Executive Order 12866.

    Executive Order 12988

    The Department of State reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

    Executive Order 13175

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

    Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

    List of Subjects 22 CFR Parts 120 and 121

    Arms and munitions, Classified information, Exports.

    22 CFR Part 122

    Arms and munitions, Exports.

    22 CFR Part 124

    Arms and munitions, Exports, Technical assistance.

    22 CFR Part 126

    Arms and munitions, Exports.

    22 CFR Part 127

    Arms and munitions, Exports, Crime, Law, Penalties, Seizures and forfeitures.

    Accordingly, for the reasons set forth above, title 22, chapter I, subchapter M, parts 120, 121, 122, 124, 126, and 127 are amended as follows:

    PART 120—PURPOSE AND DEFINITIONS 1. The authority citation for part 120 continues to read as follows: Authority:

    Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    2. Section 120.46 is added to read as follows:
    § 120.46 Classified.

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

    PART 121—THE UNITED STATES MUNITIONS LIST 3. The authority citation for part 121 continues to read as follows: Authority:

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

    4. Section 121.1 is amended by: a. Revising paragraphs (a) and (b); b. Removing paragraphs (c), (d), and (e); c. Removing the words “controlled in this category” in paragraph (x) and the Note to paragraph (x) for each of the following USML categories: Category IV, Category V, Category VI, Category VII, Category VIII, Category IX, Category X, Category XI, Category XIII, Category XV, Category XVI, Category XIX, and Category XX; d. In Category VI: i. Removing the word “enumerated” and adding in its place the word “described” in Note 1 to paragraph (f); and ii. Removing the word “enumerated” and adding in its place the word “described” in paragraph (g); and e. Removing the word “enumerated” and adding in its place the word “described” in paragraph (h) of Category VII.

    The revisions read as follows:

    § 121.1 The United States Munitions List.

    (a) U.S. Munitions List. In this part, articles, services, and related technical data are designated as defense articles or defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act and constitute the U.S. Munitions List (USML). Changes in designations are published in the Federal Register. Paragraphs (a)(1) through (3) of this section describe or explain the elements of a USML category:

    (1) Composition of U.S. Munitions List categories. USML categories are organized by paragraphs and subparagraphs identified alphanumerically. They usually start by enumerating or otherwise describing end-items, followed by major systems and equipment; parts, components, accessories, and attachments; and technical data and defense services directly related to the defense articles of that USML category.

    (2) Significant Military Equipment. All items described within a USML paragraph or subparagraph that is preceded by an asterisk (*) are designated “Significant Military Equipment” (see § 120.7 of this subchapter). Note that technical data directly related to the manufacture or production of a defense article designated as Significant Military Equipment (SME) is also designated as SME.

    (3) Missile Technology Control Regime (MTCR) designation. Annotation with the parenthetical “(MT)” at the end of a USML entry, or inclusion in § 121.16, indicates those defense articles that are on the MTCR Annex. See § 120.29 of this subchapter.

    (b) Order of review. Articles are controlled on the U.S. Munitions List because they are either:

    (1) Enumerated in a category; or

    (2) Described in a “catch-all” paragraph that incorporates “specially designed” (see § 120.41 of this subchapter) as a control parameter. In order to classify an item on the USML, begin with a review of the general characteristics of the item. This should guide you to the appropriate category, whereupon you should attempt to match the particular characteristics and functions of the article to a specific entry within that category. If the entry includes the term “specially designed,” refer to § 120.41 to determine if the article qualifies for one or more of the exclusions articulated in § 120.41(b). An item described in multiple entries should be categorized according to an enumerated entry rather than a specially designed catch-all paragraph. In all cases, articles not controlled on the USML may be subject to another U.S. government regulatory agency (see § 120.5 of this subchapter, and Supplement No. 4 to part 774 of the Export Administration Regulations for guidance on classifying an item subject to the EAR).

    PART 122—REGISTRATION OF MANUFACTURERS AND EXPORTERS 5. The authority citation for part 122 continues to read as follows: Authority:

    Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.

    6. Section 122.4 is amended by revising paragraph (c)(4) to read as follows:
    § 122.4 Notification of changes in information furnished by registrants.

    (c) * * *

    (4) Amendments to agreements approved by the Directorate of Defense Trade Controls to change the name of a party to those agreements. The registrant must provide to the Directorate of Defense Trade Controls a signed copy of such an amendment to each agreement signed by the new U.S. entity, the former U.S. licensor and the foreign licensee, within 60 days of this notification, unless an extension of time is approved by the Directorate of Defense Trade Controls. Any agreement not so amended may be considered invalid.

    PART 124—AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE SERVICES 7. The authority citation for part 124 continues to read as follows: Authority:

    Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    8. Section 124.2 is amended by revising paragraph (c)(5)(v) to read as follows:
    § 124.2 Exemptions for training and military service.

    (c) * * *

    (5) * * *

    (v) Gas turbine engine hot sections covered by Category XIX(f);

    9. Section 124.12 is amended by revising paragraph (a)(9) to read as follows:
    § 124.12 Required information in letters of transmittal.

    (a) * * *

    (9) For agreements that may require the export of classified information, the Defense Security Service cognizant security offices that have responsibility for the facilities of the U.S. parties to the agreement shall be identified. The facility security clearance codes of the U.S. parties shall also be provided.

    PART 126—GENERAL POLICIES AND PROVISIONS 10. The authority citation for part 126 continues to read as follows: Authority:

    Secs. 2, 38, 40, 42, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 U.S.C. 2651a; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p. 899; Sec. 1225, Pub. L. 108-375; Sec. 7089, Pub. L. 111-117; Pub. L. 111-266; Sections 7045 and 7046, Pub. L. 112-74; E.O. 13637, 78 FR 16129.

    11. Section 126.9 is amended by revising paragraph (a) to read as follows:
    § 126.9 Advisory opinions and related authorizations.

    (a) Preliminary authorization determinations. A person may request information from the Directorate of Defense Trade Controls as to whether it would likely grant a license or other approval for a particular defense article or defense service to a particular country. Such information from the Directorate of Defense Trade Controls is issued on a case-by-case basis and applies only to the particular matters presented to the Directorate of Defense Trade Controls. These opinions are not binding on the Department of State and may not be used in future matters before the Department. A request for an advisory opinion must be made in writing and must outline in detail the equipment, its usage, the security classification (if any) of the articles or related technical data, and the country or countries involved.

    12. Section 126.10 is amended by revising paragraph (b) to read as follows:
    § 126.10 Disclosure of information.

    (b) Determinations required by law. Section 38(e) of the Arms Export Control Act (22 U.S.C. 2778(e)) provides, by reference to section 12(c) of the Export Administration Act (50 U.S.C. 2411), that information obtained for the purpose of consideration of, or concerning, license applications shall be withheld from public disclosure unless the release of such information is determined by the Secretary to be in the national interest. Section 38(e) of the Arms Control Export Act further provides that, the names of countries and types and quantities of defense articles for which licenses are issued under this section shall not be withheld from public disclosure unless certain determinations are made that the release of such information would be contrary to the national interest. Such determinations required by section 38(e) shall be made by the Assistant Secretary of State for Political-Military Affairs.

    PART 127—VIOLATIONS AND PENALTIES 13. The authority citation for part 127 continues to read as follows: Authority:

    Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129; Pub. L. 114-74, 129 Stat. 584.

    14. Section 127.7 is amended by revising paragraph (b) to read as follows:
    § 127.7 Debarment.

    (b) Statutory debarment. It is the policy of the Department of State not to consider applications for licenses or requests for approvals involving any person who has been convicted of violating the Arms Export Control Act or convicted of conspiracy to violate that Act for a three year period following conviction and to prohibit that person from participating directly or indirectly in any activities that are subject to this subchapter. Such individuals shall be notified in writing that they are statutorily debarred pursuant to this policy. A list of persons who have been convicted of such offenses and debarred for this reason shall be published periodically in the Federal Register. Statutory debarment in such cases is based solely upon the outcome of a criminal proceeding, conducted by a court of the United States, which established guilt beyond a reasonable doubt in accordance with due process. Reinstatement is not automatic, and in all cases the debarred person must submit a request for reinstatement to the Department of State and be approved for reinstatement before engaging in any activities subject to this subchapter. The procedures of part 128 of this subchapter are not applicable in such cases.

    15. Section 127.11(c) is revised to read as follows:
    § 127.11 Past violations.

    (c) Debarred persons. Persons debarred pursuant to § 127.7(b) (statutory debarment) may not utilize the procedures provided by paragraph (b) of this section while the statutory debarment is in force. Such persons may utilize only the procedures provided by § 127.7(d).

    Dated: November 18, 2016. Tom Countryman, Acting Under Secretary, Arms Control and International Security, Department of State.
    [FR Doc. 2016-28406 Filed 12-2-16; 8:45 am] BILLING CODE 4710-25-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Parts 965 and 966 [Docket No. FR 5597-F-03] RIN 2577-AC97 Instituting Smoke-Free Public Housing AGENCY:

    Office of the Assistant Secretary for Public and Indian Housing, HUD.

    ACTION:

    Final rule.

    SUMMARY:

    This rule requires each public housing agency (PHA) administering public housing to implement a smoke-free policy. Specifically, no later than 18 months from the effective date of the rule, each PHA must implement a “smoke-free” policy banning the use of prohibited tobacco products in all public housing living units, indoor common areas in public housing, and in PHA administrative office buildings. The smoke-free policy must also extend to all outdoor areas up to 25 feet from the public housing and administrative office buildings. This rule improves indoor air quality in the housing; benefits the health of public housing residents, visitors, and PHA staff; reduces the risk of catastrophic fires; and lowers overall maintenance costs.

    DATES:

    Effective date February 3, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Leroy Ferguson, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-0500; telephone number 202-402-2411 (this is not a toll-free number). Persons who are deaf or hard of hearing and persons with speech impairments may access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

    SUPPLEMENTARY INFORMATION:

    I. Executive Summary A. Purpose of the Rule

    The purpose of the rule is to require PHAs to establish, within 18 months of the effective date, a policy disallowing the use of prohibited tobacco products, as such term is defined in § 965.653(c), inside all indoor areas of public housing, including but not limited to living units, indoor common areas, electrical closets, storage units, and PHA administrative office buildings, and in all outdoor areas within 25 feet of the housing and administrative office buildings (collectively, “restricted areas”). As further discussed in this rule, such a policy is expected to improve indoor air quality in public housing; benefit the health of public housing residents, visitors, and PHA staff; reduce the risk of catastrophic fires; and lower overall maintenance costs.

    B. Summary of Major Provisions of the Rule

    This rule applies to all public housing other than dwelling units in mixed-finance buildings. PHAs are required to establish, within 18 months of the effective date of the rule, policies disallowing the use of prohibited tobacco products in all restricted areas. PHAs may, but are not required to, further restrict smoking to outdoor dedicated smoking areas outside the restricted areas, create additional restricted areas in which smoking is prohibited (e.g., near a playground), or, alternatively, make their entire grounds smoke-free.

    PHAs are required to document their smoke-free policies in their PHA plans, a process that requires resident engagement and public meetings. The proscription on the use of prohibited tobacco products must also be included in a tenant's lease, which may be done either through an amendment process or as tenants renew their leases annually.

    C. Costs and Benefits of This Rule

    The costs to PHAs of implementing smoke-free policies may include training, administrative, legal, and enforcement costs. The costs of implementing a smoke-free policy are minimized by the existence of current HUD guidance on many of the topics covered by the mandatory smoke-free policy required by this rule. Already, hundreds of PHAs have voluntarily implemented smoke-free policies. Furthermore, infrastructure already exists for enforcement of lease violations, and violation of the smoke-free policy would constitute a lease violation. In addition, time spent by PHA staff on implementing and enforcing the smoke-free policy will be partially offset by the time that staff no longer have to spend mediating disputes among residents over secondhand smoke (SHS) infiltration within living units. Given the existing HUD guidance, initial learning costs (such as the costs of staff and resident training understanding of this policy) associated with implementation of a smoke-free policy may not be significant. For the hundreds of PHAs that are already implementing voluntary smoke-free policies, there will be minimal costs of updating smoke-free policies, and these minimal costs will generally apply only if their existing policies are not consistent with the minimum requirements for smoke-free policies proposed by this rule.

    However, implementing the requirements successfully may require additional enforcement legal costs for cases where repeated violations lead to evictions. Total recurring costs to PHAs of implementation and enforcement are expected to be $7.7 million, although they may be higher in the first few years of implementation, given the necessity of establishing designated smoking areas (a total of $30.2 million in the first year).

    The benefits of smoke-free policies could also be considerable. Over 700,000 units would be affected by this rule (including over 500,000 units inhabited by elderly households or households with a non-elderly person with disabilities), and their non-smoking residents would have the potential to experience health benefits from a reduction of exposure to SHS. PHAs will also benefit from a reduction of damage caused by smoking, and residents and PHAs both gain from seeing a reduction in injuries, deaths, and property damage from fires caused by prohibited tobacco products. Estimates of these and other rule-induced impacts are summarized in the following table:

    Source of impact Type of impact Amount
  • ($millions)
  • Low Standard High
    PHA Compliance/Enforcement 1 Recurring Cost (highest initially) 6 7.7 30 Inconvenience 2 Recurring Cost 56 94 340 PHA Reduced Maintenance 3 Recurring Benefit 15.9 21.3 37.5 PHA Reduced Fire Risk 4 Recurring Benefit 4.7 4.7 4.7 Residents' Well-Being 5 Recurring Benefit 101 283 314 Net Benefits 6 Recurring Net Benefits −248 +207 +262 1 The high estimate includes initial costs of implementation which could run as high as $30 million per year. The low and standard include only recurring costs. The low estimate includes a low-end cost estimate of eviction to a PHA ($700 per case and $500,000 in aggregate). The standard estimate includes a high estimate of eviction costs ($3000 per case and$ 2.2 million in aggregate). 2 The low and standard estimates are generated from the price-elasticity of demand for cigarettes and assumed reduction in smoking derived from studies of smoking bans. The high estimate was generated from a study of public health policies on SIDS and inferring behavioral change of smokers from the impact of SIDS. 3 The low and high estimates are based on a range of $1,250 to $2,955 per unit. The standard estimate is based on an estimate of $1,674 per unit. 4 HUD does not have data to predict a range of fire reduction risks. 5 The low and standard estimates of residents' well-being is estimated using the rent premium approach. The high estimate is derived from Quantitative Approach #3 described in the Appendix 1. 6 The standard net benefit is equal to the sum of the standard benefits less the less the sum of the standard costs. The low net benefit is equal to the low benefits less the high costs. The high net benefit is the high benefits less the low costs.

    For additional details on the costs and benefits of this rule, please see the Regulatory Impact Analysis (RIA) for this rule, which can be found at www.regulations.gov, under the docket number for this rule. Additional information on how to view the RIA is included below.

    II. Background

    On November 17, 2015, HUD published a proposed rule at 80 FR 71762, soliciting input from the public on requiring PHAs to have smoke-free policies in place for public housing. The proposed rule was an outgrowth of many years of research on the harms and costs associated with smoking and ongoing efforts from HUD to promote the voluntary adoption of smoke-free policies by PHAs and the owners/operators of federally subsidized multifamily properties. The preamble of this proposed rule contains more information on HUD's efforts and the findings on which HUD relied in proposing this regulation.

    As a result of these combined actions, over 600 PHAs have implemented smoke-free policies in at least one of their buildings. While this voluntary effort has been highly successful, it has also resulted in a scattered distribution of smoke-free policies, with the greatest concentration in the Northeast, West, and Northwest, which also results in unequal protection from SHS for public housing residents. This is due to several factors, including the fact that many of the benefits accrue to residents instead of PHAs, implementation of new policies can be difficult in fiscally tight times, uncertainty over whether indoor smoking bans are enforceable, and differences in the opinions and experience of the boards that govern PHAs. HUD recognizes that additional action is necessary to truly eliminate the risk of SHS exposure to public housing residents, reduce the risk of catastrophic fires, lower overall maintenance costs, and implement uniform requirements to ensure that all public housing residents are equally protected.

    Therefore, HUD is requiring PHAs to implement smoke-free policies within public housing except for dwelling units in a mixed-finance project. Public housing is defined as low-income housing, and all necessary appurtenances (e.g., community facilities, public housing offices, day care centers, and laundry rooms) thereto, assisted under the U.S. Housing Act of 1937 (the 1937 Act), other than assistance under section 8 of the 1937 Act.

    In finalizing this policy, it is important for HUD to reiterate that HUD's rule does not prohibit individual PHA residents from smoking. PHAs should continue leasing to persons who smoke. In addition, this rule is not intended to contradict HUD's goals to end homelessness and help all Americans secure quality housing. Rather, HUD is prohibiting smoking inside public housing living units and indoor common areas, public housing administrative office buildings, public housing community rooms or community facilities, public housing day care centers and laundry rooms, in outdoor areas within 25 feet of the housing and administrative office buildings, and in other areas designated by a PHA as smoke-free (collectively, “restricted areas”). PHAs have the discretion to establish outdoor designated smoking locations outside of the required 25 feet perimeter, which may include partially enclosed structures, to accommodate smoker residents, to establish additional smoke-free areas (such as in and around a playground), or, alternatively, to make their entire grounds smoke-free.

    Furthermore, section 504 of the Rehabilitation Act of 1973, the Fair Housing Act, and the Americans with Disabilities Act provide the participant the right to seek a reasonable accommodation, including requests from residents with mobility impairments or mental disabilities. A request for a reasonable accommodation from an eligible participant must be considered, and granted unless there is a fundamental alteration to the program or an undue financial and administrative burden.

    III. Changes Made at the Final Rule Stage

    The only substantive change in this final rule from the proposed rule is that now waterpipes (also known as hookahs) are included in the list of products that may not be used in the restricted areas. PHAs are required under this final rule to only permit the use of waterpipes outside the restricted areas. While HUD found no evidence of human fatalities associated with hookahs, there were sufficient incidents of property damage to warrant their inclusion in this rule.

    In addition, HUD has changed the items covered under the smoking ban from “lit tobacco products” to “prohibited tobacco products” to make clear that waterpipes are included in the list of prohibited products.

    IV. Responses to Comments 25-Foot Boundary From Buildings

    Some commenters objected to the proposed 25-foot smoke-free perimeter around all public housing buildings. Some felt that the distance was too large because it would force smokers off the property and onto sidewalks or adjacent areas, including the street. Others expressed concern that the distance would be too great for elderly residents or residents with disabilities or would place residents in danger from having to travel so far. Some believed that the distance could subject smokers to crime or would force parents to leave sleeping children. Some also suggested that forcing residents to go so far to smoke would cause them to leave public housing, increasing turnover costs for PHAs.

    Other reasons for objecting included an argument that it would effectively require PHAs to build designated smoking areas or it would be impossible to enforce. Commenters stated that requiring smokers to go outdoors is enough and that residents should be able to smoke on their porches or balconies. Some wrote that any extra perimeter is unfair if there is not a shared porch or landing where smoking there would affect others.

    Commenters objecting to the 25-foot distances suggested that instead PHAs be allowed to create their own policies regarding outdoor smoking and any distance restrictions around buildings, taking their own layouts into account. Others suggested that HUD allow PHAs to comply with existing smoke-free policies or use minimum distances required by state laws.

    Several commenters pointed out that PHAs may use office space in buildings not owned by the PHA, and the PHA has no control over the actions of other tenants in the building. These commenters asked for additional clarity on how the proposed rule would apply to such situations.

    Some commenters suggested alternative requirements to the 25-foot barrier, including a minimum distance from common entrances or using a shorter distance such as 15 or 20 feet. Commenters also asked HUD for additional insight into their rationale for a 25-foot perimeter.

    A group of commenters, however, supported the perimeter and even requested that HUD expand the outdoor restrictions. Some stated that 25 feet may not be enough to protect children, and that outdoor smoking should also be banned in areas frequented by children, particularly playgrounds. Some suggested that the perimeter be extended to 25 feet from all playgrounds. Other commenters suggested that all common areas, such as pools, should also be included in the smoke-free zone. Commenters suggesting that the smoke-free zone be more than 25 feet asked for a range of new distances, from 40-50 feet to 100 feet. Commenters stated that 25 feet may still be too close to buildings to prevent smoke drift. Some also asked that HUD expressly prohibit parking lots from being used as designated smoking areas.

    Several commenters suggested that the smoke-free perimeter should be extended to cover the entire property. These commenters stated that such a policy would protect residents from drifting smoke in designated areas or would make smoke-free enforcement easier. Another commenter suggested that HUD should allow a PHA to designate a smoking area, outside of which no smoking would be allowed.

    HUD Response: HUD appreciates the comments on this part of the rule, and recognizes that for some developments, residents may have to cross the street to be 25 feet away from the building. HUD included the 25-foot perimeter in the proposed rule based on several factors. A smoke-free perimeter of sufficient size must be established around doorways in order to limit smoke exposure to individuals entering and leaving buildings. A sufficient perimeter is also needed to prevent SHS from entering windows that are open in units on lower floors and to prevent SHS exposure to individuals on lower floor balconies or porches. One study found that toxins present in SHS approach ordinary background levels approximately 23 feet from the source (Repace, 2005). In addition, local government ordinances have customarily adopted 25-foot boundaries as standard practice when prohibiting outdoor smoking in the vicinity of public building entrances and windows. PHAs without ample grounds may consider working with their local municipalities to identify nearby public areas where residents who wish to continue smoking can do so in a safe environment. PHAs may also consider, if available, offering these residents the option to move to an alternate site that has more accessible space for outdoor smoking. The smoke-free policy must extend to all outdoor areas up to 25 feet from the housing and administrative office buildings, or to the PHA's property boundary in situations where the boundary is less than 25 feet from the PHA-owned buildings. These decisions are at the discretion of the PHA. However, the rule requires the 25-foot restriction to be enforced across all PHAs.

    This policy is not intended to force anyone to move out of public housing, but instead to offer safe, decent and sanitary housing for all populations. HUD is not requiring any PHA to build a designated smoking area, but to work with residents to address any difficulties they encounter. HUD understands that PHAs only have the authority to implement smoke-free policies in buildings and office spaces they own.

    Burden on PHAs

    Commenters objected to the proposed rule on the basis that it would impose too great a burden on PHAs. Some stated that this was an unfunded mandate from HUD. Others stated that the proposed rule would necessitate increased monitoring of residents without increasing funding for PHAs, or would increase the workload of an already inadequate staff. Several commenters wrote that the proposed rule would add administrative burden in implementing the policies by requiring education of residents, and through increased enforcement efforts. Several commenters pointed out that implementing the policies would have costs related to unit turnaround, either due to increased evictions or as a result of residents voluntarily moving out. Some stated that the proposed rule would increase paperwork on the PHA without providing additional benefits to residents or that putting the burden of monitoring and enforcement on public housing administrators is not practical or fair.

    Commenters also stated that the policies would increase vacancies at public housing properties, stressing PHAs both financially and in Real Estate Assessment Center (REAC) evaluations. Commenters asked that HUD make financial incentives available to PHAs to offset implementation costs.

    HUD Response: HUD acknowledges that PHAs may incur training, administrative, legal and enforcement costs, as well as additional expenditure of staff time in these areas. These expenses are outlined in the Regulatory Impact Analysis (RIA). All PHAs receive an annual operating subsidy and capital fund grants, and could also use their operating reserves to cover the initial costs of implementing smoke-free policies. PHAs that have already implemented smoke-free policies indicated in stakeholder listening sessions that the costs were less than they expected once the smoke-free policy was fully implemented, and after that there were savings in unit turnover costs. HUD expects that costs will be minimized by PHAs' utilization of existing HUD resources on the smoke-free policy and continued usage of standard lease enforcement procedures. Additionally, HUD has no evidence that this policy will increase vacancies. In contrast, housing agencies that have implemented smoke-free policies have experienced greater demand for their units. This rule will not impose any Federal mandates on any state, local, or tribal governments or the private sector within the meaning of the Unfunded Mandates Reform Act of 1995 (UMRA).

    Burden on Small PHAs

    In addition to the concerns about burdens on PHAs generally, some commenters expressed concerns with burdens on small PHAs. Some stated that the proposed rule would have an outsized impact on small PHAs' administrative expenses. Others commented that there was not enough information in the proposed rule on how maintenance or insurance costs would be lower for small PHAs. Others stated that small, rural PHAs would be at a disadvantage because they are unable to partner with outside organizations to help with implementing the rule in a way that larger, more urban PHAs could. Some commenters also expressed concerns that small PHAs face greater competition in the affordable housing market, so a smoking ban would increase their vacancy rates.

    HUD Response: Although some aspects of the rule may be burdensome, as noted in the RIA, HUD expects these burdens to be accompanied by the benefits of smoke-free policies, including reduction in maintenance costs, less risk of catastrophic fires, and fewer residential complaints from residents who are impacted by smoke. Additionally, creating a smoke-free environment may be more attractive to tenants and could result in increased leasing. In fact, some PHAs use smoke-free policies as a marketing feature to attract tenants. Cost savings are expected to be realized in the less expensive turnover of rental units. For example, painting and carpet cleaning costs are expected to be much lower with a smoke-free policy in place.

    The capital and operating funds can be used to implement smoke-free policies. Note, however, that capital funds can only be used for eligible activities identified in 24 CFR 905.200. Financial costs relative to funding for small PHAs are not expected to be greater than relative costs facing larger PHAs. Small PHAs, like large PHAs, can request insurance premium allowances from their insurance providers after implementing smoke-free policies.

    Housing agencies are encouraged to start the process of implementing smoke-free policies early so that the necessary implementation activities can be spread out over the allowed 18-month implementation period with regular lease renewal practices (e.g., lease recertification). Small PHAs unable to partner with as many outside organizations will have access to national smoking cessation resources such as 1-800-QUIT-NOW, a toll-free portal which routes callers to their state quitline, and community health centers for any smoking cessation needs. HUD is also working with federal partners to identify geographical areas with the greatest need for resources, and will, when possible, work to provide additional technical assistance. Best practices on moving to a smoke-free environment are found on HUD's Web page for Smoke-Free Housing Toolkits (http://portal.hud.gov/hudportal/HUD?src=/smokefreetoolkits1). Additional smoke-free guidance will be made available to PHAs.

    HUD has no evidence that this policy will increase vacancies. In contrast, housing agencies that have implemented smoke-free policies have experienced greater demand for their units.

    Burden on Residents

    Many commenters objected to the proposed rule because of the burden it would place on public housing residents. Some stated that an indoor smoking ban is unfair to persons with disabilities who cannot easily travel outside their units, particularly if they live alone and cannot leave without help. Others commented that it was not right to force the elderly or persons with disabilities outside in bad weather, putting their health at risk. Some simply stated that it would be unfair to make the elderly or persons with disabilities walk that far to smoke. Some commented that people use smoking to deal with medical issues; prohibiting indoor smoking would force them to forego the use of nicotine to combat their pain.

    Other commenters focused on the effects the proposed ban would have on those with mental health issues who may rely on smoking to help deal with those issues. Some stated that residents in acute stages of post-traumatic stress syndrome need to smoke to calm down but cannot leave their apartment. Some stated that smoking helps people calm down and relieve stress, and this rule would increase their burden. Several commenters stated that the use of eviction as an enforcement mechanism would result in the most vulnerable residents in public housing, who need secure housing the most, being forced out of their homes.

    Some commenters stated that forcing residents, particularly women, outside at night and in bad weather would put them in danger.

    Commenters stated that the rule should exempt PHAs serving seniors or residents with disabilities to avoid discrimination problems. Others asked that HUD allow PHAs to grandfather in existing residents; some pointed out that the smoke damage is already done, and it will be difficult to tell if the smell of smoke is from current or past smoking. However, other commenters stated that HUD should not allow smoke-free policies to be grandfathered in for existing public housing residents. These commenters stated that grandfathering the smoking ban for some but not all the residents would make enforcement difficult.

    HUD Response: Although smokers will face new requirements, other residents will generally benefit from an improved quality of life that minimizes the dangers of indoor smoking and SHS exposure. In addition, residents should experience improved indoor air quality and reduced interpersonal friction among neighbors exposed to others' smoking.

    There is no “right” to smoke in a rental home, and smokers are not a protected sub-class under anti-discrimination laws. In addition, this rule does not prohibit smoking by residents; rather, it requires that if residents smoke that they do so at least 25 feet away from the buildings. HUD is aware that commenters and national surveys suggest that persons with disabilities tend to smoke at a higher rate than persons without a disability. See national survey of smoking prevalence among those with disabilities at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6444a2.htm. PHAs are encouraged to engage with these residents early and often when developing the smoke-free policy and to work with social service agencies to identify other alternatives to smoking in their units. This rule grants flexibilities to PHAs in addressing difficulties encountered by residents. In the case that a particular resident is especially burdened by the smoke-free policy, the PHA may consider such flexibilities as moving that resident to a first-floor unit which would provide easier access to smoking outside of their units, or modifying a walkway for easier use by that resident (e.g. adding additional lighting). HUD encourages PHAs to ensure an appropriately safe environment for all residents, smokers and nonsmokers alike.

    HUD is not aware of any medical conditions for which smoking is considered a legitimate, proven treatment. Also, in situations where nicotine treatment is appropriate (i.e., smoking cessation) it can be delivered orally or through dermal applications. Research has shown that smokers with behavioral health conditions (i.e., mental and/or substance abuse disorders) actually benefit from quitting smoking. As summarized by the Substance Abuse and Mental Health Services Administration, research has demonstrated that quitting smoking can decrease depression, anxiety, and stress, and for those in treatment for substance use disorders, smoking cessation can increase long-term abstinence from alcohol or other drugs.7

    7http://www.samhsa.gov/sites/default/files/topics/alcohol_tobacco_drugs/tobacco-behavioral-health-issue-resources.pdf.

    Additionally, under this regulation, PHAs cannot “grandfather” tenants by exempting them from the application of the rule. PHAs that have implemented smoke-free policies have reported significant implementation challenges when they allow current residents to be “grandfathered” into the policy. Allowing this situation presents additional enforcement challenges and will only prolong the time that other residents are exposed to SHS and the risk of fire.

    Smoking Cessation

    Many commenters asked HUD to include cessation help in the final rule. Commenters had a variety of suggestions on the best way to provide such services. Some stated that HUD should partner with other federal agencies such as the National Institutes of Health or Health and Human Services to provide resources; they stated that Health Centers target the same populations served by public housing. Commenters referenced the national quitline or state-operated quitlines as possible resources. Commenters stated that PHAs should be required to use cessation services that are proven to be effective, and suggested that PHAs and HUD work with state and local health agencies or tobacco prevention and cessation programs for resources. Some commenters pointed out that there is cessation help available through Medicaid and private insurance plans. Commenters also asked that HUD provide toolkits or other help to PHAs looking to partner with organizations to provide cessation help.

    Commenters specifically mentioned a variety of cessation methods or techniques. Commenters suggested that HUD mandate that the types of required cessation treatments be varied instead of limited to a few options. Some requested that HUD provide nicotine replacement therapy. Some stated that any cessation courses or counseling be provided on-site. Some specifically stated that PHAs should give residents information on the interaction between nicotine addiction and psychotropic drugs.

    Commenters stated that cessation support should begin now and continue for a longer period of time after the effective date of the rule. Commenters stated that any cessation materials should be available in languages other than English when appropriate for the PHA's population.

    Some commenters suggested that HUD should supply funding for the cessation services or at least help PHAs locate funding, especially if the PHA is serving a population with mental health issues. Several suggested that PHAs be allowed to use savings generated by the proposed rule to pay for incentives for cessation and associated costs of treatment programs such as child care or transportation. Commenters stated that the time that residents spend taking or volunteering at cessation courses should count towards their community service requirement or that PHAs should be able to count funding provided for cessation help and incentives as funding towards fulfilling Section 3 requirements.

    Some commenters stated that residents face a variety of barriers to quitting smoking, including the fact that limited cellphone minutes or language barriers interfere with the use of quitlines. Others stated that it would be unfair to hold PHAs accountable for public health outcomes like cessation. Commenters were also concerned that rural PHAs would not have the same access to cessation tools and programs as PHAs in urban areas. Commenters asked HUD to explicitly forbid PHAs from requiring cessation as part of enforcement efforts.

    HUD Response: HUD acknowledges the importance of connecting residents interested in quitting smoking to cessation resources, preferably at no cost. Although HUD will not directly provide cessation assistance, HUD has resources available on Healthy Homes Web site (http://portal.hud.gov/hudportal/HUD?src=/program_offices/healthy_homes/hhi) for residents interested in cessation. Medicaid covers the cost of tobacco cessation services and prescription smoking cessation medications for recipients, and although Medicaid coverage varies by state, all 50 states offer at least some smoking cessation coverage. Residents of all states also have access to “quitlines,” which are free evidence-based cessation services that residents can access by calling 1-800-QUIT-NOW. HUD is also working closely with Federal agencies involved in tobacco control to help make cessation resources available to residents. For example, the Centers for Disease Control and Prevention (CDC) has coordinated with state tobacco control programs (i.e. health departments that receive CDC tobacco control grants in all 50 states) to assist PHAs in implementing smoke-free policies in their respective states. The CDC is also developing educational materials for housing managers and residents to help link them to smoking cessation services (e.g. community health centers). Federally Qualified Health Centers, supported through the Health Resources and Services Administration, serve many PHA residents and have made promotion of smoking cessation a top priority. The guidance that HUD has created to date emphasizes the value of partnerships between housing providers and local organizations (e.g. local health departments and clinics, and tobacco control organizations such as the American Lung Association) in making smoking cessation services available to residents.

    Commenters on the proposed rule provided a lengthy list of resources that they used to assist residents. HUD will make this information, where applicable, available to interested PHAs.

    Section 3 is a provision of the Housing and Urban Development Act of 1968 that ensures employment and other economic opportunities generated by HUD financial assistance are directed to low-income persons, particularly those receiving housing assistance. Section 3 requirements may be fulfilled to the extent residents are employed in providing cessation services, in accordance with 24 CFR part 135, provided that employment opportunities for cessation services are generated by the use of covered PIH assistance.

    Definitions

    Commenters asked HUD for expanded definitions of several key terms, particularly “smoking”. Several asked that HUD define the term broadly to capture a variety of dangerous products and not to limit the rule to “lit tobacco products” in order to be consistent with existing state and local standards.

    Other requests for definitions included definitions for “smoke,” “electronic smoking devices,” “hookahs,” “enclosed,” “indoor area,” and “partially enclosed.” Some commenters were concerned that allowing for partially enclosed designated smoking areas would run against current state indoor smoking bans. Commenters also asked that HUD change the phrase “interior common areas” in the space where smoking is banned to be “interior areas” to make it clearer that smoking is prohibited in all indoor areas.

    Commenters often provided examples from model or existing codes and standards for HUD to use as guides for many of these definitions.

    HUD Response: HUD does not define “smoking,” but rather “prohibited tobacco products.” HUD is restricting the use of prohibited tobacco products, including cigarettes, cigars, pipes, and waterpipes (hookahs). Because PHAs must ban the use of specific items, it is unnecessary to define what smoke is. In addition, this rule does not supersede state or local smoking bans, so if such laws prohibit the use of partially enclosed designated smoking areas, the PHAs would still be subject to those requirements.

    HUD has changed the phrase “interior common areas” to “interior areas.”

    Designated Smoking Areas (DSAs)

    Some commenters stated that the indoor ban was fine, but HUD should require PHAs to provide a reasonable DSA. Commenters wrote that any DSA should be sheltered from the weather, have shade and seating, and should be accessible to anyone with mobility issues and have appropriate safety features, such as lighting. Commenters stated that any DSA should be far enough away from buildings to prevent smoke drift, which some commenters specified as at least 25 or 50 feet from other smoke-free zones. Some stated that residents should have input on deciding whether or not to have a DSA or where any DSA should be located. Some asked that PHAs be required to sign memoranda of understanding with local police forces to clarify that using the DSA would not count as loitering.

    Commenters expressed concern that the cost of building and maintaining benches or other amenities in a DSA would be too expensive for PHAs. Some stated that HUD should provide the funding or that PHAs should seek funding from the tobacco industry to pay for them. Some also stated that smokers should be allowed to contribute money to pay for covered smoking areas.

    Some commenters stated that HUD should encourage outdoor smoke-free areas and discourage DSAs entirely, as having DSAs could raise concerns regarding reasonable accommodations and accessibility. Some commenters suggested that PHAs with DSAs evaluate their policies on a regular basis to determine if it would be appropriate to make the property 100 percent smoke-free. Commenters also stated that HUD should not encourage partially enclosed DSAs, as they can trap smoke, provide hidden areas for crime, and violate state clean air laws.

    HUD Response: HUD does not mandate DSAs. However, some PHAs have achieved better compliance with smoking bans in restricted areas when there is a designated location with seating. Also, the use of DSAs could potentially make implementation of the smoke-free policy easier because they demonstrate to a smoking resident how far he or she must move away from the building. If a PHA decides to implement a DSA, HUD recommends appropriate wellness and safety features, such as appropriate seating and shade. If a PHA chooses to designate a smoking area for residents, it must ensure that the area is accessible for persons with disabilities, in accordance with a PHA's obligations under section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and the Fair Housing Act. This may include a flat or paved pathway, ramp, and adequate lighting depending on the need and area selected. HUD encourages PHAs to include DSAs in future capital needs planning.

    Electronic Nicotine Delivery Systems (ENDS)

    Many commenters asked that HUD include ENDS in the list of prohibited tobacco products. These commenters pointed out that the aerosol emitted by the devices is not harmless, and the toxins in the aerosol are higher than in FDA-approved nicotine inhalers. Others stated that ENDS pose risks of fire or explosion due to their batteries or poisoning from the liquids. Commenters stated that ENDS also increases third-hand exposure to nicotine (nicotine that settles on surfaces within a building), and banning ENDS may help stop the increase of ENDS usage among teens.

    Commenters stated that ENDS are not devices approved for stopping smoking, and their use can undermine efforts to de-normalize smoking. Others commented that the use of ENDS can undermine enforcement efforts, either by making it appear that the policy is not taken seriously, or by causing confusion about whether it is ENDS or a cigarette being used.

    Some commenters supporting the ban of ENDS asked that if HUD does not include ENDS in the proposed rule, that HUD make it explicit that a PHA can choose to do so themselves. Others asked HUD to track and share research to help PHAs make the case for including ENDS in smoke-free policies.

    Other commenters objected to the inclusion of ENDS in the indoor smoking ban. Some stated that the science on the harm caused by ENDS is not settled and therefore there is no justification at this time for including them in the policy, because prohibiting ENDS does not advance the proposed rule's goals of improved health and savings on maintenance costs. Commenters stated that ENDS are an important tool in stopping smoking and allowing them would therefore help to soften the larger no-smoking policy, while adding flexibility to the proposed rule. Some commenters stated that the proposed rule does not contain enough justification to include ENDS in the policy and therefore, if HUD decides to include them, there should be another round of comments.

    Commenters also asked that if HUD includes ENDS in the final policy, HUD consider limiting the places ENDS are prohibited only to common areas. Some stated that enforcing ENDS would be more difficult than only enforcing a cigarette ban, because ENDS lacks some of the markers of cigarette smoke such as a smell.

    HUD Response: Research to date on ENDS is still developing and lacks clear consensus, in contrast with research on the effects of cigarettes and other tobacco products. Unlike with products that involve burning of substances, there is little evidence that ENDS significantly increases fire risks, and there is no conclusive evidence that the vapors emitted by ENDS cause damage to the units themselves. Therefore, prohibiting ENDS will not necessarily reduce the risk of catastrophic fires or maintenance costs for PHAs, and this rule does not prohibit the use of ENDS.

    However, PHAs may exercise their discretion to include a prohibition on ENDS in their individual smoke-free policies if they deem such a prohibition beneficial. In addition, if evidence in the future arises that banning ENDS will, for example, result in significant maintenance savings, HUD will reconsider including them in items that are prohibited inside public housing.

    Enforcement

    Many comments focused on how PHAs are to enforce smoke-free policies. Some commenters stated that enforcement would be impossible because PHAs would not be able to prove that residents were smoking or the exact origins of a smoke smell. Commenters asked for additional guidance on how to detect violations and expressed concern that enforcing policies across scattered sites or in non-business hours would be extremely difficult. Commenters also stated that HUD should provide additional guidance on who can report violations and that HUD should place the burden of proof of violations on the complaining party.

    Commenters also expressed concern about having a primary method of enforcement be reporting from tenants. Commenters stated that relying on residents to report will erode trust and increase tensions between residents, staff, and management. Some commenters stated that requiring residents to report violations would lead to additional confrontations with police. Commenters stated that residents should be able to report violations in a way that makes them feel safe. Some commenters stated that resident reporting will require additional mediation between tenants and that HUD should create a method of enforcement that does not rely on residents reporting each other, such as using routine maintenance inspections to look for evidence of smoking indoors.

    Some commenters asked for specific guidance on how PHAs are to enforce smoke-free policies, and asked for HUD to publish successful enforcement actions from agencies with smoke-free policies in place. Commenters expressed concern that some PHAs or managers would not enforce the smoke-free policies consistently, leading to liability for PHAs. To address such concerns, commenters suggested that HUD impose heavy fines on managers who do not enforce policies, conduct site visits to ensure enforcement, and provide information to residents on whom to contact if managers are not enforcing policies. Commenters also stated that the costs of enforcement will be equal to or greater than any savings on maintenance generated by smoke-free policies.

    Commenters also expressed concern about the use of eviction as an enforcement mechanism, stating that evictions do not help create strong communities. Commenters also wrote that increased evictions will increase homelessness and costs to PHAs. Commenters stated that it was unfair to subject children to homelessness from eviction for the actions of their parents, that it would be unfair to evict an entire family for the actions of one individual, or that it would be unfair to evict tenants for the actions of their guests. Commenters stated that relying solely on eviction sets up residents for failure and puts groups at the highest risk for discrimination in housing or with higher health risks at even greater risk of homelessness. Some stated that if families who are evicted as a result of this rule tend to fall into a protected class, there might be a disparate impact claim against the PHA or HUD.

    Some stated that evicting families for a legal activity would be impossible because courts would not uphold evictions, or even that local ordinances may make evictions for smoking illegal. Commenters suggested that the rule explicitly state that smoking in violation of the PHA's policy is an offense that can result in eviction in order to allow courts to enforce evictions.

    Commenters suggest that HUD require PHAs to take specific, progressive enforcement steps prior to allowing eviction, in particular focusing on education and cessation treatments.

    Others stated that the rule should minimize evictions, or eliminating evictions from enforcement options completely, perhaps using a system of fines, positive incentives, or cessation treatment instead. Commenters stated that the final rule language should specify that violation of a smoke-free policy is not a material or serious violation of the lease. Some commenters suggested that HUD consider structuring the smoke-free requirement like the community service requirement, where noncompliance mandates specific actions to allow a tenant to “cure” the violation and where PHAs do not renew leases instead of evicting tenants.

    HUD Response: HUD believes that allowing a PHA to enforce its smoke-free policy through lease enforcement actions is the best way to ensure compliance with such policies. Upon successful implementation, smoke-free policies should be enforced similar to other policies under lease enforcement procedures. HUD does not expect the enforcement of smoke-free policies to be significantly easier or more difficult than other unit-focused policies PHAs have established. Based on experiences of the PHAs that have already implemented smoke-free policies, when there is resident engagement in developing the plan and an effective plan for implementation, policy enforcement is less likely to lead to evictions. As written in this rule, the lease and appropriate amendment(s) will be the primary smoke-free policy enforcement mechanism. All residents must sign the amendment(s) as a condition of their continuing occupancy. PHAs will have local flexibility as to how the lease amendment process occurs during the 18-month implementation period after the final rule effective date. HUD has clarified that the adoption of a PHA smoke-free policy is likely to constitute a significant amendment or modification to the PHA Plan, which would require PHAs to conduct public meetings according to standard PHA amendment procedures. Therefore, PHAs are encouraged to obtain board approval when creating their individual smoke-free policies.

    HUD affords PHAs flexibility in designing policies on reporting of violations by other residents, in order to fit the local needs of the housing communities. However, a PHA must sufficiently enforce its smoke-free policy in accordance with the rule's standards, by taking action when it discovers a resident is violating the policy. PHAs must ensure due process when enforcing the lease. If a PHA pursues lease enforcement as a remedy, public housing residents retain their right to an informal and formal hearing before their tenancy is terminated. As currently written, the new regulations intentionally distinguish lease violations based on criminal behaviors from violations based on civil behaviors, and place smoke-free violations in the latter category to discourage overly aggressive enforcement approaches and decrease the potential of eviction and homelessness.

    Termination of assistance for a single incident of smoking, in violation of a smoke-free policy, is not grounds for eviction. Instead, HUD encourages a graduated enforcement approach that includes escalating warnings with documentation to the tenant file. HUD has not included enforcement provisions in this rulemaking because lease enforcement policies are typically at the discretion of PHAs, and it is appropriate for local agencies to ensure fairness and consistency with other policies. HUD also is not requiring any specific graduated enforcement procedure, because public housing leases are subject to different local and state procedural requirements that must be met prior to eviction. Best practices regarding smoke-free implementation and enforcement are available at http://portal.hud.gov/hudportal/HUD?src=/smokefreetoolkits1. HUD will provide additional guidance in the future with examples of graduated enforcement steps.

    This rule does not expressly authorize or prohibit imposing fines on non-complying PHA managers. Once the rule takes effect, HUD may use PHA certifications to verify that PHAs have implemented a smoke-free policy within the required timeframe. HUD may also use the periodic REAC inspections and OIG audits to help monitor and confirm whether the policy is being enforced. The PIH regulations at 24 CFR 903.25 state that to ensure that a PHA is in compliance with all policies, rules, and standards adopted in the PHA Plan approved by HUD, HUD shall, as it deems appropriate, respond to any complaint concerning PHA noncompliance with its plan. If HUD determines that a PHA is not in compliance with its plan, HUD will take whatever action it deems necessary and appropriate.

    Evaluation

    Commenters asked that HUD have some sort of plan in place to evaluate the effect of the proposed rule. Some stated that HUD should evaluate, after 1 or 2 years, the success of the rule in getting units smoke-free and whether there have been health benefits. Others stated that HUD should review how each PHA has implemented a smoke-free policy, including surveys to residents on how the policy is working and if improvements are needed. Some commenters stated that the evaluation should be of the PHAs themselves, including how they document violations and manage accommodation requests, how well PHAs comply with the requirements and adhere to “best practices”, and the PHAs' outcomes of the smoke-free policies. These evaluations could be done as part of periodic reviews of PHA performance in general.

    Other suggestions for evaluations focused on the effects of the rule itself. Some suggested that HUD should survey tenants to track smoking cessation progress. Others stated that HUD should evaluate support for the policies among tenants, numbers of complaints, health changes, costs, savings, and turnover and eviction as a result of the policies. Commenters stated that HUD should carefully keep track of the number of evictions due to smoke-free policies. Commenters suggested that HUD should study whether completely smoke-free grounds would be appropriate.

    Commenters stated that HUD could partner with other agencies for evaluation studies.

    HUD Response: HUD agrees that it is important to evaluate various aspects of the implementation of the rule by the PHAs, including the benefits on indoor air quality and resident health as well as the actual implementation process. Although HUD has identified and made available effective practices from housing providers that have implemented smoke-free policies, there is value in doing this using a more systematic process (e.g., see http://portal.hud.gov/hudportal/documents/huddoc?id=SFGuidanceManual.pdf). HUD is supporting research on the implementation of smoke-free policies in federally assisted multifamily properties through its Healthy Homes Technical Studies Grant Program. A goal of this research is to identify effective implementation practices as well as impacts on indoor air quality and smoking cessation among residents. HUD has also worked with the National Center for Health Statistics to match administrative data for residents of federally assisted housing (including public housing) with multiple years of data from the National Health Interview Survey. This is a cost effective way to track potential changes in the smoking behavior of residents over time (i.e., before and after the rule becomes effective). HUD is a member of a work group that includes federal partner agencies in order to explore opportunities for cooperative activities to evaluate the impact of the rule. HUD is also cooperating with researchers who are part of a university/philanthropy partnership planning to survey PHAs that have already implemented smoke-free policies, in order to capture lessons learned that will be valuable for PHAs that have not yet implemented smoke-free policies. This effort will include interviews of both management and residents.

    Expansion of Applicability of Rule

    Some commenters felt that it was unfair to only cover public housing with this proposed rule. Commenters felt that the covered properties should be expanded to include all multifamily dwelling units in the country, all rental and subsidized housing, mixed-finance developments, Section 8 vouchers, or all properties receiving HUD assistance.

    However, other commenters stated that HUD should never consider requiring homeless assistance programs to have a smoke-free policy. Some also stated that HUD should not expand the requirement beyond public housing.

    Commenters did have some questions about the applicability of the rule. Some asked about whether the rule applies to non-dwelling units leased to other entities. Others asked whether low-income housing on tribal lands would be covered. Commenters also asked how this rule would apply to public housing projects converting their assistance under the Rental Assistance Demonstration Program.

    HUD Response: The final rule does not apply to tribal housing, mixed-finance developments, or PHA properties that have converted to project-based rental assistance contracts under RAD. HUD will continue to promote voluntary adoption of smoke-free policies by all owners receiving project-based assistance and may consider expansion of requirements to additional housing assistance programs in the future. In addition, HUD will issue a solicitation of comments in the Federal Register to obtain feedback on the prospect of requiring smoke-free policies in other HUD-assisted properties. Absent regulations, private owners and PHAs can continue to use HUD's “Smoke-Free Housing Toolkit for Public Housing Authorities and Owners/Management Agents” (available at http://portal.hud.gov/hudportal/documents/huddoc?id=pdfowners.pdf) to help in implementation of smoke-free polices.

    Flexibility for PHAs

    Commenters objected to the mandate that PHAs create smoke-free policies, instead asking that it continue to be left up to the PHA's discretion. They stated that letting PHAs make the decision would allow them to decide where to allocate resources and best account for the needs of the residents and PHA. Other commenters simply asked that PHAs be allowed to craft policies they designed instead of having policies determined by HUD. Commenters also asked that small PHAs be given more flexibilities.

    Commenters specifically asked that PHAs be given flexibility with the implementation phase of smoke-free policies. Some asked for the ability to implement policies at a time of the year with pleasant weather to make compliance easier. Others asked for the ability to phase-in policies by buildings or properties instead of all at once; however, some commenters explicitly opposed phasing in the policy across buildings. Commenters also asked for a longer implementation period, even as much as 5 years.

    Another specific flexibility requested by commenters was for a PHA to establish buildings or scattered-site locations as designated smoking buildings, if physically separate from non-smoking buildings.

    Commenters also asked that PHAs with established smoke-free policies continue to keep the existing policies, even if the perimeter around buildings is less than 25 feet. These commenters stated that it would be extremely burdensome, costly, and confusing to change existing policies, and compliance with additional restrictions might impose additional costs, such as building shelters for smokers, that they have already decided are unnecessary. However, some commenters stated that PHAs should be required to conform to any policies that are stricter than what they may currently have in place.

    Some commenters also asked that HUD make it explicit that a PHA may adopt policies that are stricter than the ones required by HUD.

    Commenters also asked that HUD allow PHAs to have maximum budget flexibility during implementation to pay for up-front costs.

    HUD Response: HUD has been advocating for smoke-free housing since 2009 because the health benefits to residents are substantial, and the costs and benefits to PHAs are also compelling in terms of reduction in maintenance and unit turnover costs. HUD applauds the more than 600 PHAs that already have implemented policies in at least one building since HUD began promoting voluntary adoption of smoke-free housing policies. The rule's mandatory approach implements uniform standards and requirements which will greatly minimize the disproportionate exposure to SHS for public housing residents.

    The flexibility inherent in the rule allows PHAs to implement their smoke-free policies in a way that does not violate the standards established in the final rule. The final rule bans the use of prohibited tobacco products in all public housing living units, interior common areas, and all outdoor areas within 25 feet from public housing and administrative office buildings where public housing is located. The rule also gives PHAs the flexibility to limit smoking to DSAs, which may include partially enclosed structures, to accommodate residents who smoke.

    PHAs must exercise their discretion in a way that reasonably relates to the purpose of the rule, and PHAs face legal risk when imposing a standard that exceeds the scope of legal authority (e.g., is arbitrary and capricious). PHAs are encouraged to exercise their discretion and may adopt stricter smoke-free policies. This approach should always consider resident feedback prior to adopting stricter smoke-free policies.

    Budget flexibility in terms of combining operating, capital, or housing assistant payment funds is permitted to the extent otherwise provided under arrangements such as Moving to Work (MTW).

    Funding

    Commenters stated that HUD should provide funding for the implementation costs of this rule, specifically through increased Operating or Capital Fund allocations. Commenters wrote that without additional staff to help, the smoke-free policies cannot be successful. Commenters also asked for additional funding to remediate and repair any damage caused by residents who are currently smoking.

    HUD Response: The rule provides no additional financial assistance for policy implementation; however, HUD has already begun to mobilize our public health and private partners such as the Centers for Disease Control and Prevention, American Cancer Society, the American Lung Association and Environmental Protection Agency, among others, to support PHAs.

    Implementation

    Many commenters expressed concern that tenants be adequately involved in a PHA's implementation of the final rule when effective. Commenters stated that HUD should require specific engagement activities. They stated that these requirements should include multiple meetings with tenants to educate them on the policy, how to comply, and what assistance is available to them. Commenters stated that PHAs should use community advisory boards to address issues and tenant concerns during implementation. Commenters stated that HUD should require PHAs to engage their residents, particularly on health issues associated with smoking and SHS, prior to amending leases; some stated that engagement should be ongoing for a year prior to a PHA amending a lease.

    To ensure that residents are fully engaged from the beginning, some commenters stated that HUD should specify that implementing a smoke-free policy would require a significant amendment to the PHAs' plans. However, other commenters stated that PHAs with smoke-free policies in place should not have to make significant amendments.

    Commenters also suggested changes to the timeline for compliance with the final rule. Several stated that 18 months is not enough time for PHAs to have smoke-free policies in effect. Commenters stated that 18 months was too short a time period to adequately educate tenants and get their support, amend leases, and do other supporting tasks like constructing DSAs. Some asked for specific time periods, from 24 to 36 months to up to 3 years, while others asked for PHAs to be able to apply for more time. Commenters stated that allowing PHAs flexibility on the timeline for implementing the rule so that the PHAs could use the existing Annual Plan amendment process would save money and effort.

    Commenters alternatively asked that HUD allow for an implementation timeline in stages, allowing residents to participate voluntarily for the first 6 months, year, or 2 years of the policy before being subject to penalties.

    Some commenters, however, stated that 18 months was too much time, and stated that HUD should encourage PHAs to begin implementation as soon as possible after the final rule is effective, including providing cessation help and educational resources. Commenters suggested that PHAs should be able to implement smoke-free policies for new residents prior to that deadline, and some stated that HUD should require compliance within 6 months. Commenters asked if PHAs would be able to phase-in their properties during the 18-month period.

    HUD Response: HUD included in the proposed rule the 18-month timeframe after the final rule effective date for PHAs to enlist the involvement and support their resident councils, initiate cessation programs, post notices, and disseminate information to the residents, pursuant to PIH regulations and best practices among early smoke-free policy adopters. In the final rule, HUD has clarified that the adoption of a PHA smoke-free policy is likely to constitute a significant amendment or modification to the PHA Plan, which would require PHAs to conduct public meetings according to standard PHA amendment procedures. Therefore, PHAs are encouraged to obtain board approval when creating their individual smoke-free policies. HUD believes this approach will allow local organizations to pledge their support for the smoke-free policy and to support the mission of providing healthier housing for low-income residents.

    The PHA must consult with resident advisory boards to assist with and make recommendations for the PHA plan. Those recommendations must include input from PHA residents. With regard to the smoke-free policy, the PHA plan will list the PHA's rules, standards and policies that will govern maintenance and management of PHA operations. HUD believes that 18 months will provide PHAs sufficient time to conduct resident engagement and hold public meetings that are required when an amendment constitutes a significant change to the PHA plan.

    The final rule will become effective 60 days after publication in the Federal Register. Once the rule is effective, PHAs will then have 18 months to implement smoke-free policies. PHAs must incorporate the smoke-free policy into resident leases. The lease will continue to be the legally binding document between the PHA and the resident. Leases (including recertifications, automatic renewals, new leases, lease addendums and modifications) can be modified at any time by written agreement between the resident and the PHA. PHAs may provide a specific date that the policy will take effect. PIH regulations permit PHAs to modify rules and regulations to be incorporated by reference into the lease form, as long as the PHAs provide at least 30 days' notice to all affected residents (see 24 CFR 966.5), and allow resident feedback on the new lease language (see 24 CFR 966.3). PHAs must consider this feedback prior to making the changes.

    To amend individual resident leases based on the modified lease form adopted by the PHA, a PHA must notify a resident of the written revision to an existing lease 60 days before the lease revision is to take effect and specify a reasonable time period for the family to accept the offer (see 24 CFR 966.4(l)(2)(iii)(E)). PIH regulations also provide that leases are required to stipulate that the resident has an opportunity for a hearing on a grievance of any proposed adverse action against the resident (see 24 CFR 966.52(b)). However, PHA grievance procedures are not applicable to class grievances and cannot be used as a forum for initiating or negotiating policy changes, including smoke-free policy changes (see 24 CFR 966.51(b)).

    HUD strongly encourages PHAs to post signs referencing the new smoke-free policy. Signs must be accessible to all residents and visitors, and must be posted in multiple languages if appropriate for residents of the PHA, in accordance with HUD's current guidance on limited English proficiency. PHAs are not required to construct smoking shelters or DSAs.

    Leases

    Commenters stated that the smoke-free language in leases should include not only the policy, but also information on any available DSAs or cessation services.

    HUD Response: A public housing lease specifies the rights and responsibilities between the PHA and tenant. If a PHA chooses to develop one or more DSAs, PHAs are encouraged to note the availability and location of any DSAs in the lease. HUD also encourages PHAs to share this information using less formal communication methods (e.g. letters, flyers, seminars, etc.) to ensure residents are aware of the policy. The information must be presented in pertinent places in various languages to help residents understand the policy.

    Objections—Civil Rights

    Commenters objected to the idea behind the proposed rule, stating that prohibiting smoking in public housing is an invasion of civil rights because it would ban an individual's freedom to do something that is legal. Others stated that it was an invasion of smokers' privacy. Some commented that people should be able to smoke in their own homes and that a smoking ban is authoritarian and invasive.

    Commenters also objected to the proposed policy because it does not prohibit smoking in private homes and therefore unfairly punishes the poor and working class. Commenters stated that smoking bans demonize and dehumanize smokers and discriminate against smokers. Some stated that if HUD is banning smoking, HUD should also ban all things that cause harm or smell, such as pet dander or smelly food.

    HUD Response: HUD believes that focusing on public housing is appropriate, as HUD and our PHA partners have already made significant progress in this area. More than 600 PHAs have already implemented smoke-free policies in at least one of their buildings since HUD began promoting voluntary adoption of smoke-free housing policies in 2009. HUD is not using this policy as a punishment for any group of people. Instead, HUD believes this policy will benefit many residents especially vulnerable populations (e.g. children, elderly persons, and persons with disabilities). This rule will protect the health and well-being of public housing residents and PHA staff and is an opportunity to lower overall maintenance costs and reduce the risk of catastrophic fires. Smoke-free public housing helps HUD realize its mission of providing safe, decent and sanitary housing for vulnerable populations nationwide. Additionally, smoke-free policies are increasingly being adopted in market-rate rental housing and condominiums.

    In Constitutional jurisprudence, courts have found that smoke-free policies do not violate the Equal Protection Clause because there is no fundamental right to smoke,8 and the classification of a “smoker” does not infringe on a fundamental Constitutional right.9 In addition, the act of smoking is entitled to only minimal level of protection, and courts assess smoking-related Equal Protection claims under a rational basis standard of review 10 —meaning that those who challenge a smoke-free regulation bear the burden to prove that the regulation is not rationally related to a legitimate government interest.

    8Brashear v. Simms, 138 F. Supp. 2d 693, 694 (D. Md. 2001).

    9Fagan v. Axelrod, 550 N.Y.S. 2d 552, 560 (1990).

    10See McGinnis v. Royster, 410 U.S. 263 (1973); Giordano v. Conn. Valley Hosp., 588 F. Supp. 2d 306 (2008).

    Courts 11 have held that protecting persons from SHS is a valid use of the State's police power that furthers a legitimate government purpose.12 And, those courts considering Equal Protection challenges to smoking restrictions have concluded that the restrictions bear a reasonable relation to such legitimate state interests as: (1) Improving resident health and safety; (2) reducing fire hazards; (3) maintaining clean and sanitary conditions; and (4) reducing non-smoker complaints and threats of litigation.13

    11 The holdings referenced here are taken from jurisprudence on smoking prohibitions in public areas and in the state prison context.

    12See Fagan v. Axelrod, 550 N.Y.S.2d 552, 560 (N.Y. Sup. Ct. 1990).

    13See Chance v. Spears, 2009 U.S. Dist. LEXIS 110304.

    Objections—General

    Commenters stated that an indoor smoking ban would actually increase fires as people tried to hide their smoking and disposed of cigarettes improperly. Commenters also stated that they supported smoking bans in public places and near doors, but felt that smoking should still be permitted in an individual tenant's unit. Commenters suggested that instead of a smoking ban, PHAs could require a higher security deposit from smokers.

    Commenters also stated that given the number of individuals with mental health problems who rely on smoking, this rule would be unfair to that population. Commenters wrote that bans in individual units would make it harder for tenants with mental illnesses to maintain stable housing. Some objected to the rule because they stated that some individuals who smoke do so to avoid returning to prior addictions. Commenters stated that discouraging any part of the population from affordable housing programs is contrary to the mission of HUD and PHAs.

    Some commenters objected to the rule because they stated that the rule contradicts a recent notice from HUD that PHAs should slow evictions based on criminal history, while now encouraging evictions for legal activities. Other commenters stated that the rule contradicts Congressional direction to increase flexibility and reduce unnecessary regulatory burdens. Commenters also objected to the rule by stating that funding should be used for priorities other than enforcement of the rule, including evictions.

    HUD Response: This rule is an opportunity to lower overall maintenance costs and reduce the risk of catastrophic fires in properties while advancing the health of public housing residents and PHA staff. Smoking within a tenant's unit exposes other residents to SHS. As such, smoke-free public housing is fully aligned with HUD's mission of providing safe, decent and sanitary housing for vulnerable populations nationwide. HUD encourages all PHAs to work with all of their residents to ensure they fully understand the policy. In order to meet a successful 18-month implementation timeframe, HUD encourages community engagement and outreach so PHAs will be able to solicit support and involvement of their resident councils and tenants. Residents who smoke and comply with the smoke-free policy can continue their residency in public housing. During enforcement of their smoke-free housing policies, HUD expects PHAs to follow administrative grievance procedures. Where there are violations of the smoke-free policy, HUD encourages PHAs to use a graduated enforcement approach that includes written warnings for repeated policy violations before pursuing lease termination or eviction. HUD will provide additional guidance with examples of graduated enforcement steps.

    HUD emphasizes that this rule, unlike previous HUD guidance on smoking, is not optional or merely a recommendation. However, PHAs may not treat tenants who smoke punitively in their implementation of this regulation by, for example, requiring a higher security deposit from tenants who smoke. Residents can be charged for property damage that is beyond normal wear and tear, in accordance with 24 CFR 966.4(b)(2).

    Reasonable Accommodations

    Commenters asked for more information and further clarification on what PHAs could offer as a reasonable accommodation under the rule. Some expressed confusion on whether smokers were eligible for reasonable accommodations, and some commenters explained that the reasonable accommodation was not available to help with the smoking habit, but rather was intended to address the underlying disability that frustrates the tenant's ability to comply with the smoke-free policy. Commenters explained that individuals with mental health disabilities or cognitive or learning disabilities may have difficulties in understanding the new smoke-free policies or complying with traditional cessation treatments, and that any PHA not allowing reasonable accommodations for tenants with disabilities is not considering the whole picture.

    Others asked for specific lists of permissible accommodations or for best practices in providing reasonable accommodations. Some commenters requested that HUD explicitly state in the final rule that a PHA must grant appropriate requests for reasonable accommodations. Commenters also stated that HUD should take public comment on any future reasonable accommodation guidance.

    Some commenters stated that reasonable accommodations should not include the ability to smoke indoors. Commenters asked whether HUD would defend PHAs who do not allow indoor smoking as a reasonable accommodation. Some commenters stated that smoking in the tenant's unit should be allowable as a reasonable accommodation, particularly for the elderly in winter or individuals who are disabled and cannot leave their unit. Commenters have stated that smaller PHAs may not have accommodations to offer other than allowing smoking in a tenant's unit.

    Commenters offered other suggestions of permissible reasonable accommodations, including allowing the tenants to use ENDS in their unit, smoking closer to the building than the 25-foot barrier, additional time for compliance for those using cessation services, or moving smokers with mobility disabilities into units closer to elevators or on the ground floor. Commenters also stated that HUD should make it clear that smoking is not a bar to receiving assistance and should allow tenants who cannot comply to receive vouchers to move out of public housing.

    However, commenters also expressed concern about the reasonable accommodation process. Commenters shared concerns that relying on the reasonable accommodation process assumes all residents with disabilities know their rights, assumes at least some requests will be granted, and places all the burden on the residents with disabilities themselves. Others stated that a PHA may be unable to move residents, due to costs of moving or a low vacancy rate. Commenters suggested that HUD require that language advising residents of their right to request a reasonable accommodation be included in leases along with other smoke-free requirements.

    HUD Response: Under section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and the Fair Housing Act, PHAs are prohibited from discriminating on the basis of disability and must make reasonable accommodations in their rules, policies, practices, and services. A reasonable accommodation is a change, adaptation or modification to a policy, rule, program, service, practice, or workplace which will allow a qualified person with a disability to participate fully in a program, take advantage of a service, or perform a job. In order to show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual's disability. This individualized determination must be made on a case-by-case basis by the PHA. When a person with a disability requests an accommodation related to his or her disability, a recipient must make the accommodation unless the recipient can demonstrate that doing so would result in a fundamental alteration in the nature of its program or an undue financial and administrative burden.

    Often, a PHA's Admissions and Continued Occupancy Plan (ACOP) will include guidelines for submission consideration, but an individual with a disability is not required to use a specific format when requesting an accommodation. General guidance on the reasonable accommodation process can be found at http://go.usa.gov/cJBBC. HUD also issued reasonable accommodation guidance entitled, “Joint Statement of the Department of Housing and Urban Development and the Department of Justice on Reasonable Accommodations under the Fair Housing Act,” which can be found at http://www.hud.gov/offices/fheo/disabilities/_modifications_mar08.pdf. HUD has determined that additional, specific guidance on accommodations related to smoke-free public housing is unnecessary, given the case-by-case nature of these decisions.

    Research shows that SHS will intrude into other units even when there is mechanical ventilation or air cleaners are installed. HUD acknowledges that some persons, including persons with disabilities, may have additional challenges in quitting, but reiterates that this rule does not require persons who smoke to stop smoking; rather, they must perform the activity in allowable areas outside of the public housing facilities and other restricted areas.

    HUD's guidance, “Change is in the Air,” available at http://portal.hud.gov/hudportal//huddoc?id=smokefreeactionguide.pdf, provides examples of how PHAs have approached and managed smoke-free policies for residents with disabilities. Not all of these examples involve reasonable accommodations, but they demonstrate a range of options that PHAs can use to implement smoke-free policies. For instance, PHAs have allowed residents to move to the first floor or closer to an exit door, and provided designated smoking areas with an accessible walkway, cover, lighting, and seating.

    HUD continues to encourage PHAs to engage residents early in the development of the policy so that there is adequate time to consider reasonable accommodations requests they receive. Language advising residents of their right to request a reasonable accommodation should already be contained within the PHA's ACOP. Under this rule, HUD is not requiring that reasonable accommodation language be contained in the lease. Public housing residents who suspect they are victims of housing discrimination can call (800) 669-9777.

    The act of smoking itself is not a disability under the ADA. HUD encourages all PHAs to fully engage with their residents so they fully understand the policy. Smokers with behavioral health conditions may require individualized attention to ensure they understand the policy and available cessation resources, as well as reasonable accommodation request procedures.

    Scientific Basis for the Rule

    Some commenters were skeptical that there was adequate scientific justification for the rule and questioned whether SHS is dangerous. Commenters stated that the rule is merely part of a crusade against smokers.

    Other commenters stated that the ban on indoor smoking would be unnecessary if better construction, insulating electrical outlets or improving ventilation, were used in public housing.

    HUD Response: HUD relies on the conclusions of Federal agencies and other authoritative organizations regarding the health effects of exposure to SHS. Based on these conclusions, the scientific evidence for the adverse health effects of SHS exposure is compelling. In a 2006 report, the Surgeon General concluded that there is no risk-free level of exposure to SHS. In children, the U.S. Surgeon General concluded that SHS exposure can cause sudden infant death syndrome, and can also cause acute respiratory infections, middle ear infections and more severe asthma in children. In adults, the Surgeon General has concluded that SHS exposure causes heart disease, lung cancer, and stroke. In addition, SHS is designated as a known human carcinogen by the U.S. Environmental Protection Agency, the U.S. National Toxicology Program, and the International Agency for Research on Cancer.

    The Surgeon General also concluded in 2006 that “eliminating indoor smoking fully protects nonsmokers from exposure to SHS. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposure to secondhand smoke.” HUD acknowledges that the movement of SHS from a smoker's unit to other parts of a building can be partially reduced through improvements in ventilation systems and through the increased air sealing of units; however, these strategies cannot fully eliminate exposure. Increased air sealing could also have the disadvantage of increasing SHS exposures to non-smokers in the sealed units, and could increase the amount of SHS that settles on surfaces within the sealed units.

    Signs

    Commenters asked that HUD include requirements on no-smoking signs in the final rule. Commenters stated that HUD should require a minimum amount of signage, and others stated that any signs should be in all languages applicable to a given PHA.

    HUD Response: HUD strongly encourages PHAs to post signs referencing their smoke-free policy. These signs must be accessible to all residents, and must be posted in multiple languages if appropriate for residents of the PHA, in accordance with HUD's guidance on limited English proficiency.

    Scope of the Rule

    Commenters stated that the proposed rule does not go far enough in only banning tobacco smoking. They asked that HUD include other items in the ban, including all products creating smoke, such as non-tobacco cigarettes and scented candles and incense, or other things posing health risks such as fatty foods or alcohol.

    HUD Response: This rule bars the use of prohibited tobacco products indoors, and outdoors within 25 feet of any building. Prohibited tobacco products include waterpipes. HUD is focusing first on public housing because HUD already has significant progress to build upon, as many PHAs have voluntarily implemented smoke-free policies. HUD intends next to turn attention to other HUD-assisted housing. Although this rule curtails a behavior that public housing regulations previously allowed, instituting smoke-free public housing would ensure that public housing residents enjoy the confirmed and significant health benefits that many higher-income market-rate residents now enjoy and increasingly demand of the private housing market. As a practical matter, HUD also is focusing first on smoke-free public housing because, in public housing, HUD can more readily leverage the Federal government's direct financial investments and existing regulatory framework to promote broad-based, successful policy implementation than where housing depends on private owners and contracts. However, HUD will issue a solicitation of comments in the Federal Register to obtain feedback from owners and tenants on the prospect of requiring smoke-free policies in other HUD-assisted properties.

    Training

    Commenters asked that HUD provide specific support for training in the final rule, both for residents and for PHA staff on both the reasons for the rule and proper enforcement of no-smoking policies.

    HUD Response: HUD agrees that PHAs and residents will need training on the reasons for the rule and proper enforcement of smoke-free policies. HUD is coordinating with other federal agencies and non-governmental organizations on providing assistance to PHAs, as appropriate, in implementing smoke-free policies. HUD will provide training to PHAs in the form of video- and print-based materials, as well as in-person training for select PHAs. Training resources will be focused on geographic areas with the greatest need, including areas where few PHAs previously implemented smoke-free policies. Resident training should be provided by PHA staff.

    Waterpipes (Hookahs)

    Many commenters asked that HUD include waterpipes in the smoke-free policy. These commenters stated that they are still a fire hazard and the smoke gives off harmful elements like cigarette smoke. Some commenters stated that waterpipes pose a carbon monoxide hazard in addition to the other toxins. Commenters stated that hookah sessions frequently last longer than the time it takes to smoke a cigarette and that some experts believe the SHS from waterpipes may be more hazardous than that from cigarettes.

    Commenters asked that if HUD does not include waterpipes in the smoke-free policy standard, the final rule should be explicit that PHAs may do so themselves.

    Other commenters stated that HUD should not include waterpipes in the final rule, and noted that for some cultural groups, there is a cultural significance to smoking around a waterpipe that HUD should keep in mind.

    HUD Response: Waterpipes (hookahs) are smoking devices that use coal or charcoal to heat tobacco, and then draw the smoke through water and a hose to the user. HUD recognizes that the use of hookahs is fundamentally different from the use of cigarettes, cigars, or other handheld tobacco products. Hookahs are not held while in use, and therefore require a person to remain in one spot while using them. In addition, the lit coals, which can last for half an hour or longer, cannot be extinguished and therefore must be used or discarded, leading the users to spend longer time periods outdoors than users of other tobacco products. For many residents, there may not be a permissible way to use a hookah outside their homes. But for PHAs that establish DSAs, it may still be feasible for outdoor hookah smoking in those locations, especially if the DSA is covered, preventing precipitation from interfering with the lighting of the coals.

    Both the heating source and burning of tobacco are sources of contaminant emissions. HUD agrees with commenters that there is considerable evidence that the use of waterpipes results in the emission of contaminants that are similar to those identified in SHS from other tobacco products, including carbon monoxide, respirable particulate matter (PM2.5), nicotine and benzene. There is no evidence that the drawing of tobacco smoke through water in hookahs makes the smoke less hazardous. Furthermore, because hookah sessions generally extend for longer periods than required to smoke a cigarette or other tobacco products, they can result in higher concentrations of contaminants. Finally, the presence of lit charcoal poses a fire risk to the property. Several examples of hookahs causing serious fire damage have been seen in homes around the country.14 In addition, the World Health Organization 15 and the American Lung Association 16 recommend that hookahs should be subjected to the same regulations as cigarettes. Therefore, HUD has amended the final rule to state that waterpipes fall under the definition of a “prohibited tobacco product.”

    14 See, e.g., Raya Zimmerman, 5 Dogs Die in St. Paul House Fire Likely Started by Teen's Hookah, Pioneer Press, May 11, 2014, http://www.twincities.com/localnews/ci_25741957/5-dogs-die-st-paul-home-fire-woman; Jason Pohl, Mishandled hookah sparked May apartment fire, Coloradoan, July 26, 2015, http://www.coloradoan.com/story/news/2015/07/25/pfa-mishandled-hookah-sparked-may-apartment-fire/30670277/; and Erin Wencel, Hookah Starts Fire in North Fargo Basement, KVRR News, Nov. 26, 2015, http://www.kvrr.com/news/local-news/hookah-starts-fire-in-north-fargo-basement-no-injuries-in-wahpeton-housefire/36677270.

    15 World Health Organization, “Waterpipe Tobacco Smoking: Health Effects, Research Needs and Recommended Actions by Regulators,” (2005), available at http://www.who.int/tobacco/global_interaction/tobreg/Waterpipe%20recommendation_Final.pdf.

    16 American Lung Association, “An Emerging Deadly Trend: Waterpipe Tobacco Use,” (Feb. 2007), available at http://www.lungusa2.org/embargo/slati/Trendalert_Waterpipes.pdf.

    While the use of hookahs may be viewed as a significant cultural practice, this does not qualify a resident for exclusion from the policy. As previously noted, there is no fundamental right to smoke and the act of smoking is entitled to only a minimal level of protection under the Equal Protection Clause. Therefore, smoking a hookah, as a significant cultural practice, does not itself provide a reason for exclusion from the policy.

    Other Comments

    Commenters stated that no matter what, smoking should not be a bar to public housing tenancy, despite some statements by PHA directors that state they already discriminate against smokers.

    Commenters also wrote that HUD should state in the rule that the rule does not guarantee a smoke-free environment in order to avoid lawsuits from tenants with non-compliant neighbors.

    HUD Response: This rule is not to be interpreted as making smoking a bar to public housing tenancy. Prospective and current residents are free to smoke outdoors with the understanding that smoking is prohibited within a 25-foot perimeter of buildings and in accordance with the PHA's smoke-free policy. This rule does not guarantee a smoke-free environment; residents may still be exposed to SHS on public housing grounds, particularly outside the 25-foot smoke-free perimeter. HUD emphasizes that the smoke-free policy is intended to reduce financial costs for PHAs as well as improve indoor air quality for all residents.

    Responses to Questions

    As part of the proposed rule, HUD asked the public to share specific information, particularly from PHAs who have already implemented smoke-free policies and can share their experiences. HUD received a number of comments with past experiences and suggestions for best practices, and we appreciate all the input. The information commenters submitted has helped inform HUD as to changes in the final rule and in developing further guidance for PHAs on implementing and enforcing this final rule.

    V. Findings and Certifications Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this proposed rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). OMB determined that this rule was economically significant under the order. The docket file is available for public inspection in the Regulations Division, Office of General Counsel, U.S. Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. The Regulatory Impact Analysis (RIA) prepared for this rule is also available for public inspection in the Regulations Division and may be viewed online at www.regulations.gov, under the docket number above. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at (800) 877-8339.

    Information Collection Requirements

    The information collection requirements contained in this proposed rule have been submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2577-0226. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

    Impact on Small Entities

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule prohibits smoking of tobacco in all indoor areas of and within 25 feet of any public housing and administrative office buildings for all PHAs, regardless of size.

    There are 2334 “small” PHAs (defined as PHAs with fewer than 250 units), which make up 75 percent of the public housing stock across the country. Of this number, approximately 378 have already instituted a voluntary full or partial policy on indoor tobacco smoking.

    HUD anticipates that implementation of the policy will impose minimal additional costs, as creation of the smoke-free policy only requires amendment of leases and the PHA plan, both of which may be done as part of a PHA's normal course of business. Additionally, enforcement of the policy will add minimal incremental costs, as PHAs must already regularly inspect public housing units and enforce lease provisions. Any costs of this rule are mitigated by the fact that PHAs have up to 18 months to implement the policy, allowing for costs to be spread across that time period.

    While there are significant benefits to the smoke-free policy requirement, the majority of those benefits accrue to the public housing residents themselves, not to the PHAs. PHAs will realize monetary benefits due to reduced unit turnover costs and reduced fire and fire prevention costs, but these benefits are variable according to the populations of each PHA and the PHA's existing practices.

    Finally, this rule does not impose a disproportionate burden on small PHAs. The rule does not require a fixed expenditure; rather, all costs should be proportionate to the size of the PHA implementing and enforcing the smoke-free policy.

    Therefore, the undersigned certifies that this rule will not have a significant impact on a substantial number of small entities.

    Environmental Review

    A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations in 24 CFR part 50 that implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection during regular business hours in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339. The FONSI is also available to view online at www.regulations.gov.

    Executive Order 13132, Federalism

    Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments or is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments nor preempt state law within the meaning of the Executive Order.

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number for the Public Housing program is 14.872.

    List of Subjects 24 CFR Part 965

    Government procurement, Grant programs-housing and community development, Lead poisoning, Loan programs-housing and community development, Public housing, Reporting and recordkeeping requirements, Utilities.

    24 CFR Part 966

    Grant programs-housing and community development, Public housing, Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, HUD amends 24 CFR parts 965 and 966 as follows:

    PART 965—PHA-OWNED OR LEASED PROJECTS—GENERAL PROVISIONS 1. The authority citation for 24 CFR part 965 continues to read as follows: Authority:

    42 U.S.C. 1547, 1437a, 1437d, 1437g, and 3535(d). Subpart H is also issued under 42 U.S.C. 4821-4846.

    2. Add subpart G to read as follows: Subpart G—Smoke-Free Public Housing Sec. 965.651 Applicability. 965.653 Smoke-free public housing. 965.655 Implementation. Subpart G—Smoke-Free Public Housing
    § 965.651 Applicability.

    This subpart applies to public housing units, except for dwelling units in a mixed-finance project. Public housing is defined as low-income housing, and all necessary appurtenances (e.g., community facilities, public housing offices, day care centers, and laundry rooms) thereto, assisted under the U.S. Housing Act of 1937 (the 1937 Act), other than assistance under section 8 of the 1937 Act.

    § 965.653 Smoke-free public housing.

    (a) In general. PHAs must design and implement a policy prohibiting the use of prohibited tobacco products in all public housing living units and interior areas (including but not limited to hallways, rental and administrative offices, community centers, day care centers, laundry centers, and similar structures), as well as in outdoor areas within 25 feet from public housing and administrative office buildings (collectively, “restricted areas”) in which public housing is located.

    (b) Designated smoking areas. PHAs may limit smoking to designated smoking areas on the grounds of the public housing or administrative office buildings in order to accommodate residents who smoke. These areas must be outside of any restricted areas, as defined in paragraph (a) of this section, and may include partially enclosed structures. Alternatively, PHAs may choose to create additional smoke-free areas outside the restricted areas or to make their entire grounds smoke-free.

    (c) Prohibited tobacco products. A PHA's smoke-free policy must, at a minimum, ban the use of all prohibited tobacco products. Prohibited tobacco products are defined as:

    (1) Items that involve the ignition and burning of tobacco leaves, such as (but not limited to) cigarettes, cigars, and pipes.

    (2) To the extent not covered by paragraph (c)(1) of this section, waterpipes (hookahs).

    § 965.655 Implementation.

    (a) Amendments. PHAs are required to implement the requirements of this subpart by amending each of the following:

    (1) All applicable PHA plans, according to the provisions in 24 CFR part 903.

    (2) Tenant leases, according to the provisions of 24 CFR 966.4.

    (b) Deadline. All PHAs must be in full compliance, with effective policy amendments, by July 30, 2018.

    PART 966—PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE 3. The authority section for 24 CFR part 966 continues to read as follows: Authority:

    42 U.S.C. 1437d and 3535(d).

    4. In § 966.4, revise paragraphs (f)(12)(i) and (ii) to read as follows:
    § 966.4 Lease requirements.

    (f) * * *

    (12) * * *

    (i) To assure that no tenant, member of the tenant's household, or guest engages in:

    (A) Criminal activity. (1) Any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises by other residents;

    (2) Any drug-related criminal activity on or off the premises; or

    (B) Civil activity. For any units covered by 24 CFR part 965, subpart G, any smoking of prohibited tobacco products in restricted areas, as defined by 24 CFR 965.653(a), or in other outdoor areas that the PHA has designated as smoke-free.

    (ii) To assure that no other person under the tenant's control engages in:

    (A) Criminal activity. (1) Any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises by other residents;

    (2) Any drug-related criminal activity on the premises; or

    (B) Civil activity. For any units covered by 24 CFR part 965, subpart G, any smoking of prohibited tobacco products in restricted areas, as defined by 24 CFR 965.653(a), or in other outdoor areas that the PHA has designated as smoke-free.

    Dated: November 28, 2016. Julián Castro, Secretary.
    [FR Doc. 2016-28986 Filed 12-2-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 [TD 9799] RIN 1545-BN61 Tax Return Preparer Due Diligence Penalty Under Section 6695(g) AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final and temporary regulations.

    SUMMARY:

    This document contains temporary regulations that modify existing regulations related to the penalty under section 6695(g) of the Internal Revenue Code (Code) relating to tax return preparer due diligence. These temporary regulations implement recent law changes that expand the tax return preparer due diligence penalty under section 6695(g) so that it applies to the child tax credit (CTC), additional child tax credit (ACTC), and the American Opportunity Tax Credit (AOTC), in addition to the earned income credit (EIC). The temporary regulations affect tax return preparers. The substance of the temporary regulations is included in the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the Federal Register.

    DATES:

    Effective Date: These regulations are effective on December 5, 2016.

    Applicability Date: For dates of applicability, see § 1.6695-2T(e).

    FOR FURTHER INFORMATION CONTACT:

    Rachel L. Gregory, 202-317-6845 (not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Paperwork Reduction Act

    The collection of information contained in these temporary and final regulations is in §§ 1.6695-2(b) and 1.6695-2T(b) and is reported on Form 8867, “Paid Preparer's Due Diligence Checklist.” Responses to this collection of information are mandatory. The collection of information in current § 1.6695-2 was previously reviewed and approved under control number 1545-1570. Control number 1545-1570 was discontinued in 2014, as the burden for the collection of information contained in § 1.6695-2 is reflected in the burden on Form 8867 under control number 1545-1629.

    Background

    This document contains amendments to 26 CFR parts 1 and 602 under section 6695(g) of the Code, imposing a penalty on tax return preparers who fail to comply with the due diligence requirements imposed by the Secretary by regulations with respect to determining the eligibility for, or the amount of, the EIC. Section 6695(g) was added to the Code because Congress believed more thorough efforts by tax return preparers are important to improving EIC compliance. H.R. Rep. No. 105-148, 105th Cong. 1st Sess., p. 512 (June 24, 1997).

    Enacted by section 1085(a)(2) of the Taxpayer Relief Act of 1997, Public Law 105-34 (11 Stat. 788, 955 (1997)), and effective for taxable years beginning after December 31, 1996, section 6695(g) originally imposed a $100 penalty on an income tax return preparer who failed to meet the EIC due diligence requirements set forth in regulations prescribed by the Secretary. Section 8246 of the Small Business and Work Opportunity Tax Act of 2007, Public Law 110-28 (121 Stat. 112, 200 (2007)) amended the penalty to apply to all tax return preparers. Section 501(a) of the United States-Korea Free Trade Agreement Implementation Act, Public Law 112-41 (125 Stat. 428, 459 (2011)), amended section 6695(g) to increase the amount of the penalty to $500, effective for returns required to be filed after December 31, 2011. Section 208(c), Div. B of the Tax Increase Prevention Act of 2014, Public Law 113-295 (128 Stat. 4010, 4073 (2014)) (2014 Act), added section 6695(h), which indexes the penalty amount for inflation, effective for returns or claims for refund filed after December 31, 2014.

    Section 1.6695-2 implements section 6695(g) by imposing due diligence requirements on persons who are tax return preparers under section 7701(a)(36) with respect to determining eligibility for, or the amount of, the EIC. The due diligence requirements set forth in § 1.6695-2(b) are that the preparer must: (1) Complete and submit Form 8867, “Paid Preparer's Earned Income Credit Checklist;” (2) complete the Earned Income Credit Worksheet (Worksheet), as contained in the Form 1040 instructions or record the preparer's computation of the credit, including the method and information used to make the computation; (3) not know or have reason to know that any information used by the preparer in determining eligibility for, and the amount of, the EIC is incorrect and make reasonable inquiries when required, documenting those inquiries and responses contemporaneously (knowledge requirement); and (4) retain, for three years from the applicable date, the Form 8867, the Worksheet (or alternative records), and the record of how and when the information used to determine eligibility for, and the amount of, the EIC was obtained by the preparer, including the identity of any person furnishing information and a copy of any document relied on by the preparer.

    To comply with the knowledge requirement under § 1.6695-2(b)(3), the tax return preparer may not ignore the implications of information furnished to, or known by, the tax return preparer, and must make reasonable inquiries if the information furnished to the tax return preparer appears to be incorrect, inconsistent, or incomplete. Examples in § 1.6695-2(b)(3)(ii) illustrate this requirement. This knowledge requirement is consistent with the verification requirement imposed on all tax return preparers with respect to preparation of any tax return or claim for refund under the accuracy-related standards set forth in § 1.6694-1(e).

    A tax return preparer is required to submit the Form 8867 to the IRS when the preparer electronically files the tax return. If a tax return preparer required to complete the Form 8867 is not electronically filing the taxpayer's return with the IRS, § 1.6695-2(b)(1) provides rules for submission of the form. If the tax return preparer required to complete the Form 8867 is not the signing tax return preparer, the preparer satisfies the submission requirement by providing a copy of the completed Form 8867 to the signing tax return preparer. If the tax return preparer required to complete the Form 8867 is the signing tax return preparer but the taxpayer is not electronically filing the return, the preparer must provide a copy of the completed Form 8867 to the taxpayer to be attached to the return being filed with the IRS.

    Section 1.6695-2(c) provides that a firm that employs a tax return preparer subject to a penalty under section 6695(g) is also subject to a penalty if certain conditions apply. Under this rule, a firm will be subject to a penalty if and only if one or more members of principal management (or principal officers) of the firm or branch participated in, or prior to the time the return was filed, knew of the failure to comply with the due diligence requirements; the firm failed to establish reasonable and appropriate procedures to ensure compliance with the due diligence requirements; or, through willfulness, recklessness, or gross indifference (including ignoring facts that would lead a person of reasonable prudence and competence to investigate or ascertain) the firm disregarded its own reasonable and appropriate compliance procedures. A firm subject to a section 6695(g) penalty under this section is not eligible for the exception to the penalty in § 1.6695-2(d). Under this exception, the penalty will not be applied if the tax return preparer can demonstrate to the satisfaction of the IRS that, considering all of the facts and circumstances, the tax return preparer's normal office procedures are reasonably designed and routinely followed to ensure compliance with the due diligence requirements, and the failure to meet the due diligence requirements with respect to the particular tax return or claim for refund was isolated and inadvertent.

    Section 207, Div. Q of the Protecting Americans from Tax Hikes Act of 2015, Public Law 114-113 (129 Stat. 2242, 3082 (2015)) (PATH Act) amended section 6695(g) by expanding the scope of the due diligence requirements to also include claims of the CTC/ACTC under section 24 and the AOTC under section 25A(a)(1), effective for taxable years beginning after December 31, 2015.

    These temporary regulations reflect the changes made to section 6695(g) by the PATH Act by expanding the due diligence requirements to the CTC/ACTC and the AOTC. These temporary regulations also conform the regulation to the 2014 Act, reflecting that the penalty is to be adjusted for inflation.

    Explanation of Provisions

    The temporary regulations amend § 1.6695-2 to implement the changes made by the PATH Act that extend the preparer due diligence requirements to returns or claims for refund including claims of the CTC/ACTC and/or AOTC in addition to the EIC. As a result of these changes, one return or claim for refund may contain claims for more than one credit subject to the due diligence requirements. Pursuant to the statute, each failure to comply with the due diligence requirements set forth in regulations prescribed by the Secretary results in a penalty. The section 6695(g) requirements apply to each credit claimed, meaning more than one penalty could apply to a single return or claim for refund. The temporary regulations provide examples to show how multiple penalties could apply when one return or claim for refund is filed.

    The Form 8867 has been revised for the 2016 tax year and is a single checklist to be used for all applicable credits (EIC, CTC/ACTC, and/or AOTC) on the return or claim for refund subject to the section 6695(g) due diligence requirements. The Form 8867 was streamlined to eliminate unnecessary redundancy with other forms and schedules. These changes were intended to reduce burden while increasing the utility of the Form 8867 as a checklist for tax return preparers to more accurately determine taxpayer eligibility for credits, thereby reducing errors and increasing compliance by preparers and taxpayers. The temporary regulations clarify § 1.6695-2(b)(1)(ii) to illustrate that the completion of Form 8867 can be based on information provided by the taxpayer to the preparer or otherwise reasonably obtained or previously known by the preparer.

    The examples provided in § 1.6695-2(b)(3)(ii) have been updated to provide more insight into when a tax return preparer has satisfied the due diligence knowledge requirement, including for purposes of the CTC and AOTC. The updates to the examples in § 1.6695-2T(b)(3)(ii) illustrate that the knowledge requirement for purposes of due diligence can be satisfied in conjunction with a tax return preparer's information-gathering activities done for the purpose of accurately completing other aspects of a tax return or claim for refund. New examples, Example 2 and Example 4, have also been added to illustrate that in certain circumstances a tax return preparer may satisfy the knowledge requirement based on existing knowledge without having to make additional reasonable inquiries. Another new example, Example 7, provides an example of due diligence for purposes of the AOTC.

    Section 1.6695-2(a) is amended by the temporary regulations to reflect the changes made by section 208(c) of the 2014 Act, requiring the IRS to index the penalty for inflation for returns or claims for refund filed after December 31, 2014. In addition, § 1.6695-2T(c)(3) clarifies the parenthetical therein by removing the words “or ascertained.”

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. For applicability of the Regulatory Flexibility Act, please refer to the cross-reference notice of proposed rulemaking published elsewhere in this issue of the Federal Register. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact on small businesses.

    Drafting Information

    The principal author of this regulation is Rachel L. Gregory, Office of the Associate Chief Counsel (Procedure & Administration).

    List of Subjects 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    26 CFR Part 602

    Reporting and recordkeeping requirements.

    Adoption of Amendments to the Regulations

    Accordingly, 26 CFR parts 1 and 602 are amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding a new entry in numerical order to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Section 1.6695-2T is also issued under 26 U.S.C. 6695(g).

    Par. 2. Section 1.6695-2 is amended by revising the section heading and paragraphs (a), (b)(1)(i) introductory text, (b)(1)(ii), (b)(2), (b)(3)(i) and (ii), (b)(4)(i)(B) and (C), and (c)(3) to read as follows:
    § 1.6695-2 Tax return preparer due diligence requirements for certain credits.

    (a) [Reserved]. For further guidance regarding the penalty for failure to meet due diligence requirements with respect to certain credits, see § 1.6695-2T(a).

    (b) * * *

    (1) * * *

    (i) [Reserved]. For further guidance regarding the completion of Form 8867, see § 1.6695-2T(b)(1)(i).

    (ii) [Reserved]. For further guidance regarding the information used to complete the Form 8867, see 1.6695-2T(b)(1)(ii).

    (2) [Reserved]. For further guidance regarding computation, see § 1.6695-2T(b)(2).

    (3) * * *

    (i) [Reserved]. For further guidance regarding the knowledge requirement, see § 1.6695-2T(b)(3)(i).

    (ii) [Reserved]. For current examples, see § 1.6695-2T(b)(3)(ii).

    (4) * * *

    (i) * * *

    (B) [Reserved]. For further guidance on the retention of records, see § 1.6695-2T(b)(4)(i)(B).

    (C) [Reserved]. For further guidance on the retention of records, see § 1.6695-2T(b)(4)(i)(C).

    (c) * * *

    (3) [Reserved]. For further guidance on the special rule for firms, see § 1.6695-2T(c)(3).

    Par. 3. Section 1.6695-2T is added to read as follows:
    § 1.6695-2T Tax return preparer due diligence requirements for certain credits (Temporary).

    (a) Penalty for failure to meet due diligence requirements—(1) In general. A person who is a tax return preparer (as defined in section 7701(a)(36)) of a tax return or claim for refund under the Internal Revenue Code with respect to determining the eligibility for, or the amount of, the child tax credit (CTC) and additional child tax credit (ACTC) under section 24, the American opportunity tax credit (AOTC) under section 25A(i), or the earned income credit (EIC) under section 32 and who fails to satisfy the due diligence requirements of paragraph (b) of this section will be subject to a penalty as prescribed in section 6695(g) (indexed for inflation under section 6695(h)) for each failure. A separate penalty applies with respect to each credit claimed on a return or claim for refund for which the due diligence requirements of this section are not satisfied and for which the exception to penalty provided by paragraph (d) of this section does not apply.

    (2) Examples. The provisions of paragraph (a)(1) of this section are illustrated by the following examples:

    Example 1.

    Preparer A prepares a federal income tax return for a taxpayer claiming the CTC and the AOTC. Preparer A did not meet the due diligence requirements under this section with respect to the CTC or the AOTC claimed on the taxpayer's return. Unless the exception to penalty provided by paragraph (d) of this section applies, Preparer A is subject to two penalties under section 6695(g): One for failure to meet the due diligence requirements for the CTC and a second penalty for failure to meet the due diligence requirements for the AOTC.

    Example 2.

    Preparer B prepares a federal income tax return for a taxpayer claiming the CTC and the AOTC. Preparer B did not meet the due diligence requirements under this section with respect to the CTC claimed on the taxpayer's return, but Preparer B did meet the due diligence requirements under this section with respect to the AOTC claimed on the taxpayer's return. Unless the exception to penalty provided by paragraph (d) of this section applies, Preparer B is subject to one penalty under section 6695(g) for the failure to meet the due diligence requirements for the CTC. Preparer B is not subject to a penalty under section 6695(g) for failure to meet the due diligence requirements for the AOTC.

    (b) [Reserved]. For further guidance, see § 1.6695-2(b).

    (1) Completion and submission of Form 8867. (i) The tax return preparer must complete Form 8867, “Paid Preparer's Due Diligence Checklist,” or such other form and such other information as may be prescribed by the Internal Revenue Service (IRS), and—

    (A) through (C) [Reserved]. For further guidance, see § 1.6695-2(b)(1)(i)(A) through (C).

    (ii) The tax return preparer's completion of Form 8867 must be based on information provided by the taxpayer to the tax return preparer or otherwise reasonably obtained or known by the tax return preparer.

    (2) Computation of credit or credits. (i) When computing the amount of a credit described in paragraph (a) of this section to be claimed on a return or claim for refund, the tax return preparer must either—

    (A) Complete the worksheet in the Form 1040, 1040A, 1040EZ, and/or Form 8863 instructions or such other form including such other information as may be prescribed by the IRS applicable to each credit described in paragraph (a) of this section claimed on the return or claim for refund; or

    (B) Otherwise record in one or more documents in the tax return preparer's paper or electronic files the tax return preparer's computation of the credit or credits claimed on the return or claim for refund, including the method and information used to make the computations.

    (ii) The tax return preparer's completion of an applicable worksheet described in paragraph (b)(2)(i)(A) of this section (or other record of the tax return preparer's computation of the credit or credits permitted under paragraph (b)(2)(i)(B) of this section) must be based on information provided by the taxpayer to the tax return preparer or otherwise reasonably obtained or known by the tax return preparer.

    (3) Knowledge—(i) In general. The tax return preparer must not know, or have reason to know, that any information used by the tax return preparer in determining the taxpayer's eligibility for, or the amount of, any credit described in paragraph (a) of this section and claimed on the return or claim for refund is incorrect. The tax return preparer may not ignore the implications of information furnished to, or known by, the tax return preparer, and must make reasonable inquiries if a reasonable and well-informed tax return preparer knowledgeable in the law would conclude that the information furnished to the tax return preparer appears to be incorrect, inconsistent, or incomplete. The tax return preparer must also contemporaneously document in the files any inquiries made and the responses to those inquiries.

    (ii) Examples. The provisions of paragraph (b)(3)(i) of this section are illustrated by the following examples:

    Example 1.

    In 2018, Q, a 22 year-old taxpayer, engages Preparer C to prepare Q's 2017 federal income tax return. Q completes Preparer C's standard intake questionnaire and states that she has never been married and has two sons, ages 10 and 11. Based on the intake sheet and other information that Q provides, including information that shows that the boys lived with Q throughout 2017, Preparer C believes that Q may be eligible to claim each boy as a qualifying child for purposes of the EIC and the CTC. However, Q provides no information to Preparer C, and Preparer C does not have any information from other sources, to verify the relationship between Q and the boys. To meet the knowledge requirement in paragraph (b)(3) of this section, Preparer C must make reasonable inquiries to determine whether each boy is a qualifying child of Q for purposes of the EIC and the CTC, including reasonable inquiries to verify Q's relationship to the boys, and Preparer C must contemporaneously document these inquiries and the responses.

    Example 2.

    Assume the same facts as in Example 1 of this paragraph (b)(3)(ii). In addition, as part of preparing Q's 2017 federal income tax return, Preparer C made sufficient reasonable inquiries to verify that the boys were Q's legally adopted children. In 2019, Q engages Preparer C to prepare her 2018 federal income tax return. When preparing Q's 2018 federal income tax return, Preparer C is not required to make additional inquiries to determine the boys relationship to Q for purposes of the knowledge requirement in paragraph (b)(3) of this section.

    Example 3.

    In 2018, R, an 18 year-old taxpayer, engages Preparer D to prepare R's 2017 federal income tax return. R completes Preparer D's standard intake questionnaire and states that she has never been married, has one child, an infant, and that she and her infant lived with R's parents during part of the 2017 tax year. R also provides Preparer D with a Form W-2 showing that she earned $10,000 during 2017. R provides no other documents or information showing that R earned any other income during the tax year. Based on the intake sheet and other information that R provides, Preparer D believes that R may be eligible to claim the infant as a qualifying child for the EIC and the CTC. To meet the knowledge requirement in paragraph (b)(3) of this section, Preparer D must make reasonable inquiries to determine whether R is eligible to claim these credits, including reasonable inquiries to verify that R is not a qualifying child of her parents (which would make R ineligible to claim the EIC) or a dependent of her parents (which would make R ineligible to claim the CTC), and Preparer D must contemporaneously document these inquiries and the responses.

    Example 4.

    The facts are the same as the facts in Example 3 of this paragraph (b)(3)(ii). In addition, Preparer D previously prepared the 2017 joint federal income tax return for R's parents. Based on information provided by R's parents, Preparer D has determined that R is not eligible to be claimed as a dependent or as a qualifying child for purposes of the EIC or CTC on R's parents' return. Therefore, for purposes of the knowledge requirement in paragraph (b)(3) of this section, Preparer D is not required to make additional inquiries to determine that R is not her parents' qualifying child or dependent.

    Example 5.

    In 2018, S engages Preparer E to prepare his 2017 federal income tax return. During Preparer E's standard intake interview, S states that he has never been married and his niece and nephew lived with him for part of the 2017 tax year. Preparer E believes S may be eligible to claim each of these children as a qualifying child for purposes of the EIC and the CTC. To meet the knowledge requirement in paragraph (b)(3) of this section, Preparer E must make reasonable inquiries to determine whether each child is a qualifying child for purposes of the EIC and the CTC, including reasonable inquiries about the children's parents and the children's residency, and Preparer E must contemporaneously document these inquiries and the responses.

    Example 6.

    W engages Preparer F to prepare her federal income tax return. During Preparer F's standard intake interview, W states that she is 50 years old, has never been married, and has no children. W further states to Preparer F that during the tax year she was self-employed, earned $10,000 from her business, and had no business expenses or other income. Preparer F believes W may be eligible for the EIC. To meet the knowledge requirement in paragraph (b)(3) of this section, Preparer F must make reasonable inquiries to determine whether W is eligible for the EIC, including reasonable inquiries to determine whether W's business income and expenses are correct, and Preparer F must contemporaneously document these inquiries and the responses.

    Example 7.

    Y, who is 32 years old, engages Preparer G to prepare his federal income tax return. Y completes Preparer G's standard intake questionnaire and states that he has never been married. As part of Preparer G's client intake process, Y provides Preparer G with a copy of the Form 1098-T Y received showing that University M billed $4,000 of qualified tuition and related expenses for Y's enrollment or attendance at the university and that Y was at least a half-time undergraduate student. Preparer G believes that Y may be eligible for the AOTC. To meet the knowledge requirements in paragraph (b)(3) of this section, Preparer G must make reasonable inquiries to determine whether Y is eligible for the AOTC, as Form 1098-T does not contain all the information needed to determine eligibility for the AOTC or to calculate the amount of the credit if Y is eligible, and contemporaneously document these inquiries and the responses.

    (4) Retention of records. (i) [Reserved]. For further guidance, see § 1.6695-2(b)(4)(i).

    (A) [Reserved]. For further guidance, see § 1.6695-2(b)(4)(i)(A).

    (B) A copy of each completed worksheet required under paragraph (b)(2)(i)(A) of this section (or other record of the tax return preparer's computation permitted under paragraph (b)(2)(i)(B) of this section); and

    (C) A record of how and when the information used to complete Form 8867 and the applicable worksheets required under paragraph (b)(2)(i)(A) of this section (or other record of the tax return preparer's computation permitted under paragraph (b)(2)(i)(B) of this section) was obtained by the tax return preparer, including the identity of any person furnishing the information, as well as a copy of any document that was provided by the taxpayer and on which the tax return preparer relied to complete Form 8867 and/or an applicable worksheet required under paragraph (b)(2)(i)(A) of this section (or other record of the tax return preparer's computation permitted under paragraph (b)(2)(i)(B) of this section).

    (ii) through (iii) [Reserved]. For further guidance, see § 1.6695-2(b)(4)(ii) through (iii).

    (c) [Reserved]. For further guidance, see § 1.6695-2(c).

    (1) through (2) [Reserved]. For further guidance, see § 1.6695-2(c)(1) through (2).

    (3) The firm disregarded its reasonable and appropriate compliance procedures through willfulness, recklessness, or gross indifference (including ignoring facts that would lead a person of reasonable prudence and competence to investigate) in the preparation of the tax return or claim for refund with respect to which the penalty is imposed.

    (d) [Reserved]. For further guidance, see § 1.6695-2(d).

    (e) Applicability date. This section applies to tax returns and claims for refund prepared on or after December 5, 2016 with respect to tax years beginning after December 31, 2015. For returns and claims for refund prepared before December 5, 2016 with respect to tax years beginning before January 1, 2016, the rules that apply are contained in § 1.6695-2 in effect prior to December 5, 2016. (See 26 CFR part 1 revised as of April 2016).

    (f) Expiration date. This section will expire on December 5, 2019.

    PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
    Par. 4. The authority citation for part 602 continues to read as follows: Authority:

    26 U.S.C. 7805.

    § 602.101 [Amended]
    Par. 5. In § 602.101, paragraph (b) is amended by removing the entry for § 1.6695-2 from the table. John M. Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: November 21, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
    [FR Doc. 2016-28993 Filed 12-2-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 208 [Docket ID: DOD-2013-OS-0021] RIN 0790-AJ01 National Security Education Program (NSEP) and NSEP Service Agreement AGENCY:

    Under Secretary of Defense for Personnel and Readiness, DoD.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule implements the responsibilities of the Secretary of Defense for administering the National Security Education Program (NSEP) and explains the responsibilities of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) for policy and funding oversight for NSEP. It discusses requirements for administering and executing the NSEP service agreement and; and assigns oversight of NSEP to the Defense Language and National Security Education Office (DLNSEO).

    DATES:

    This final rule is effective on January 4, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Alison Patz, 571-256-0771.

    SUPPLEMENTARY INFORMATION:

    On November 9, 2015, the Department of Defense published a proposed rule titled, “National Security Education Program (NSEP) and NSEP Service Agreement,” (80 FR 69166-69171) for a 60-day public comment period. The public comment period closed on January 8, 2016. No public comments were received.

    After the 60-day public comment period for the proposed rule, minor administrative edits were made to provide clarity or remove outdated, unnecessary, or confusing language in the regulatory text due to an internal DoD re-organization. Offices and symbols have been updated to reflect the most current organizational structure.

    Background

    The David L. Boren National Security Education Act of 1991 (Title VIII, Pub. L. 102-183), as amended, codified at 50 U.S.C. 1901 et seq. (NSEA), mandated that the Secretary of Defense create and sustain a program to award scholarships to U.S. undergraduate students, fellowships to U.S. graduate students, and grants to U.S. institutions of higher education.

    The NSEP is authorized through 50 U.S.C. 1901-1912 to award scholarships, fellowships, and grants to institutions of higher education in order to increase the quantity, diversity, and quality of the teaching and learning of subjects in the fields of foreign languages, area studies, counterproliferation studies, and other international fields that are critical to the Nation's interest, as well as to produce an increased pool of applicants for working the departments and agencies of the United States Government with national security responsibilities.

    NSEP oversees nine national security language and culture initiatives designed to attract, recruit, and train a future federal workforce skilled in languages and cultures to work across all agencies involved in national security. These initiatives support professional proficiency language training at U.S. colleges and universities, as well as support students to study overseas in regions critical to U.S. national security through scholarships and fellowships.

    The final rule outlines requirements applicable to the NSEP office and NSEP award recipients. This includes information about the NSEP service agreement, which award recipients must adhere to as a condition of award. In exchange for support, NSEP awardees must work in qualifying national security positions in the U.S. federal government for at least one year.

    Benefits

    NSEP, as outlined in the David L. Boren National Security Education Act of 1991, oversees multiple critical initiatives. All of NSEP's programs are designed to complement one another, ensuring that the lessons learned in one program inform the approaches of the others. Congress specifically—and uniquely—structured NSEP to focus on the combined issues of language proficiency, national security, and the needs of the federal workforce.

    NSEA outlines five major purposes for NSEP, namely:

    • To provide the necessary resources, accountability, and flexibility to meet the national security education needs of the United States, especially as such needs change over time;

    • To increase the quantity, diversity, and quality of the teaching and learning of subjects in the fields of foreign languages, area studies, counterproliferation studies, and other international fields that are critical to the nation's interest;

    • To produce an increased pool of applicants to work in the departments and agencies of the United States government with national security responsibilities;

    • To expand, in conjunction with other federal programs, the international experience, knowledge base, and perspectives on which the United States citizenry, government employees, and leaders rely; and

    • To permit the federal government to advocate on behalf of international education.

    As a result, NSEP is the only federally-funded effort focused on the combined issues of language proficiency, national security, and the needs of the federal workforce.

    • Boren Scholarships are awarded to U.S. undergraduates for up to one academic year of overseas study of languages and cultures critical to national security. Boren Scholars demonstrate their merit for an award in part by agreeing to fulfill a one year (minimum) service commitment to the U.S. government. NSEP awards approximately 150 Boren Scholarships annually.

    • Boren Fellowships are awarded for up to two years to U.S. graduate students who develop independent projects that combine study of language and culture in areas critical to national security. Boren Fellows demonstrate their merit for an award in part by agreeing to fulfill a one year (minimum) service commitment to the U.S. government. NSEP awards approximately 100 Boren Fellowships annually.

    • The Language Flagship supports students to achieve superior-level proficiency in critical languages including Arabic, Chinese, Hindi Urdu, Korean, Persian, Portuguese, Russian, Swahili, and Turkish. Flagship students combine language study with a major discipline of their choice and complete a year-long overseas program that includes intensive language study, direct enrollment in a local university, and a professional internship experience. In addition, The Language Flagship awards grants to U.S. universities recognized as leaders in the field of language education and supports new concepts in language education. More than 2,000 U.S. undergraduate students participate annually in The Language Flagship's programs, which are based at more than 20 U.S. institutions of higher education and multiple universities overseas.

    • The Language Flagship also manages a Flagship/ROTC initiative, through which ROTC cadets and midshipmen are supported at Flagship institutions, thus building a cadre of students with professional-level proficiency and commitment to serve in the U.S. armed forces.

    • The English for Heritage Language Speakers (EHLS) program provides professional English language instruction for U.S. citizens who are native speakers of critical languages. Participants receive scholarships to the EHLS program at Georgetown University, which provides eight months of instruction. This training allows participants to achieve professional-level proficiency in the English language and prepares them for key federal job opportunities. NSEP awards approximately 20 EHLS Scholarships annually.

    • The African Flagship Languages Initiative (AFLI) is a Flagship language program, designed in cooperation with Boren Scholarships and Fellowships, to improve proficiency outcomes in a number of targeted African languages. The Intelligence Authorization Act for Fiscal Year 2010, Section 314 (Pub. L. 111-259) initially directed the establishment of a pilot program to build language capabilities in areas critical to U.S. national security interests, but where insufficient instructional infrastructure currently exists domestically. Based on the successes of its many critical language initiatives, NSEP was designated to spearhead the effort. All AFLI award recipients are funded through either a Boren Scholarship or Boren Fellowship. Participants complete eight weeks of domestic language study at the University of Florida prior to departure overseas, followed by intensive, semester-long study internationally. AFLI's current language offerings include Akan/Twi, French (for Senegal), Hausa, Portuguese (for Mozambique), Swahili, Wolof, and Zulu.

    • The National Language Service Corps (NLSC) is a civilian corps of volunteers with certified proficiency in foreign languages. Its purpose is to support DoD or other U.S. departments or agencies in need of foreign language services, including surge or emergency requirements. NLSC capabilities include language support for interpretation, translation, analysis, training, logistics activities, and emergency relief activities. Members generally possess professional-level proficiency in a foreign language and in English, and may have clearances or may be clearable.

    • Project GO provides grants to U.S. institutions of higher education with large ROTC student enrollments, including the Senior Military Colleges. In turn, these institutions provide language and culture training to ROTC students from across the nation, funding domestic and overseas ROTC language programs and scholarships. To accomplish Project GO's mission, NSEP closely works with Army, Air Force, and Navy ROTC Headquarters, as well as with U.S. institutions of higher education. To date, institutions participating in the program have supported critical language study for over 3,000 ROTC students nationwide. More than 20 domestic institutions host Project GO programs serving ROTC students from across the country.

    • Language Training Centers (LTC) are a collaborative initiative to develop expertise in critical languages, cultures and strategic regions for DoD personnel. Section 529(e) of the National Defense Authorization Act for Fiscal Year 2010 authorized the establishment of the program in 2011. The program's purpose is to leverage the expertise and infrastructure of higher education institutions to train DoD personnel in language, culture, and regional area studies. In 2010, NSEP funded the study “Leveraging Language and Cultural Education and U.S. Higher Education” to fulfill a Congressional request. Findings from the Leveraging report revealed that federal investments in language and culture at higher education institutions produced a group of universities with well-established programs and faculty expertise that are capable of supporting the military's needs for proficiency-based training in critical and less commonly taught languages at various levels of acquisition. Therefore, facilitating the establishment and continued growth of relationships among these institutions, military installations, and DoD entities is an integral part of the LTC program.

    Costs

    To manage and run its initiatives, NSEP employs 8.78 full-time equivalents (FTE), ranging in salary from Federal General Schedule (GS) grade 6 through GS grade 15 (three employees devote partial time to NSEP initiatives, which equates to 0.78 FTE). Using the 2014 GS pay scale for the Washington, DC metro area, NSEP's 8.78 FTEs equate to approximately $795,154 in DoD expenditure annually. To calculate this figure, NSEP used GS step one wage rates for all employees.

    NSEA legislates $14,000,000 for Boren Scholarships, Boren Fellowships, and The Language Flagship programs annually (sec. 1910-1911) and $2,000,000 for the EHLS program annually (sec. 1912). In addition, the Intelligence Authorization Act for Fiscal Year 2010, Section 314 (Pub. L. 111-259) directed the establishment of an African language program, a hybrid of Boren and Flagship, at $2,000,000. In addition to these amounts, NSEP receives $10,000,000 annually from DoD appropriations in support of Flagship program efforts.

    Retrospective Review

    This final rule will be reported in future status updates of DoD's retrospective review in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review.” DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

    Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

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

    Sec. 202, Public Law 104-4, “Unfunded Mandates Reform Act”

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This document will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

    Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

    The Department of Defense certifies that this final rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

    Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 208 does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. These requirements have been approved by OMB and assigned OMB Control Number 0704-0368, National Security Education Program (Service Agreement Report for Scholarship and Fellowship Awards).

    Executive Order 13132, “Federalism”

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.

    List of Subjects in 32 CFR Part 208

    Education, Languages, Service agreement.

    Accordingly 32 CFR part 208 is added to read as follows: PART 208—NATIONAL SECURITY EDUCATION PROGRAM (NSEP) AND NSEP SERVICE AGREEMENT Sec. 208.1 Purpose. 208.2 Applicability. 208.3 Definitions. 208.4 Policy. 208.5 Responsibilities. 208.6 Procedures. Authority:

    50 U.S.C. 1901-1912, 50 U.S.C. 1903, 50 U.S.C. chapter 37.

    §  208.1 Purpose.

    This part:

    (a) Implements the responsibilities of the Secretary of Defense for administering NSEP.

    (b) Updates DoD policy, assigns responsibilities, and prescribes procedures and requirements for administering and executing the NSEP service agreement in accordance with 50 U.S.C. chapter 37.

    (c) Modifies requirements related to the NSEP service agreement.

    (d) Assigns oversight of NSEP to the Defense Language and National Security Education Office.

    § 208.2 Applicability.

    This part applies to:

    (a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the DoD (referred to collectively in this part as the “DoD Components”).

    (b) The administrative agent, and all recipients of awards by NSEP.

    § 208.3 Definitions.

    These terms and their definitions are for the purpose of this part.

    Administrative agent. Organization that will administer, direct, and manage resources for NSEP.

    Boren Fellowship. A competitive award granted for graduate study under NSEP.

    Boren Scholarship. A competitive award granted for undergraduate study abroad under NSEP.

    Critical area. Determined by the Secretary of Defense, in consultation with the members of the National Security Education Board, in accordance with 50 U.S.C. chapter 37 and 50 U.S.C. 1903.

    Critical foreign language. Determined by the Secretary of Defense, in consultation with the members of the National Security Education Board in accordance with 50 U.S.C. chapter 37.

    Deferral of the NSEP service agreement. Official NSEP documentation signed by the Director, NSEP, or his or her designee, by which an NSEP award recipient pursuing approved, qualified further education is allowed to postpone meeting the service deadline.

    (1) A deferral reschedules the date by which an NSEP award recipient must begin to fulfill service.

    (2) Qualified further education includes, but is not limited to, no less than half-time enrollment in any degree-granting, accredited institution of higher education worldwide or participation in an academic fellowship program (e.g., Fulbright Fellowship, Thomas R. Pickering Foreign Affairs Fellowship).

    (3) A deferral is calculated by first calculating the length of enrollment in the degree program from start date to anticipated graduation date, and then adding the length of enrollment in the degree program to the service deadline.

    (4) Approvals of deferrals will be considered on a case-by-case basis.

    Extension of the NSEP service agreement. Official NSEP documentation signed by the ASD(R), through the DASD(FE&T), by which an NSEP award recipient who has completed award requirements, reached the service deadline, and is actively seeking to fulfill the NSEP service agreement in a well-documented manner is allowed to extend the service deadline. An extension reschedules the date by which an NSEP award recipient must complete the service required in the NSEP service agreement.

    Intelligence Community. The U.S. Intelligence Community is a coalition of 17 agencies and organizations within the executive branch that work both independently and collaboratively to gather the intelligence necessary to conduct foreign relations and national security activities.

    Language proficiency. The U.S. Government relies on the Interagency Language Roundtable (ILR) scale to determine language proficiency. According to the ILR scale:

    (1) 0 is No Proficiency.

    (2) 0+ is Memorized Proficiency.

    (3) 1 is Elementary Proficiency.

    (4) 1+ is Elementary Proficiency, Plus.

    (5) 2 is Limited Working Proficiency.

    (6) 2+ is Limited Working Proficiency, Plus.

    (7) 3 is General Professional Proficiency.

    (8) 3+ is General Professional Proficiency, Plus.

    (9) 4 is Advanced Professional Proficiency.

    (10) 4+ is Advanced Professional Proficiency, Plus.

    (11) 5 is Functional Native Proficiency.

    NSEP Service Approval Committee. Committee of key NSEP staff members who review the merits of all requests for service credit, deferrals, extensions, or waivers of the NSEP service agreement, including adjudication of all cases involving award recipients who decline job offers, in order to provide recommendations to the Director, NSEP.

    Other federal agencies. Includes any federal government agency, department, bureau, office or any other federal government organization of any nature other than the Department of Defense or any component, agency, department, field activity or any other subcomponent of any kind within or subordinate to the Department of Defense.

    Program end date. Official end of an NSEP award recipient's program, as set forth within the individual's NSEP service agreement.

    Request of service credit in fulfillment of the NSEP service agreement. Written request made through submission of a DD Form 2753 to the NSEP office, documenting how employment an NSEP award recipient held or holds complies with fulfillment of the NSEP service agreement.

    Reserve Officer Training Corps (ROTC). College program offered at colleges and universities across the United States that prepares young adults to become officers in the U.S. Military. In exchange for a paid college education and a guaranteed post-college career, cadets commit to serve in the Military after graduation. Each Service branch has its own take on ROTC.

    Satisfactory academic progress. Maintenance of academic standards at both home and host institution(s) for every NSEP award recipient for the duration of the study program.

    Service deadline. Date by which NSEP award recipient must begin to fulfill the NSEP service agreement.

    Waiver of the NSEP service agreement. Official NSEP documentation, signed by the ASD(R), through the DASD(FE&T), by which an NSEP award recipient is relieved of responsibilities associated with the NSEP service agreement.

    Work in fulfillment of the NSEP service agreement. Upon completion of the NSEP award recipient's study program, such individual must seek employment in the DoD, Department of Homeland Security (DHS), Department of State (DOS), or the Intelligence Community, or if no suitable position is available, anywhere in the U.S. Government in a position with national security responsibilities. If such individual is unsuccessful in finding a federal position after making a good faith effort to do so, award recipient agrees to seek employment in the field of education in a position related to the study supported by such scholarship or fellowship. The award recipient further agrees to fulfill the service requirement, as described in this rule.

    § 208.4 Policy.

    It is DoD policy that:

    (a) NSEP assist in making available to DoD and other federal entities, as applicable, personnel possessing proficiency in languages and foreign regional expertise critical to national security by providing scholarships and fellowships pursuant to 50 U.S.C. 1902(a). These scholarships and fellowships will be awarded to:

    (1) Students who are U.S. citizens, to pursue qualifying undergraduate and graduate study in domestic and foreign education systems to assist in meeting national security needs for professionals with in-depth knowledge of world languages and cultures, and who enter into an NSEP service agreement as required by 50 U.S.C. 1902(b); or

    (2) Students who are U.S. citizens who are native speakers of a foreign language identified as critical to the national security of the United States, but who are not proficient at a professional level in the English language with respect to reading, writing, and other skills, to enable such students to pursue English language studies at institutions of higher education. Recipients must agree to enter into an NSEP service agreement as required by 50 U.S.C. 1902(b).

    (b) Grants will be awarded to institutions of higher education for programs in critical areas pursuant to 50 U.S.C. 1902(a) and 1902(f) to implement a national system of programs to produce advanced language expertise critical to the national security of the United States.

    (c) An NSEP award recipient must enter into an NSEP service agreement before receipt of an award as required by 50 U.S.C. chapter 37. The award recipient must agree to maintain satisfactory academic progress and work in fulfillment of the NSEP service agreement until all service requirements are satisfied.

    (d) All NSEP award recipients who are government employees or members of the uniformed services at the time of award must confirm that they have resigned from such employment or service before receiving support for their NSEP-funded overseas study. These stipulations apply to all individuals, including employees of a department, agency, or entity of the U.S. Government and members of the uniformed services, including members of a Reserve Component of the uniformed services. ROTC participants who are also members of a Reserve Component must be in an inactive, non-drilling status during the course of their NSEP-funded overseas study.

    (e) Neither DoD nor the U.S. Government is obligated to provide, or offer work or employment to, award recipients as a result of participation in the program. All federal agencies are encouraged to assist in placing NSEP award recipients upon successful completion of the program.

    § 208.5 Responsibilities.

    (a) Under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), the ASD(R):

    (1) Develops programs, processes, and policies to support NSEP award recipients in fulfilling their NSEP service agreement through internships or employment in federal service pursuant to 50 U.S.C. chapter 37.

    (2) Determines, pursuant to 50 U.S.C. 1902(a), after consultation with the National Security Education Board, which countries, languages, and disciplines are critical and in which there are deficiencies of knowledgeable personnel within federal entities.

    (b) Under the authority, direction, and control of the USD(P&R) through the ASD(R), and in coordination with the Director, Department of Defense Human Resources Activity (DoDHRA), the DASD(FE&T), or his or her designee:

    (1) Makes available competitive scholarship, fellowship, and English for Heritage Language Speakers (EHLS) awards to U.S. citizens who wish to engage in study for the purposes of national security in accordance with 50 U.S.C. chapter 37.

    (2) Manages, oversees, and monitors compliance of NSEP service agreements on behalf of the Secretary of Defense.

    (3) Advises NSEP award recipients who are seeking federal or national security positions on how to fulfill their NSEP service agreement in national security positions.

    (4) Maintains documentation of successful completion of federal service or initiates debt collection procedures for those NSEP recipients who fail to comply with the NSEP service agreement.

    (5) Works with agencies or offices in the U.S. Government to identify potential employment opportunities for NSEP award recipients and make employment opportunities and information readily available to all award recipients.

    (6) Approves or disapproves all DD Form 2573 written requests for service credit, deferrals, extensions, or waivers of the NSEP service agreement, including adjudication of all cases involving award recipients who decline job offers.

    (c) Under the authority, direction, and control of the USD(P&R), and in coordination with the DASD(FE&T), the Director, DoDHRA:

    (1) Provides administrative and operational support to NSEP.

    (2) Provides fiscal management and oversight to ensure all funds provided for NSEP are separately and visibly accounted for in the DoD budget.

    § 208.6 Procedures.

    (a) NSEP award recipients. The award recipient of any scholarship or fellowship award through NSEP will:

    (1) Maintain satisfactory academic progress in the course of study for which assistance is provided, according to the regularly prescribed standards and practices of the institution in which the award recipient is matriculating.

    (2) As a condition of receiving an award, sign an NSEP service agreement as required by 50 U.S.C. chapter 37, which among other requirements, must acknowledge an understanding and agreement by the award recipient that failure to maintain satisfactory academic progress constitutes grounds upon which the award may be terminated and trigger the mandatory requirement to return to the U.S. Treasury the scholarship, fellowship, or EHLS funds provided to the award recipient.

    (3) Notify the DASD(FE&T) within ten business days if advised of failure to maintain academic progress by the institution of matriculation.

    (4) Notify the DASD(FE&T) in a timely manner and in advance of the service deadline should any request for deferral, extension, or waiver become necessary.

    (i) Deferrals. NSEP award recipients actively seeking to fulfill the NSEP service agreement in a well-documented manner may request approval of a one-year extension of their service deadline. Approvals of deferrals for pursuit of education will be considered on a case-by-case basis. Renewal of a deferral may be granted if adequately justified.

    (ii) Extensions. A thorough outline describing all further plans to complete the NSEP service agreement must accompany all extension requests. No more than two extensions may be granted to an NSEP award recipient.

    (iii) Waivers. (A) In extraordinary circumstances, an NSEP award recipient may be relieved of responsibilities associated with the NSEP service agreement. As a result of receiving a waiver, the award recipient will no longer receive job search assistance from NSEP; is no longer a beneficiary of the special hiring advantages available to award recipients who have a service requirement; and will not be eligible to receive NSEP letters of certification, or endorsements or recommendations. Upon request, the NSEP office will continue to certify that the award recipient received an NSEP scholarship or fellowship.

    (B) The DASD(FE&T), will consider requests for extensions and waivers of the NSEP service agreement only under special circumstances as defined in paragraph (b) of this section. The request must set forth the basis, situation, and causes which support the requested action. The award recipient must submit requests electronically on www.nsepnet.org or to [email protected] Final approval of work in fulfillment of the NSEP service agreement, deferrals, extensions, and waivers rest with, and are at the discretion of, the DASD(FE&T).

    (5) Immediately upon successful completion of the award program and either completion of the degree for which the award recipient is matriculated or withdrawal from such degree program, begin the federal job search. Award recipients should concurrently seek positions within DoD, any element of the Intelligence Community, the DHS, or DOS.

    (6) Work to satisfy all service requirements in accordance with applicable NSEP service agreements until all NSEP service requirements are satisfied. Work in fulfillment of the NSEP service agreement must be wholly completed within five years of the award recipient's first date of service unless an approved deferral or extension has been granted.

    (7) Work for the total period of time specified in the NSEP service agreement either consecutively in one organization, or through follow-on employment in two or more organizations.

    (8) Repay the U.S. Treasury the award funds provided to the award recipient if the requirements of the NSEP service agreement are not met.

    (9) Submit DD Form 2753 to NSEP no later than one month after termination of the period of study funded by NSEP and annual reports thereafter until the NSEP service requirement is satisfied. The DD Form 2753 will include:

    (i) Any requests for deferrals, extensions, or waivers with adequate support for such requests.

    (ii) The award recipient's current status (e.g., not yet graduated from, or terminated enrollment in, the degree program pursued while receiving NSEP support; engaged in work in fulfillment of the requirement.)

    (iii) Updated contact information.

    (10) Notify the ASD(R), through the DASD(FE&T), within ten business days of any changes to the award recipient's mailing address.

    (b) Procedures and requirements applicable to NSEP aard recipients—(1) NSEP service agreement. Award recipients of any scholarship, fellowship, or EHLS award through this program must comply with the terms of the NSEP service agreement they signed. NSEP awards entered into before the date of this part will be governed by the laws, regulations, and policies in effect at the time that the award was made. The NSEP service agreement for recipients awarded as of the date of this part will:

    (i) In accordance with 50 U.S.C. 1902(b) outlines requirements for NSEP award recipients to fulfill their federal service requirement through work in positions that contribute to the national security of the United States. An emphasis is placed on work within one of four organizations: DoD, any element of the Intelligence Community, DHS, or DOS. On a case-by-case basis, NSEP may consider employment with a federal contractor of one of these four priority organizations as meeting the service requirement should the award recipient provide adequate documentary evidence that the salary for the position is funded by the U.S. Government.

    (ii) Stipulate that absent the availability of a suitable position in the four priority organizations or a contractor thereof, award recipients may satisfy the service requirement by serving in any federal agency or office in a position with national security responsibilities. It will also stipulate that absent the availability of a suitable position in DoD, any element of the Intelligence Community, DHS, DOS, a contractor thereof, or any federal agency with national security responsibilities, award recipients may satisfy the service requirement by working in the field of education in a discipline related to the study supported by the program if the recipient satisfactorily demonstrates to the Secretary of Defense through the Director, NSEP, that no position is available in the departments, agencies, and offices covered by paragraph (b)(1)(i) of this section.

    (2) Implementation. The NSEP service agreement will be implemented as follows:

    (i) Prior to receiving assistance, the award recipient must sign an NSEP service agreement. The award recipient will submit to the NSEP Administrative Agent, in advance of program of study start date, any proposed changes to the approved award program (i.e., course and schedule changes, withdrawals, course or program incompletions, unanticipated or increased costs).

    (ii) The minimum length of service requirement for undergraduate scholarship, graduate fellowship, and EHLS award recipients is one year. The duration of the service requirement for graduate fellowship award recipients is equal to the duration of assistance provided by NSEP.

    (iii) In accordance with 50 U.S.C. 1902(b), undergraduate scholarship students must begin fulfilling the NSEP service agreement within three years of completion or termination of their undergraduate degree program.

    (iv) In accordance with 50 U.S.C. 1902(b), graduate fellowship students must begin fulfilling the NSEP service agreement within two years of completion or termination of their graduate degree program.

    (v) In accordance with 50 U.S.C. 1902(b), EHLS award recipients must begin fulfilling the service requirement within three years of completion of their program.

    (vi) The award recipient must accept a reasonable offer of employment, as defined by the Director, NSEP, or his or her designee, in accordance with the NSEP service agreement, at a salary deemed by the hiring organization as commensurate with the award recipient's education level, and consistent with the terms and conditions of the NSEP service agreement.

    (vii) The award recipient will annually submit a DD Form 2753 to NSEP until all NSEP service agreement requirements are satisfied. The DD Form 2753 must be received and reviewed by the NSEP Service Approval Committee. The receipt of a completed DD Form 2753 will be acknowledged through official correspondence from NSEP. Award recipients who do not submit the DD Form 2753 as required will be notified by NSEP of the intent to pursue collection action.

    (viii) If the award recipient fails to maintain satisfactory academic progress for any term in which assistance is provided, probationary measures of the host institution will apply to the award recipient. Failure to meet the institution's requirements to resume satisfactory academic progress within the prescribed guidelines of the institution will result in the termination of assistance to the award recipient.

    (ix) Extenuating circumstances, such as illness of the award recipient or a close relative, death of a close relative, or an interruption of study caused by the host institution, may be considered acceptable reasons for non-satisfactory academic progress. The award recipient must notify the NSEP Administrative Agent of any extenuating circumstances within 10 business days of occurrence. The NSEP Administrative Agent will review these requests to determine what course of action is appropriate and make a recommendation to NSEP for final determination. The DASD(FE&T) will upon receipt of the NSEP Administrative Agent recommendation, determine by what conditions to terminate or reinstate the award to the award recipient.

    (x) NSEP award recipients may apply to the DASD(FE&T) for a deferral of the NSEP service agreement requirement if pursuing qualified further education.

    (xi) NSEP award recipients may apply to the DASD(FE&T), to receive an extension of the NSEP service agreement requirement if actively seeking to fulfill the NSEP service agreement in a well-documented manner.

    (xii) In extraordinary circumstances an NSEP award recipient may request a waiver to be relieved of responsibilities associated with the NSEP service agreement. Conditions for requesting a waiver to the NSEP service agreement may include:

    (A) Situations in which compliance is either impossible or would involve extreme hardship to the award recipient.

    (B) Interruptions in service due to temporary physical or medical disability or other causes beyond the award recipient's control.

    (C) Unreasonable delays in the hiring process not caused by the award recipient, including delays in obtaining a security clearance if required for employment.

    (D) Hiring freezes that adversely affect award recipients who are seeking positions with the U.S. Government.

    (E) Permanent physical or medical disability that prevent the award recipient from fulfilling the obligation.

    (F) Inability to complete the NSEP service agreement due to terminations or interruptions of work beyond the award recipient's control.

    (G) Death of the award recipient.

    (xiii) In cases where assistance to the award recipient is terminated, the amount owed to the U.S. Government is equal to the support received from NSEP. Repayment to the U.S. Treasury must be made within a period not to exceed six months from expiration of the service deadline. Noncompliance with repayment requirements will result in the initiation of standard U.S. Government collection procedures to obtain payment for overdue indebtedness, unless a waiver is specifically granted by the DASD(FE&T). Further job search assistance to an award recipient will be denied if any outstanding debt remains unpaid as a result of an award termination.

    (A) Repayment to the U.S. Treasury for the amount of assistance provided becomes due, either in whole or in part, if the award recipient fails to fulfill the NSEP service agreement. Award recipients who do not submit the SAR as required will be notified by NSEP of the intent to pursue collection action. Noncompliance with repayment requirements will result in the initiation of standard U.S. Government collection procedures to obtain payment for overdue indebtedness, unless a waiver is specifically granted by the DASD(FE&T).

    (B) Repayment recovery procedures will include one or a combination of the following:

    (1) Voluntary repayment schedule arranged between the award recipient and the administrative agent.

    (2) Deduction from accrued pay, compensation, amount of retirement credit, or any other amount due the employee from the U.S. Government.

    (3) Such other methods as are provided by law for recovery of amounts owed to the U.S. Government.

    Dated: November 29, 2016. Morgan Park, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-29023 Filed 12-2-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2016-0975] Special Local Regulation; Southern California Annual Marine Events for the San Diego Captain of the Port Zone—San Diego Parade of Lights AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the San Diego Parade of Lights special local regulations on the waters of San Diego Bay, California on December 11, 2016 and December 18, 2016. These special local regulations are necessary to provide for the safety of the participants, crew, spectators, sponsor vessels, and general users of the waterway. During the enforcement period, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area unless authorized by the Captain of the Port, or his designated representative.

    DATES:

    The regulations in 33 CFR 100.1101 will be enforced from 5 p.m. through 8:30 p.m. on December 11, 2016 and December 18, 2016 for Item 5 in Table 1 of Section 100.1101.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this publication of enforcement, call or email Lieutenant Robert Cole, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone (619) 278-7656, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 for the San Diego Parade of Lights in San Diego Bay Bay, CA in 33 CFR 100.1101, Table 1, Item 5 of that section from 5 p.m. until 8:30 p.m. on December 11, 2016 and December 18, 2016. This enforcement action is being taken to provide for the safety of life on navigable waterways during the event. The Coast Guard's regulation for recurring marine events in the San Diego Captain of the Port Zone identifies the regulated entities and area for this event. Under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area, unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

    This document is issued under authority of 5 U.S.C. 552(a) and 33 CFR 100.1101. In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor.

    If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

    Dated: November 16, 2016. J.R. Buzzella, Captain, U.S. Coast Guard, Captain of the Port San Diego.
    [FR Doc. 2016-29110 Filed 12-2-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-1007] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (Albemarle and Chesapeake Canal), Chesapeake, VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the S168 (Battlefield Blvd. S/SR 168 BUS) Bridge across the Albemarle & Chesapeake Canal, mile 12.0, Atlantic Intracoastal Waterway, Chesapeake (Great Bridge), VA. The deviation is necessary to accommodate the 32nd Annual Chesapeake Rotary Christmas Parade. This deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    The deviation is effective from 4:00 p.m. to 10:00 p.m., December 3, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-1007] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Martin Bridges, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6422, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The City of Chesapeake, who owns the S168 (Battlefield Blvd. S/SR 168 BUS) Bridge across the Albemarle & Chesapeake Canal, mile 12.0, Atlantic Intracoastal Waterway, Chesapeake (Great Bridge), VA, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.997(g) to facilitate the 32nd Annual Chesapeake Rotary Christmas Parade.

    Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 4:00 p.m. to 6:00 p.m. and from 8:00 p.m. to 10:00 p.m., on December 3, 2016. The closure has been requested to ensure the safety of the increased volume of cars and spectators that will be participating in the 32nd Annual Chesapeake Rotary Christmas Parade. The bridge is a single bascule bridge and has a vertical clearance in the closed-to-navigation position of 8 feet above mean high water.

    The Atlantic Intracoastal Waterway (Albemarle and Chesapeake Canal) is used by a variety of vessels including recreational, tug and barge, fishing vessels, and small commercial vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

    Vessels able to pass through the bridge in the closed- position may do so at any time. The bridge will open in case of an emergency and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: November 29, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2016-29049 Filed 12-2-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-1016] Drawbridge Operation Regulation; York River, Yorktown, VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Coleman Memorial (US 17) Swing Bridge across the York River, mile 7.0, Yorktown, VA. The deviation is necessary to accommodate maintenance to the bridge's hydraulic motors, pumps, and hoses. This deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    This deviation is effective without actual notice from December 5, 2016 through 8 p.m. on December 15, 2016. For the purposes of enforcement, actual notice will be used from 7:00 a.m. on December 1, 2016, until December 5, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-1016] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Martin Bridges, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6422, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Virginia Department of Transportation, who owns the Coleman Memorial (US 17) Swing Bridge across the York River, mile 7.0, Yorktown, VA, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.1025 to facilitate maintenance to the bridge's hydraulic motors, pumps, and hoses.

    Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 7:00 a.m. to 8:00 p.m., on December 1, 2016, and December 8, 2016; with an alternate date on December 15, 2016. At all other times, the bridge will operate per 33 CFR 117.1025. The bridge is a swing bridge and has a vertical clearance in the closed-to-navigation position of 60 feet above mean high water.

    The York River is used by a variety of vessels including recreational, tug and barge, fishing vessels, and small commercial vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

    Vessels able to pass through the bridge in the closed-position may do so at any time. The bridge will not be able to open in case of an emergency. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: November 29, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2016-29050 Filed 12-2-16; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 380 [Docket No. 14-CRB-0001-WR (2016-2020) (COLA 2017)] Cost of Living Adjustment to Royalty Rates for Webcaster Statutory License AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    The Copyright Royalty Judges announce a cost of living adjustment (COLA) in the royalty rates that commercial and noncommercial noninteractive webcasters pay for eligible transmissions pursuant to the statutory licenses for the public performance of and for the making of ephemeral reproductions of sound recordings.

    DATES:

    Effective Date: January 1, 2017.

    Applicability Dates: These rates are applicable to the period January 1, 2017, through December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Sections 112(e) and 114(f) of the Copyright Act, title 17 of the United States Code, create statutory licenses for certain digital performances of sound recordings and the making of ephemeral reproductions to facilitate transmission of those sound recordings. On May 2, 2016, the Copyright Royalty Judges (Judges) adopted final regulations governing the rates and terms of copyright royalty payments under those licenses for the license period 2016-2020 for performances of sound recordings via eligible transmissions by commercial and noncommercial noninteractive webcasters. See 81 FR 26316.

    Pursuant to those regulations, at least 25 days before January 1 of each year, the Judges shall publish in the Federal Register notice of a COLA applicable to the royalty fees for performances of sound recordings via eligible transmissions by commercial and noncommercial noninteractive webcasters. 37 CFR 380.10(a)(1)-(2).

    The adjustment in the royalty fee shall be based on a calculation of the percentage increase in the CPI-U from the CPI-U published in November 2015 (237.838),1 according to the formula (1 + (Cy−237.838)/237.838) × R2016, where Cy is the CPI-U published by the Secretary of Labor before December 1 of the preceding year and R2016 is the royalty rate for 2016 (i.e., $0.0022 per subscription performance or $0.0017 per nonsubscription performance). The adjustment shall be rounded to the nearest fourth decimal place. 37 CFR 380.10(c) (as revised herein). The CPI-U published by the Secretary of Labor from the most recent index published before December 1, 2016, is 241.729.2 Applying the formula in 37 CFR 380.10(c) and rounding to the nearest fourth decimal place results in no adjustment in the rates for 2017.

    1 The current regulations erroneously state that 237.336 was the CPI-U published in November 2015. That was actually the CPI-U for November 2015 that was published in December 2015. See BLS News Release—Consumer Price Index November 2015, available at http://www.bls.gov/news.release/archives/cpi_12152015.pdf. The correct figure for this part of the calculation is 237.838 because it was the CPI-U published in November 2015. See BLS News Release—Consumer Price Index November 2015, available at http://www.bls.gov/news.release/archives/cpi_11172015.pdf. The Judges have corrected the figure in text of the regulations published herein.

    2 As announced on November 17, 2016, by the Bureau of Labor Statistics in its News Release—Consumer Price Index October 2016, available at http://www.bls.gov/news.release/pdf/cpi.pdf.

    The 2017 rate for eligible transmission of sound recordings by commercial webcasters remains unchanged at a rate of $.0022 per subscription performance and $.0017 per nonsubscription performance.

    Application of the formula to rates for noncommercial webcasters results in an unchanged rate of $.0017 per performance for all digital audio transmissions in excess of 159,140 ATH in a month on a channel or station.

    As provided in 37 CFR 380.1(d), the royalty fee for making ephemeral recordings under section 112 of the Copyright Act to facilitate digital transmission of sound recordings under section 114 of the Copyright Act is included in the section 114 royalty fee and comprises 5% of the total fee.

    List of Subjects in 37 CFR Part 380

    Copyright, Sound recordings.

    Final Regulations

    In consideration of the foregoing, the Judges amend part 380 of title 37 of the Code of Federal Regulations as follows:

    PART 380—RATES AND TERMS FOR TRANSMISSIONS BY ELIGIBLE NONSUBSCRIPTION SERVICES AND NEW SUBSCRIPTION SERVICES AND FOR THE MAKING OF EPHEMERAL REPRODUCTIONS TO FACILITATE THOSE TRANSMISSIONS 1. The authority citation for part 380 continues to read as follows: Authority:

    17 U.S.C. 112(e), 114(f), 804(b)(3).

    2. Section 380.10 is amended by: a. Revising paragraph (a). b. In paragraph (c), removing “237.336” wherever it appears and adding in its place “237.838”.

    The revision reads as follows:

    § 380.10 Royalty fees for the public performance of sound recordings and the making of ephemeral recordings.

    (a) Royalty fees. For the year 2017, Licensees must pay royalty fees for all Eligible Transmissions of sound recordings at the following rates:

    (1) Commercial Webcasters: $0.0022 per performance for subscription services and $0.0017 per performance for nonsubscription services.

    (2) Noncommercial webcasters. $500 per year for each channel or station and $0.0017 per performance for all digital audio transmissions in excess of 159,140 ATH in a month on a channel or station.

    Dated: November 29, 2016. Suzanne M. Barnett, Chief Copyright Royalty Judge.
    [FR Doc. 2016-29019 Filed 12-2-16; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0439; FRL-9954-33] Tau-Fluvalinate; Pesticide Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes a tolerance for residues of tau-fluvalinate in or on wine grapes. Makhteshim Agan of North America, Inc., d/b/a ADAMA requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective December 5, 2016. Objections and requests for hearings must be received on or before February 3, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0439, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0439 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 3, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0439, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of August 26, 2015 (80 FR 51759) (FRL-9931-74), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E8362) by Makhteshim Agan of North America, Inc., d/b/a ADAMA, 3120 Highwoods Blvd., Suite 100, Raleigh, NC 27604. The petition requested that 40 CFR 180.427 be amended by establishing a tolerance for residues of the insecticide/miticide tau-fluvalinate in or on wine grapes at 1.0 parts per million (ppm). That document referenced a summary of the petition prepared by Makhteshim Agan of North America, Inc., d/b/a ADAMA, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

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

    Tau-fluvalinate is a member of the pyrethroid class of insecticides. Pyrethroids have historically been classified into two groups, Type I and Type II, based on chemical structure and toxicological effects. Tau-fluvalinate is a Type II pyrethroid. Neurotoxicity was observed throughout the database and clinical signs characteristic of Type II pyrethroids, such as excessive salivation, tremors, pawing, abnormal stance, excessive lacrimation, bulging eyes, ruffling, excessive grooming, vocalization and hyperactivity followed by hypoactivity were seen. Other observed neurotoxic effects included decreased rearing, forelimb grip strength and body temperature, heightened sensitivity to pain, and impaired motor, autonomic, and sensorimotor function.

    No increased prenatal susceptibility was observed following developmental toxicity studies in the rat or rabbit. Tau-fluvalinate did not have an effect on fetal development in the prenatal developmental study in rats. In the prenatal developmental study in rabbits, maternal and fetal effects were seen at the highest dose tested. Developmental effects included skeletal anomalies, a lower implantation efficiency, higher incidence of resorption and concurrent lower fetal viability. Maternal effects involved anorexia and general depression. The qualitative susceptibility seen during the prenatal developmental study in rabbits is secondary to maternal toxicity and occurs at the same dose. Evidence of quantitative post-natal sensitivity was observed in the 2-generation reproduction study in rats. Under the conditions of this study, both the F1 and F2 litters experienced tremors during lactation and decreased pup and litter weight in both litters while no effects were noted in the adult animals. However, when considered in the context of the totality of the database, a different pattern emerges regarding this apparent lifestage sensitivity. It appears that the postnatal sensitivity seen in the reproduction study reflects the limited evaluation of adult animals as well as the potential for greater pup exposure through both milk and feed rather than a specific lifestage sensitivity. There are on-going efforts to develop methods to investigate the possibility of increased sensitivity of juvenile rats to pyrethroids as a class at doses near the lowest observed adverse effect level (LOAEL) values. Pending receipt of the additional data, the Agency has conducted an assessment using the available guideline and literature studies. This approach is consistent with assessments performed for other pyrethroid pesticides.

    A dermal assessment was not conducted based on the lack of systemic toxicity in the rabbit dermal study at the limit dose and the low potential for dermal absorption. These findings are consistent with the toxicology profile of many pyrethroids. In an acute inhalation neurotoxicity study, neurotoxic effects were observed in the functional observational battery (FOB) including decreased rearing, forelimb grip strength and body temperature in females. This route-specific study provides a robust endpoint for the inhalation route of exposure and was used to estimate human inhalation risks. The standard interspecies extrapolation uncertainty factor is reduced from 10X to 3X due to the human equivalent concentration (HEC) calculation accounting for pharmacokinetic (not pharmacodynamic) interspecies differences. However, due to the lack of a clear no- observed-adverse-effect-level (NOAEL) in the acute inhalation neurotoxicity study, an additional 10X is added to extrapolate a NOAEL from a lowest-observed-adverse-effect-level (LOAEL). The 10X intraspecies factor is also applied. The total uncertainty factor for inhalation exposure is 300X for adults and children >6 years of age. The total inhalation uncertainty factor for children ≤6 years of age is 1,000X since the Food Quality Protection Act safety factor (FQPA SF) of 3X applies.

    There was no evidence of carcinogenicity in the combined chronic gavage/carcinogenicity study in rats or the carcinogenicity study in mice. In a battery of mutagenicity studies, there was no evidence of a mutagenic effect.

    Specific information on the studies received and the nature of the adverse effects caused by tau-fluvalinate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “Tau-fluvalinate. Human Health Risk Assessment for Registration Review and for Establishment of a Tolerance with No U.S. Registrations for Residues in Wine Grapes” on page 52 in docket ID number EPA-HQ-OPP-2015-0439.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    The database of tau-fluvalinate toxicology studies is complete and provides a robust characterization of the hazard potential for children and adults. In addition to the standard guideline studies, numerous studies from the scientific literature that describe the pharmacodynamic (PD) and pharmacokinetic (PK) profile of the pyrethroids in general have been considered in EPA's assessment. Tau-fluvalinate is rapidly absorbed following an oral dose, and effects are typically observed within the first several hours after dosing. For pyrethroids, as a class, the combination of rapid absorption, metabolism, and elimination precludes accumulation and increased potency following repeated dosing. This is also true of tau-fluvalinate. However, the combined chronic gavage/carcinogenicity neurotoxicity study is more appropriate for point of departure (POD) selection than the acute oral studies, because it is more sensitive. This is likely due to the lower doses tested, and the lower gavage volume used to administer tau-fluvalinate. While acute neurotoxic effects are the most sensitive effects observed in the toxicity database, neurotoxic effects attributable to chronic exposure to tau-fluvalinate have not been identified. The clinical signs in the combined chronic gavage/carcinogenicity neurotoxicity study disappeared each day prior to the next dosing and did not progress in severity across time. This POD is the most protective within the database and will be protective of the acute neurotoxic effects seen in the acute, subchronic and 2-generation reproduction studies in the rat. All exposure durations for the tau-fluvalinate risk assessment are assessed as single-day exposures.

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

    Table 1—Summary of Toxicological Doses and Endpoints for Tau-fluvalinate for Use in Human Health Risk Assessment Exposure/scenario Point of departure and
  • uncertainty/safety
  • factors
  • RfD, PAD, LOC for
  • risk assessment
  • Study and toxicological effects
    Acute dietary (Children < 6 years old) NOAEL = 1.0 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 3x
  • Acute RfD = 0.01 mg/kg/day
  • aPAD = 0.003 mg/kg/day
  • Combined chronic gavage/carcinogenicity study.
  • LOAEL = 2.5 mg/kg/day. Clinical signs of neurotoxicity including excessive salivation, pawing, abnormal stance, excessive lacrimation, ruffling and hyperactivity followed by hypoactivity.
  • Acute dietary (Adults and children ≥ 6 years old) NOAEL = 1.0 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Acute RfD = 0.01 mg/kg/day
  • aPAD = 0.01 mg/kg/day
  • Combined chronic gavage/carcinogenicity study.
  • LOAEL = 2.5 mg/kg/day. Clinical signs of neurotoxicity including excessive salivation, pawing, abnormal stance, excessive lacrimation, ruffling and hyperactivity followed by hypoactivity.
  • Chronic dietary (All populations) Neurotoxic effects, the most sensitive effects observed in the toxicity database, attributable to chronic exposure to tau-fluvalinate have not been identified (neurotoxic effects do not progress over time). Inhalation short-term (1 to 30 days) Inhalation study LOAEC= 20 mg/m3
  • UFA = 3x
  • UFH = 10x
  • UFL = 10x
  • FQPA SF= 3x (Children <6 years old)
  • FQPA SF= 1x (Adults and children ≥6 years old)
  • LOC for MOE = 1,000 (Children <6 years old)
  • LOC for MOE = 300 (Adults and children ≥6 years old)
  • Acute inhalation study.
  • LOAEL = 20 mg/m 3 (LDT). Increased glucose levels and decreased body temperature, rearing and forelimb grip strength in females in addition to soiled fur appearance.
  • Cancer (Oral, dermal, inhalation) Tau-fluvalinate has been classified as not likely to be a human carcinogen. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL.
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tau-fluvalinate, EPA considered exposure under the petitioned-for tolerances as well as all existing tau-fluvalinate tolerances in 40 CFR 180.427. EPA assessed dietary exposures from tau-fluvalinate in food as follows:

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

    Such effects were identified for tau-fluvalinate. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture's (USDA) 2003-2008 National Health and Nutrition Survey/What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues and 100 percent crop treated (PCT) for all registered and proposed commodities.

    ii. Chronic exposure. Neurotoxic effects, the most sensitive effects observed in the toxicity database, attributable to chronic exposure to tau-fluvalinate have not been identified (neurotoxic effects do not progress over time); therefore, a quantitative chronic aggregate risk assessment was not conducted.

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

    iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for tau-fluvalinate. Tolerance level residues and 100 PCT were assumed for all food commodities.

    2. Dietary exposure from drinking water. As a class of chemicals, the pyrethroids have low water solubility and a high affinity to bind to soils. Given these physical/chemical properties, it is unlikely that dietary exposure from drinking water will be a major pathway of exposure. The existing beehive use and use on wine grapes grown outside of the U.S. will not result in tau-fluvalinate entering drinking water sources. However, the outdoor, non-food uses (including carrots and Brassica/cole crops grown for seed, ornamentals and building perimeters) could potentially result in residues in surface or ground water. The limit of water solubility, 2.4 ppb, is used for tau-fluvalinate as an upper-bound estimated drinking water concentration (EDWC) for this assessment.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Tau-fluvalinate is currently registered for the following uses that could result in residential exposures: Outdoor residential settings including outside surfaces (crack and crevice), ant mound treatments (spot application) and use on roses, flowers, houseplants, ground covers, vines, ornamentals, shrubs and trees. EPA assessed residential exposure using the following assumptions: Because a dermal hazard was not identified for tau-fluvalinate, only inhalation exposures were assessed for handlers. The quantitative exposure/risk assessment developed for residential handlers is based on the following scenarios: (1) Applying ready-to-use (RTU) spray for use on gardens/trees, flowers, and ornamentals; (2) Mixing/loading/applying liquids with pump sprayer/hose-end sprayer for use on gardens/trees, flowers, and ornamentals; (3) Mixing/loading/applying liquids with manually pressurized handwand for use on gardens/trees, flowers, and ornamentals; (4) Mixing/loading/applying liquids with backpack for use on gardens/trees, flowers, and ornamentals; (5) Mixing/loading/applying liquids with a sprinkler can for use on gardens/trees, flowers, and ornamentals; and (6) Applying RTU spray to spot or crack and crevice treatment outdoors.

    Although there is potential for post-application exposure to individuals as a result of being in an environment that has been previously treated with tau-fluvalinate, post-application inhalation exposure is anticipated to be negligible due to the combination of low vapor pressure for tau-fluvalinate and the expected dilution in outdoor air. In addition, because no dermal POD was selected for tau-fluvalinate (i.e., there is no dermal hazard), a quantitative residential dermal post-application exposure assessment was not performed.

    Post-application non-dietary ingestion exposure was also not quantitatively assessed for young children. Unlike treated grass at home or in recreational areas or indoor floor surfaces, for the tau-fluvalinate registered outdoor uses (e.g., flowers, trees, crack and crevice), the potential for exposure via non-dietary ingestion for young children is greatly diminished. Since the extent to which young children engage in the types of activities associated with these areas (e.g., gardening) or utilize these areas for prolonged periods of play is low, significant non-dietary ingestion exposure is not expected.

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

    The Agency has determined that the pyrethroids and pyrethrins share a common mechanism of toxicity http://www.regulations.gov; EPA-HQ-OPP-2008-0489-0006. The members of this group share the ability to interact with voltage-gated sodium channels ultimately leading to neurotoxicity. The cumulative risk assessment (CRA) for the pyrethroids/pyrethrins was published on November 9, 2011 and is available at http://www.regulations.gov; EPA-HQ-OPP-2011-0746. No cumulative risks of concern were identified, allowing the agency to consider new uses for pyrethroids. For information regarding EPA's efforts to evaluate the risk of exposure to this class of chemicals, refer to http://www.epa.gov/oppsrrd1/reevaluation/pyrethroids-pyrethrins.html.

    Tau-fluvalinate was included in the 2011 pyrethroid CRA. In the cumulative assessment, residential exposure was the greatest contributor to the total exposure. There are currently registered tau-fluvalinate products for outdoor residential uses that have not been previously assessed and were not included in the CRA. In order to determine if the currently registered tau-fluvalinate residential uses will significantly contribute to or change the overall findings in the pyrethroid CRA, the Agency performed a quantitative cumulative screening assessment. This assessment used the currently registered application rates for tau-fluvalinate along with the previous assumptions as used in the 2011 CRA (i.e., unit exposures, body weight, and the relative potency factor (RPF) for tau-fluvalinate). The resulting exposures were then compared to the pyrethroid CRA index point of departure (index POD) to calculate the screening MOEs. These screening MOEs were then be directly compared to the MOEs that were calculated in the CRA. If the screening MOEs are similar to, or are greater than, the CRA MOEs, then it can be concluded that any currently registered residential uses will not have an impact on the pyrethroid CRA.

    The outdoor garden uses resulting in the highest residential exposures for tau-fluvalinate are selected for the screening assessment (specifically, the backpack sprayer and RTU hose-end sprayer garden scenarios). As there is no post-application inhalation or child incidental oral exposures expected from the garden uses, and there is no dermal hazard for tau-fluvalinate, it is only necessary to perform an adult handler inhalation assessment.

    The resulting screening MOEs (adult handler) for tau-fluvalinate garden backpack and hose end sprayer scenarios are 1,300,000 and 61,000, respectively. In the CRA, the garden risk driver was identified as the tau-fluvalinate backpack use and the MOE for that scenario was 1,300. However, since the 2011 CRA, it has been determined that there is no dermal hazard for tau-fluvalinate. With the dermal exposures removed, that MOE would now be 780,000 and would no longer be considered the highest risk driver. Therefore, the next highest risk driver for the CRA garden scenario is used which is the cypermethrin backpack use with a total MOE of 1,400. Since the screening MOEs (1,300,000 and 260,000) are much greater than the CRA MOE (1,400), it can be concluded that the currently registered tau-fluvalinate residential uses will not significantly impact the overall findings in the 2011 pyrethroid CRA.

    Dietary exposures make a minor contribution to the total pyrethroid exposure. The dietary exposure assessment performed in support of the pyrethroid cumulative was much more highly refined than that performed for the single chemical. The proposed tolerance for residues of tau-fluvalinate on imported wine grape will make an insignificant contribution to dietary risk to the pyrethroids as a whole.

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. After reviewing the extensive body of peer-reviewed literature on pyrethroids, the Agency has no residual uncertainties regarding age-related sensitivity for women of child bearing age as well as for all adult populations and children >6 years of age, based on the absence of pre-natal sensitivity observed in 76 guideline studies for 24 pyrethroids and the scientific literature. Additionally, no evidence of increased quantitative or qualitative susceptibility was seen in the pyrethroid scientific literature related to PD. The Agency is retaining a 3X FQPA Safety Factor to protect for exposures of children ≤6 years of age based on the increased quantitative susceptibility seen in studies on pyrethroid PKs and the increased quantitative juvenile susceptibility observed in high dose studies in the literature.

    Although sensitivity was observed in the 2-generation reproduction study, there is a clear NOAEL for the effects (tremors), and the PODs selected for risk assessment are 10-fold lower than where sensitivity was observed, and are therefore protective. When considered within the context of the totality of the database, EPA believes that the apparent sensitivity in the multi-generation reproduction toxicity study in rats is a reflection of the study's design rather than a lifestage sensitivity per se. In addition, the LOAELs from the maternal rat prenatal developmental study and the offspring 2-generation reproduction study are ~10 mg/kg/day. There is no sensitivity observed across the rat prenatal developmental and 2-generation reproduction studies.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for adults and the general population and 3X to protect for exposures of children ≤6 years of age based on the increased quantitative susceptibility seen in studies on pyrethroid PKs and the increased quantitative juvenile susceptibility observed in high dose studies in the literature. That decision is based on the following findings:

    i. The toxicology database is adequate for the evaluation of risks to infants and children. Acceptable studies include: Rat and rabbit developmental toxicity studies, a rat multi-generation reproduction study and chronic toxicity/carcinogenicity studies in mice and rats. In addition, acceptable acute (non-guideline) and subchronic (guideline) neurotoxicity studies in the rat are adequate to evaluate the neurotoxicity of tau-fluvalinate.

    EPA is making best use of the extensive scientific knowledge about the adverse outcome pathway of pyrethroids in the risk assessments for this class of pesticides. In this way, information on a subset of pyrethroids can be used to help interpret and understand the toxicological profile for other members of the class. In that regard, a group of pesticide registrants and product formulators known as the Council for the Advancement of Pyrethroid Human Risk Assessment (CAPHRA) has been conducting multiple experiments with permethrin and deltamethrin as model Type I and Type II compounds, respectively, in order to develop an initial extensive database of in vitro and in vivo toxicology studies and highly refined physiologically-based pharmacokinetic (PBPK) models. In light of the literature studies indicating a possibility of increased sensitivity in juvenile rats at high doses, the agency is expecting additional in vitro and in vivo data to help elucidate the biological processes underlying the juvenile sensitivity reported in the peer reviewed literature. In 2010, the agency requested proposals for study protocols that could identify and quantify potential juvenile sensitivity and received a single response from the Pyrethrin and Pyrethroids Technical Working Group (PPTWG), a conglomerate of pyrethroid registrants. The PPTWG protocol has been reviewed, the initial study proposal was refined, and the CAPHRA submitted its updated research. Currently, the CAPHRA is continuing to: (1) Develop rat and human PBPK models, including additional PK data, and (2) conduct in vivo behavioral testing using auditory startle testing in rats and plans to submit additional data to the agency. For the reasons discussed in Unit III.D.2., the uncertainty regarding the protectiveness of the intraspecies uncertainty factor raised by the literature studies and the absence of the requested data warrant application of an additional 3X for risk assessments for infants and children under 6 years of age.

    ii. As with other pyrethroids, tau-fluvalinate causes neurotoxicity from interaction with sodium channels leading to clinical signs of neurotoxicity. Neurotoxicity was observed in several of the toxicity studies for the active ingredient; however, concern is low, because the selected endpoints are protective of the observed effects. The effects are well characterized and adequately assessed by the available guideline and non-guideline studies.

    iii. There were no indications of fetal toxicity in the rat developmental toxicity study. In the rabbit developmental toxicity study, there were fetotoxic effects, as indicated by a lower implantation efficiency, higher incidence of resorption and concurrent lower fetal viability in the high-dose group. However, effects were likely secondary to maternal toxicity at the same dose (125 mg/kg/day). There were signs of post-natal sensitivity in the tau-fluvalinate 2-generation reproduction study in rats. The parental generation did not experience any systemic effects up to the highest dose tested, where there were tremors during lactation in both F1 and F2 litters, as well as decreased pup body and litter weights in both generations. The degree of concern for these effects in infants is low, because the offspring effects have clearly defined NOAELs/LOAELs and the POD selected for risk assessment is protective of these effects.

    iv. There are no residual uncertainties in the exposure database. Dietary exposures to tau-fluvalinate are estimated using tolerance level residues and 100 PCT. The high-end EDWC for tau-fluvalinate is based on the limit of solubility in water. Adequate exposure data are available to assess the residential exposures. These assessments will not underestimate the exposure and risks posed by tau-fluvalinate.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tau-fluvalinate will occupy 20% of the aPAD for adults 50 to 99 years old, the population group receiving the greatest exposure.

    2. Chronic risk. Based on the data summarized in Unit III.A., there is no increase in hazard with increasing dosing duration. Furthermore, chronic dietary exposures will be lower than acute exposures. Therefore, the acute aggregate assessment is protective of potential chronic aggregate exposures.

    3. Short-term risk. Tau-fluvalinate is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to tau-fluvalinate.

    An Aggregate Risk Index (ARI) approach was used to aggregate the dietary and residential (inhalation) exposures since the levels of concern are not the same for those exposures (100 and 300, respectively). Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate ARI of 74 for adults. Because EPA's level of concern for tau-fluvalinate is an ARI of 1 or below, this ARI is not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Because no intermediate-term adverse effect was identified, tau-fluvalinate is not expected to pose an intermediate-term risk.

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

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

    IV. Other Considerations A. Analytical Enforcement Methodology

    Acceptable methods are available for enforcement and data collection purposes for both plant and animal commodities. The Pesticide Analytical Manual (PAM) Volume II lists Method I, a GC method with electron capture detection (ECD), for the enforcement of tolerances for fluvalinate in/on plant and animal commodities.

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for tau-fluvalinate.

    C. Revisions to Petitioned-For Tolerances

    Finally, EPA has revised the tolerance expression to clarify (1) that, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of tau-fluvalinate not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression.

    V. Conclusion

    Therefore, a tolerance is established for residues of tau-fluvalinate, in or on grape, wine at 1.0 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: November 10, 2016. Michael Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.427: a. Revise the introductory text in paragraph (a); and b. Add alphabetically the entry “Grape, wine” and footnote 1 to the table in paragraph (a).

    The additions and revisions read as follows:

    § 180.427 Tau-Fluvalinate; tolerances for residues.

    (a) General. Tolerances are established for residues of the insecticide tau-fluvalinate, including its metabolites and degradates, in or on commodities in the table below. Compliance with the specified tolerance level is to be determined by measuring only tau-fluvalinate, (cyano-(3-phenoxyphenyl)methylN-[2-chloro-4-(trifluoromethyl)phenyl]-D-valinate), in or on the commodity.

    Commodity Parts per
  • million
  • Grape, wine 1 1.0 *    *    *    *    * 1 There is no U.S. registration for use of tau-fluvalinate on wine grapes.
    [FR Doc. 2016-29111 Filed 12-2-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0049; FRL-9954-69] Oxathiapiprolin; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of oxathiapiprolin in or on multiple commodities which are identified and discussed later in this document. In addition, this regulation amends the established tolerance for vegetable, tuberous and corm, subgroup 1C; and removes existing tolerances for Brassica, head and stem, subgroup 5A, and leafy greens subgroup 4A that are superseded by this action. Interregional Research Project Number 4 (IR-4), E.I. du Pont de Nemours & Company (DuPont), and Syngenta Crop Protection, LLC (Syngenta) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective December 5, 2016. Objections and requests for hearings must be received on or before February 3, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0049, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0049 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 3, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0049, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-86) and May 19, 2016 (81 FR 31581) (FRL-9946-02), EPA issued documents pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PPs) by DuPont (PP# 5F8435); Interregional Research Project Number 4 (PP# 5E8437) and Syngenta (PP# 5F8441), respectively.

    The petition, 5F8437, requested that 40 CFR 180.685 be amended by establishing tolerances for residues of the fungicide oxathiapiprolin, 1-[4-[4-[5-(2,6-difluorophenyl)-4,5-dihydro-3-isoxazolyl]-2-thiazolyl]-1-piperidinyl]-2-[5-methyl-3-(trifluoromethyl)-1H-pyrazol-1-yl]-ethanone, in or on basil, dried leaves at 80 parts per million (ppm); basil, fresh leaves at 10 ppm; Brassica head and stem vegetable group 5-14 at 1.5 ppm; Brassica leafy greens subgroup 4-14B at 10 ppm; caneberry subgroup 13-07A at 0.5 ppm; leafy greens subgroup 4-14A at 15 ppm; and stalk and stem vegetable subgroup 22A at 2 ppm. The notice of filing for petition, PP# 5E8437, proposed a tolerance for individual crops included in designated crop group/subgroups under a proposed rule, “Tolerance Crop Grouping Program IV” on November 14, 2014 (79 FR 68153). This rule proposed certain revisions to EPA's pesticide tolerance crop grouping regulations. The final rule establishing tolerances for these crop groups/subgroups “Pesticide Tolerance Crop Grouping Program Amendment IV” published on May 3, 2016 (81 FR 26471).

    The Syngenta petition, 5F8441, requested that 40 CFR 180.685 be amended by establishing tolerances for residues of the fungicide oxathiapiprolin, 1-[4-[4-[5-(2,6-difluorophenyl)-4,5-dihydro-3-isoxazolyl]-2-thiazolyl]-1-piperidinyl]-2-[5-methyl-3-(trifluoromethyl)-1H-pyrazol-1-yl]-ethanone, in or on: citrus oil at 2.0 ppm; citrus, pulp at 0.09 ppm; fruit, citrus, group 10-10 at 0.06 ppm; potato, wet peel at 0.07 ppm; and requested revising the existing 0.01 ppm tolerance on vegetable, tuberous and corm, subgroup 1C to 0.04 ppm.

    The Dupont petition, 5F8435, requested that 40 CFR 180.685 be amended by establishing tolerances for residues of the fungicide oxathiapiprolin, 1-[4-[4-[5-(2,6-difluorophenyl)-4,5-dihydro-3-isoxazolyl]-2-thiazolyl]-1-piperidinyl]-2-[5-methyl-3-(trifluoromethyl)-1H-pyrazol-1-yl]-ethanone, in or on: soybean at 0.01 ppm, and sunflower at 0.01 ppm.

    A summary of the petitions prepared by IR4 and the registrants, DuPont and Syngenta, are available in the docket, http://www.regulations.gov. One comment was received on the notice of filings. EPA's response to this comment is discussed in Unit IV.C.

    Based upon review of the data supporting the subject petitions, EPA has revised the proposed tolerance level for certain crops and corrected commodity definitions, as needed, to be consistent with current EPA policy. The reason for these changes are explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the toxicity studies for oxathiapiprolin, no treatment-related effects were seen in any species at doses up to the limit dose (1,000 millgrams/kilogram (mg/kg)/day). No treatment-related effects were seen in subchronic or chronic oral toxicity (rats, mice, or dogs), dermal toxicity, neurotoxicity, or immunotoxicity studies. Additionally, there was no evidence of carcinogenicity in cancer studies with rats or mice. No treatment-related effects were seen in maternal or fetal animals in rat or rabbit developmental toxicity studies. Treatment-related effects were observed in offspring animals in rat reproduction studies (decreased body weight and delayed preputial separation); however, the effects were only observed at doses above the limit dose. Such high doses are not relevant for human health risk. The lack of observed treatment-related oxathiapiprolin toxicity effects is consistent with the low to moderate oral absorption and lack of bioaccumulation reported in the rat metabolism studies. In acute lethality studies, exposure to oxathiapiprolin resulted in low toxicity via the oral, dermal, and inhalation routes of exposure. Oxathiapiprolin was not a dermal or eye irritant, or a skin sensitizer.

    Specific information on the studies received and the nature of the adverse effects caused by oxathiapiprolin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document, “Oxathiapiprolin—New Active Ingredient Human Health Risk Assessment of Uses on Turf, Ornamentals, and a Number of Crops” dated June 25, 2015, in docket ID number EPA-HQ-OPP-2014-0114.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    The majority of the toxicity studies for oxathiapiprolin did not demonstrate treatment-related effects, with the exception of the reproduction study. The effects in the reproduction study were minimal and seen at doses (above the limit dose) not relevant for human exposure. There were no adverse acute or chronic effects identified for any population groups (including infants and children). Therefore, due to the limited toxicity in the oxathiapiprolin toxicological database, toxicity endpoints and points of departure were not selected for oxathiapiprolin exposure scenarios and a quantitative risk assessment was not conducted.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to oxathiapiprolin, EPA considered exposure under the petitioned-for tolerances as well as all existing oxathiapiprolin tolerances in 40 CFR 180.685. There is likely to be dietary exposure to oxathiapiprolin from its use as a pesticide on food. Should exposure occur, however, minimal to no risk is expected for the general population, including infants and children, due to the low toxicity of oxathiapiprolin.

    2. Dietary exposure from drinking water. Exposure to oxathiapiprolin via drinking water from the proposed uses is expected to be minimal due to rapid foliar uptake and limited quantities available in spray drift. No adverse effects were observed in the submitted toxicological studies for oxathiapiprolin regardless of the route of exposure.

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

    Oxathiapiprolin is not proposed or registered for any specific use pattern that would result in residential handler exposure. However, some of the uses could involve commercial application in areas where residential post-application activities could occur (i.e., individuals playing on treated golf courses, commercial landscapes or treated ornamentals purchased at a retail location). Since no adverse effects were observed for oxathiapiprolin in the submitted toxicological studies (regardless of the route of exposure), quantitative residential handler or post-application exposure assessments are not needed.

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found oxathiapiprolin to share a common mechanism of toxicity with any other substances, and oxathiapiprolin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that oxathiapiprolin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at: http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative susceptibility was seen in developmental toxicity studies in rats and rabbits. No treatment related effects were seen in maternal or fetal animals in the studies. However, there was evidence of increased quantitative susceptibility in reproduction studies in rats at doses above the limit dose. Decreased pup weight and delayed sexual maturation (preputial separation) were seen in the studies in the absence of maternal toxicity.

    3. Conclusion. EPA evaluated the available toxicity and exposure data on oxathiapiprolin and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA considers the toxicity database to be complete and has identified no residual uncertainty with regard to prenatal and postnatal toxicity or exposure. No hazard was identified based on the available studies; therefore, EPA concludes that there are no threshold effects of concern to infants, children, or adults from oxathiapiprolin. As a result, EPA concludes that no additional margin of exposure (safety) is necessary.

    E. Aggregate Risks and Determination of Safety

    Taking into account the available data for oxathiapiprolin, EPA has concluded that given the lack of toxicity of this substance, no risks of concern are expected. Therefore, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to oxathiapiprolin.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Method 30422 (Supplement No. 1) was developed for plant commodities, and Method 31138 was developed for livestock commodities. Residues of oxathiapiprolin and associated metabolites are extracted from crop or livestock commodity samples using a solution of formic acid, water and acetonitrile, and diluted with acetonitrile and water. Both methods use liquid chromotography with tandem mass spectrometry (LC/MS/MS), specifically reverse-phase liquid chromatography (LC), and detection by electrospray tandem mass spectrometry (MS/MS).

    The FDA multi-residue methods are not suitable for detection and enforcement of oxathiapiprolin residues or associated metabolites. However, the European Multiresidue Method (DFG Method S19) and the QuEChERS Multiresidue Method have shown success in some matrices.

    Adequate enforcement methodology (LC/MS/MS) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established maximum residue limits (MRLs) for oxathiapiprolin.

    C. Response to Comments

    A comment was received from an anonymous commenter objecting to EPA “approving additional uses of oxathiapiprolin that add to the thousands of existing toxic chemical residues as well as the undetermined synergistic effects these toxicants pose to America's population.” The existing legal framework provided by section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) states that tolerances may be set when the pesticide meets the safety standard imposed by that statute. As required by that statute, EPA conducted a comprehensive assessment of oxathiapiprolin, including its potential for carcinogenicity. Based on its assessment of the available data, the Agency believes that given the observed lack of toxicity of this chemical, no risks of concern are expected. Therefore, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to oxathiapiprolin.

    D. Revisions to Petitioned-For Tolerances

    In the notice of filing for petition 5E8437, the titles of the designated new commodity group and subgroups are as listed in the “Tolerance Crop Grouping Program IV” proposal of November 14, 2014 (79 FR 68153). In the final rule which published on May 3, 2016, “Pesticide Tolerances Crop Grouping Program Amendment IV,” EPA revised the crop group/subgroup titles by roughly retaining the same name and number as the pre-existing group/subgroup, except the number is followed by a hyphen and the final digits of the year established. Hence, the title of the requested “Brassica leafy greens subgroup 4-14B” (due to the May 3, 2016 final rule as noted above) becomes “Brassica leafy greens subgroup 4-16B.” Likewise, the requested “Leafy greens subgroup 4-14A” becomes “Leafy greens subgroup 4-16A;” and the title of the requested “Brassica head and stem vegetable group 5-14” was revised to “Vegetable, Brassica head and stem, group 5-16.”

    To be consistent with current EPA policy, the commodity definitions were corrected for the following crops: vegetable, stalk and stem, subgroup 22A to stalk and stem vegetable subgroup 22A; citrus fruit, crop group 10 10 to fruit, citrus, group 10-10; citrus oil to citrus, oil; citrus pulp to citrus, dried pulp; soybean to soybean, seed; and sunflower to sunflower, seed.

    For certain proposed crop tolerances, the Agency corrected the proposed tolerance levels. For caneberry subgroup 13-07A, the corrected tolerance level includes an additional significant figure (0.50 ppm rather than the proposed 0.5 ppm). This is to avoid the situation where rounding of an observed residue to the level of precision of the tolerance expression would be considered non-violative (such as 0.54 ppm being rounded to 0.5 ppm). For the same reason, the corrected tolerance for stalk and stem vegetable subgroup 22A is 2.0 ppm instead of the proposed 2 ppm.

    V. Conclusion

    Therefore, tolerances are established for residues of the fungicide oxathiapiprolin, 1-[4-[4-[5-(2,6-difluorophenyl)-4,5-dihydro-3-isoxazolyl]-2-thiazolyl]-1-piperidinyl]-2-[5-methyl-3-(trifluoromethyl)-1H-pyrazol-1-yl]-ethanone, in or on basil, dried leaves at 80 ppm; basil, fresh leaves at 10 ppm; Brassica leafy greens subgroup 4-16B at 10 ppm; caneberry subgroup 13-07A at 0.50 ppm; leafy greens subgroup 4-16A at 15 ppm; citrus, dried pulp at 0.09 ppm; citrus, oil at 2.0 ppm; fruit, citrus, group 10-10 at 0.06 ppm; potato, wet peel at 0.07 ppm; soybean, seed at 0.01 ppm; stalk and stem vegetable subgroup 22A at 2.0 ppm; sunflower, seed at 0.01 ppm and vegetable, Brassica, head and stem, group 5-16 at 1.5 ppm. The existing 0.01 ppm tolerance on vegetable, tuberous and corm, subgroup 1C is revised to 0.04 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: November 10, 2016. Michael Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. Amend the table in § 180.685(a)(1) as follows: a. Remove the entries for “Brassica, head and stem, subgroup 5A”; and “Leafy greens subgroup 4A”; b. Revise the entry for “Vegetable, tuberous and corm, subgroup 1C”; and c. Add alphabetically the entries for “Basil, dried leaves”; “Basil, fresh leaves”; “Brassica leafy greens subgroup 4-16B”; “Caneberry subgroup 13-07A”; “Citrus, dried pulp”; “Citrus, oil”; “Fruit, citrus, group 10-10”; “Leafy greens subgroup 4-16A”; “Potato, wet peel”; “Soybean, seed”; “Stalk and stem vegetable subgroup 22A”; “Sunflower, seed” and “Vegetable, Brassica head and stem, group 5-16”.

    The revisions and additions read as follows:

    § 180.685 Oxathiapiprolin; tolerances for residues.

    (a) * * *

    (1) * * *

    Commodity Parts per
  • million
  • Basil, dried leaves 80 Basil, fresh leaves 10 Brassica leafy greens subgroup 4-16B 10 Caneberry subgroup 13-07A 0.50 Citrus, dried pulp 0.09 Citrus, oil 2.0 Fruit, citrus, group 10-10 0.06 *         *         *         *         *         *         * Leafy greens subgroup 4-16A 15 *         *         *         *         *         *         * Potato, wet peel 0.07 Soybean, seed 0.01 Stalk and stem vegetable subgroup 22A 2.0 Sunflower, seed 0.01 *         *         *         *         *         *         * Vegetable, Brassica head and stem, group 5-16 1.5 *         *         *         *         *         *         * Vegetable, tuberous and corm, subgroup 1C 0.04
    [FR Doc. 2016-29109 Filed 12-2-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket ID FEMA-2016-0002; Internal Agency Docket No. FEMA-8459] Suspension of Community Eligibility AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA's Community Status Book (CSB). The CSB is available at https://www.fema.gov/national-flood-insurance-program-community-status-book.

    DATES:

    The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.

    FOR FURTHER INFORMATION CONTACT:

    If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Patricia Suber, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW., Washington, DC 20472, (202) 646-4149.

    SUPPLEMENTARY INFORMATION:

    The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

    In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

    Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

    National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not apply.

    Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

    Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

    Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

    Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

    Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    List of Subjects in 44 CFR Part 64

    Flood insurance, Floodplains.

    Accordingly, 44 CFR part 64 is amended as follows:

    PART 64—[AMENDED] 1. The authority citation for part 64 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376.

    § 64.6 [Amended]
    2. The tables published under the authority of § 64.6 are amended as follows: State and location Community No. Effective date authorization/cancellation of
  • sale of flood insurance in community
  • Current effective
  • map date
  • Date certain
  • Federal
  • assistance no
  • longer available in SFHAs
  • Region III Pennsylvania: Annin, Township of, McKean County 421850 August 7, 1974, Emerg; August 1, 1987, Reg; December 22, 2016, Susp. December 22, 2016 December 22, 2016. Bradford, City of, McKean County 420665 April 15, 1974, Emerg; September 16, 1981, Reg; December 22, 2016, Susp. ......do *   Do. Bradford, Township of, McKean County 422245 July 2, 1974, Emerg; September 16, 1981, Reg; December 22, 2016, Susp. ......do   Do. Ceres, Township of, McKean County 421853 August 6, 1974, Emerg; September 18, 1987, Reg; December 22, 2016, Susp. ......do   Do. Corydon, Township of, McKean County 422473 April 23, 1976, Emerg; March 1, 1987, Reg; December 22, 2016, Susp. ......do   Do. Eldred, Borough of, McKean County 420666 August 1, 1973, Emerg; September 3, 1980, Reg; December 22, 2016, Susp. ......do   Do. Foster, Township of, McKean County 421855 July 23, 1974, Emerg; November 18, 1981, Reg; December 22, 2016, Susp. ......do   Do. Hamilton, Township of, McKean County 421856 April 29, 1975, Emerg; March 1, 1987, Reg; December 22, 2016, Susp. ......do   Do. Hamlin, Township of, McKean County 421857 August 1, 1974, Emerg; March 1, 1987, Reg; December 22, 2016, Susp. ......do   Do. Lafayette, Township of, McKean County 421858 May 23, 1975, Emerg; June 30, 1976, Reg; December 22, 2016, Susp. ......do   Do. Liberty, Township of, McKean County 420668 August 24, 1973, Emerg; September 1, 1977, Reg; December 22, 2016, Susp. ......do   Do. Norwich, Township of, McKean County 421859 December 19, 1974, Emerg; July 1, 1987, Reg; December 22, 2016, Susp. ......do   Do. Otto, Township of, McKean County 421860 April 8, 1977, Emerg; June 1, 1987, Reg; December 22, 2016, Susp. ......do   Do. Port Allegany, Borough of, McKean County 420671 June 1, 1973, Emerg; June 15, 1979, Reg; December 22, 2016, Susp. ......do   Do. Sergeant, Township of, McKean County 422474 August 5, 1975, Emerg; July 3, 1985, Reg; December 22, 2016, Susp. ......do   Do. Smethport, Borough of, McKean County 420672 June 29, 1973, Emerg; April 17, 1978, Reg; December 22, 2016, Susp. ......do   Do. Region IV Florida: Auburndale, City of, Polk County 120262 September 26, 1974, Emerg; May 11, 1979, Reg; December 22, 2016, Susp. ......do   Do. Bartow, City of, Polk County 120263 June 18, 1975, Emerg; December 16, 1980, Reg; December 22, 2016, Susp. ......do   Do. Davenport, City of, Polk County 120410 March 1, 1976, Emerg; December 2, 1980, Reg; December 22, 2016, Susp. ......do   Do. Dundee, Town of, Polk County 120409 February 19, 1976, Emerg; November 19, 1980, Reg; December 22, 2016, Susp. ......do   Do. Fort Meade, City of, Polk County 120264 June 13, 1975, Emerg; November 5, 1980, Reg; December 22, 2016, Susp. ......do   Do. Frostproof, City of, Polk County 120265 May 2, 1975, Emerg; May 1, 1980, Reg; December 22, 2016, Susp. ......do   Do. Haines City, City of, Polk County 120266 May 28, 1975, Emerg; September 16, 1981, Reg; December 22, 2016, Susp. ......do   Do. Lake Alfred, City of, Polk County 120667 N/A, Emerg; September 24, 2003, Reg; December 22, 2016, Susp. ......do   Do. Lake Hamilton, Town of, Polk County 120414 March 23, 1976, Emerg; November 5, 1980, Reg; December 22, 2016, Susp. ......do   Do. Lake Wales, City of, Polk County 120390 November 4, 1982, Emerg; March 16, 1988, Reg; December 22, 2016, Susp. ......do   Do. Lakeland, City of, Polk County 120267 June 26, 1975, Emerg; September 16, 1981, Reg; December 22, 2016, Susp. ......do   Do. Mulberry, City of, Polk County 120268 July 19, 1974, Emerg; February 4, 1981, Reg; December 22, 2016, Susp. ......do   Do. Polk City, City of, Polk County 120665 N/A, Emerg; March 22, 2005, Reg; December 22, 2016, Susp. ......do   Do. Polk County, Unincorporated Areas 120261 September 1, 1977, Emerg; January 19, 1983, Reg; December 22, 2016, Susp. ......do   Do. Tennessee: Brentwood, City of, Williamson County 470205 March 23, 1973, Emerg; February 1, 1978, Reg; December 22, 2016, Susp. ......do   Do. Cheatham County, Unincorporated Areas 470026 September 27, 1974, Emerg; May 19, 1981, Reg; December 22, 2016, Susp. ......do   Do. Dickson County, Unincorporated Areas 470046 June 18, 1982, Emerg; June 15, 1984, Reg; December 22, 2016, Susp. ......do   Do. Fairview, City of, Williamson County 470242 August 18, 1986, Emerg; September 1, 1990, Reg; December 22, 2016, Susp. ......do   Do. Franklin, City of, Williamson County 470206 September 25, 1974, Emerg; July 2, 1980, Reg; December 22, 2016, Susp. ......do   Do. Kingston Springs, Town of, Cheatham County 470289 June 11, 1984, Emerg; June 11, 1984, Reg; December 22, 2016, Susp. ......do   Do. Pegram, Town of, Cheatham County 470291 April 9, 1987, Emerg; April 9, 1987, Reg; December 22, 2016, Susp. ......do   Do. Williamson County, Unincorporated Areas 470204 May 27, 1975, Emerg; April 1, 1981, Reg; December 22, 2016, Susp. ......do   Do. Region VII Kansas: Andale, City of, Sedgwick County 200322 August 15, 1975, Emerg; June 11, 1976, Reg; December 22, 2016, Susp. ......do   Do. Bel Aire, City of, Sedgwick County 200864 February 15, 1985, Emerg; March 15, 1987, Reg; December 22, 2016, Susp. ......do   Do. Belle Plaine, City of, Sumner County 200466 July 25, 1975, Emerg; July 17, 1978, Reg; December 22, 2016, Susp. ......do   Do. Bentley, City of, Sedgwick County 200390 N/A, Emerg; August 12, 2009, Reg; December 22, 2016, Susp. ......do   Do. Cheney, City of, Sedgwick County 200478 N/A, Emerg; November 30, 2005, Reg; December 22, 2016, Susp. ......do   Do. Clearwater, City of, Sedgwick County 200482 March 29, 1976, Emerg; August 15, 1980, Reg; December 22, 2016, Susp. ......do   Do. Colwich, City of, Sedgwick County 200484 January 14, 1976, Emerg; July 11, 1978, Reg; December 22, 2016, Susp. ......do   Do. Derby, City of, Sedgwick County 200323 January 17, 1975, Emerg; October 15, 1981, Reg; December 22, 2016, Susp. ......do   Do. Garden Plain, City of, Sedgwick County 200498 October 28, 1976, Emerg; September 18, 1985, Reg; December 22, 2016, Susp. ......do   Do. Kechi, City of, Sedgwick County 200429 August 3, 1979, Emerg; August 15, 1980, Reg; December 22, 2016, Susp. ......do   Do. Maize, City of, Sedgwick County 200520 N/A, Emerg; December 24, 2002, Reg; December 22, 2016, Susp. ......do   Do. Mount Hope, City of, Sedgwick County 200325 August 26, 1975, Emerg; June 27, 1978, Reg; December 22, 2016, Susp. ......do   Do. Park City, City of, Sedgwick County 200963 May 28, 1982, Emerg; November 19, 1986, Reg; December 22, 2016, Susp. ......do   Do. Valley Center, City of, Sedgwick County 200327 May 29, 1975, Emerg; January 14, 1977, Reg; December 22, 2016, Susp. ......do   Do. Wichita, City of, Sedgwick County 200328 March 24, 1972, Emerg; May 15, 1986, Reg; December 22, 2016, Susp. ......do   Do. Region IX Nevada: Carson City, City of, Independent City 320001 August 6, 1975, Emerg; March 4, 1986, Reg; December 22, 2016, Susp. ......do   Do. *-do- = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.
    Dated: November 21, 2016. Michael M. Grimm, Assistant Administrator for Mitigation, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency.
    [FR Doc. 2016-29033 Filed 12-2-16; 8:45 am] BILLING CODE 9110-12-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket ID FEMA-2016-0002; Internal Agency Docket No. FEMA-8457] Suspension of Community Eligibility AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA's Community Status Book (CSB). The CSB is available at https://www.fema.gov/national-flood-insurance-program-community-status-book.

    DATES:

    The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.

    FOR FURTHER INFORMATION CONTACT:

    If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Patricia Suber, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW., Washington, DC 20472, (202) 646-4149.

    SUPPLEMENTARY INFORMATION:

    The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

    In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

    Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

    National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not apply.

    Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

    Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

    Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

    Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

    Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    List of Subjects in 44 CFR Part 64

    Flood insurance, Floodplains.

    Accordingly, 44 CFR part 64 is amended as follows:

    PART 64—[AMENDED] 1. The authority citation for part 64 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376.

    § 64.6 [Amended]
    2. The tables published under the authority of § 64.6 are amended as follows: State and location Community
  • No.
  • Effective date authorization/cancellation of
  • sale of flood insurance in community
  • Current effective
  • map date
  • Date certain
  • Federal
  • assistance no
  • longer available
  • in SFHAs
  • Region IV Georgia: Monroe, City of, Walton County 130227 March 26, 1975, Emerg; February 16, 1990, Reg; December 8, 2016, Susp. Dec. 8, 2016 Dec. 8, 2016 Region V Indiana: Brown County, Unincorporated Areas. 185174 October 22, 1971, Emerg; April 13, 1973, Reg; December 8, 2016, Susp. ......do *   Do. Nashville, Town of, Brown County 180018 October 22, 1971, Emerg; January 24, 1976, Reg; December 8, 2016, Susp. ......do   Do. Wisconsin: Boaz, Village of, Richland County. 550357 November 28, 1975, Emerg; September 6, 1989, Reg; December 8, 2016, Susp. ......do   Do. Lone Rock, Village of, Richland County 550359 July 7, 1975, Emerg; September 29, 1986, Reg; December 8, 2016, Susp. ......do   Do. Richland Center, City of, Richland County 555576 March 19, 1971, Emerg; June 1, 1973, Reg; December 8, 2016, Susp. ......do   Do. Richland County, Unincorporated Areas 550356 June 16, 1975, Emerg; September 27, 1991, Reg; December 8, 2016, Susp. ......do   Do. Viola, Village of, Richland and Vernon Counties 550460 December 5, 1974, Emerg; June 4, 1990, Reg; December 8, 2016, Susp. ......do   Do. Yuba, Village of, Richland County 550362 August 25, 1975, Emerg; July 1, 1987, Reg; December 8, 2016, Susp. ......do   Do. Region X Oregon: Albany, City of, Linn and Benton Counties. 410137 July 2, 1974, Emerg; April 3, 1985, Reg; December 8, 2016, Susp. ......do   Do. Benton County, Unincorporated Areas 410008 April 18, 1974, Emerg; August 5, 1986, Reg; December 8, 2016, Susp. ......do   Do. Linn County, Unincorporated Areas 410136 April 9, 1974, Emerg; September 29, 1986, Reg; December 8, 2016, Susp. ......do   Do. Millersburg, City of, Linn County 410284 July 21, 1982, Emerg; July 21, 1982, Reg; December 8, 2016, Susp. ......do   Do. * do = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.
    Dated: November 21, 2016. Michael M. Grimm, Assistant Administrator for Mitigation, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency.
    [FR Doc. 2016-29036 Filed 12-2-16; 8:45 am] BILLING CODE 9110-12-P
    SURFACE TRANSPORTATION BOARD 49 CFR Part 1250 [Docket No. EP 724 (Sub-No. 4)] United States Rail Service Issues—Performance Data Reporting AGENCY:

    Surface Transportation Board.

    ACTION:

    Final rule.

    SUMMARY:

    The Surface Transportation Board (STB or Board) is adopting a final rule to establish new regulations requiring all Class I railroads and the Chicago Transportation Coordination Office (CTCO), through its Class I members, to report certain service performance metrics on a weekly, semiannual, and occasional basis.

    DATES:

    This rule is effective on January 29, 2017. The initial reporting date will be February 8, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Fancher at (202) 245-0355. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    The Board initiated this rulemaking proceeding in response to the service problems that began to emerge in the railroad industry in late 2013. Those service problems affected the transportation of a wide range of commodities, including grain, fertilizer, ethanol, coal, automobiles, chemicals, propane, consumer goods, crude oil, and industrial commodities.

    In response to the service challenges, the Board held two public hearings, in April 2014 in Washington, DC, and in September 2014 in Fargo, ND, to allow interested persons to report on service problems, to hear from rail industry executives on plans to address rail service problems, and to explore options to improve service. During and after these hearings, parties expressed concerns about the lack of publicly available information related to rail service and requested access to performance data from the railroads to better understand the scope, magnitude, and impact of the service issues,1 as well as the underlying causes and the prospects for recovery.

    1See generally National Grain and Feed Association Letter, U.S. Rail Serv. Issues, EP 724 (filed May 6, 2014); Western Coal Traffic League Letter, U.S. Rail Serv. Issues, EP 724 (filed Apr. 17, 2014); Apr. Hr'g Tr. 154-155, U.S. Rail Serv. Issues, EP 724 (Apr. 10, 2014); Western Coal Traffic League Statement 5-6, U.S. Rail Serv. Issues, EP 724 (filed Sept. 5, 2014); Sept. Hr'g Tr. 48, 290, U.S. Rail Serv. Issues, EP 724 (Sept. 4, 2014).

    Based on these concerns and to better understand railroad operating conditions, the Board issued an order on October 8, 2014, requiring all Class I railroads and the Class I railroad members of the CTCO to file weekly reports containing specific service performance data. See U.S. Rail Serv. Issues—Data Collection (Interim Data Order), EP 724 (Sub-No. 3) (STB served Oct. 8, 2014).2 Railroads were asked to report weekly average train speeds, weekly average terminal dwell times, weekly average cars online, number of trains held short of destination, and loading metrics for grain and coal service, among other information. The data were intended to give both the Board and its stakeholders access to current information about the operations and performance of the Class I railroads and the fluidity of the Chicago gateway. In addition, the data were expected to assist rail shippers in making logistics decisions, planning operations and production, and mitigating potential losses.

    2 On motion of Canadian Pacific Railway Company, the Board modified the Interim Data Order by decision served on February 23, 2016, to allow it to discontinue reporting data related to the Rapid City, Pierre & Eastern Railroad, Inc.

    On October 22, 2014, the Class I railroads and the Association of American Railroads (on behalf of the CTCO) filed the first set of weekly reports in response to the Interim Data Order. As requested by the Board, each carrier provided an explanation of its methodology for deriving performance data in response to each request. Generally, the reports corresponded to the elements of the Interim Data Order; however, some railroads approach individual requests differently, leading to variations in the reported data. The different approaches are due primarily to the railroads' disparate data-keeping systems, different railroad operating practices, and/or unintended ambiguities in certain requests. Certain railroads have also departed from the Board's prescribed reporting in order to maintain consistency with their own weekly data runs and analyses.

    The weekly filings have allowed the Board and its stakeholders to monitor the industry's performance and have allowed the Board to develop baseline data. Based on the Board's experience with the reporting to date, and as expressly contemplated in the Interim Data Order, the Board proposed new regulations for permanent reporting by the members of the Class I railroad industry and the CTCO, through its Class I members. See U.S. Rail Serv. Issues—Performance Data Reporting (NPR), EP 724 (Sub-No. 4) (STB served Dec. 30, 2014).

    The proposed reporting requirements in the NPR included many of the requests contained in the Interim Data Order. The NPR proposed nine weekly metrics that would apply to Class I railroads: (1) System average train speed; (2) weekly average terminal dwell time; (3) weekly average cars online; (4) weekly average dwell time at origin and interchange; (5) weekly total number of loaded and empty trains held short of destination or scheduled interchange; (6) daily average number of loaded and empty cars operating in normal movement which have not moved in specified periods of time; (7) weekly total number of grain cars loaded and billed, by state; (8) for grain cars, the total overdue car orders, average days late, total new grain car orders in the past week, total orders filled in the past week, and number of orders cancelled in the past week; and (9) weekly total coal unit train loadings or carloadings by region. The NPR also proposed metrics pertaining to service in Chicago as well as reporting on major rail infrastructure projects. Finally, the NPR proposed to exempt Kansas City Southern Railway Company from filing state-specific information in response to Request Nos. 7 and 8, due to the nature of its grain business and its very limited number of customers in a small number of states in its service territory.

    Following receipt of comments in response to the NPR, the Board issued an order announcing that it would waive its ex parte communications rules in order to allow Board staff to hold meetings with interested parties to develop a more complete record with regard to technical issues in this proceeding. See U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4) (STB served Nov. 9, 2015) (with Board Member Begeman concurring in part). Following the meetings, the Board posted a summary of each meeting in this docket and then parties provided additional comments on the summaries. As a result of the comments and meetings, the Board issued a supplemental notice of proposed rulemaking. See U.S. Rail Serv. Issues—Performance Data Reporting (SNPR), EP 724 (Sub-No. 4) (STB served Apr. 29, 2016), corrected, (STB served May 13, 2016). The SNPR proposed changes to six of the proposed reporting metrics in the NPR (Request Nos. 1, 4, 5, 6, 8, and 9), modifications to the reporting week and definition of a unit train, and the addition of three new metrics (Request Nos. 10, 11, and 12) (grain shuttle/dedicated grain trips per month, weekly originated carloads by commodity, and car order fulfillment percentage for 10 car types). See SNPR, slip op. at 24-26. With regard to Request No. 7 and No. 8, KCS was not required to report information by state, but instead only system-wide data. See NPR, slip op. at 7; SNPR, slip op. at 28.

    In response to the SNPR, the invitation for stakeholder meetings, and the NPR, the Board received a significant volume of comments and proposals from stakeholders. We have carefully reviewed those comments, proposals, and meeting summaries in order to identify both general themes regarding service reporting and better technical methods for collecting information.

    The primary purpose of this rulemaking has been to develop a set of performance data that will allow the agency to monitor current service conditions in the industry and to identify trends or aberrations, which may indicate problems. The cumulative data will give the Board reference points for measuring an individual railroad against its past performance. A corollary benefit is that shippers and other stakeholders will have access to the reported data to assist in their business decisions and supply-chain planning. At the same time, the Board has sought to make sure that any rule adopted regarding service data results in the collection of information that will be useful to the agency and its stakeholders. The Board believes that the final rule adopted here is an appropriate balance of considerations that will provide helpful information to both the agency and the public.

    These rules will be effective on January 29, 2017. Carriers will begin reporting on Wednesday, February 8, 2017.3 The data required under 49 CFR 1250.2 and 1250.3(a) must be emailed to [email protected], in Microsoft Excel or other format specified by the Board's Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). The narrative data required under 49 CFR 1250.3(b) and 1250.4 must be reported to the Director of OPAGAC and emailed to [email protected] Any updates to the method and form for reporting data will be posted on the Board's Web site.

    3 With the adoption of these final rules, the Board is concurrently issuing a decision in U.S. Rail Service Issues, Docket No. EP 724 and U.S. Rail Service Issues—Data Collection, Docket No. EP 724 (Sub-No. 3), which will terminate those proceedings and terminate reporting under the Interim Data Order. To maintain continuity in data collected by the Board, reporting under the Interim Data Order will conclude on Wednesday, February 1, 2017.

    Discussion of Issues Raised in Response to the SNPR

    The following parties provided comments in this proceeding, either in the form of written comments or oral comments during the ex parte meetings that were then summarized and posted by the Board, or both:

    Alliance for Rail Competition et al.; American Chemistry Council; Association of American Railroads (AAR); BASF Corporation; BNSF Railway Company (BNSF); Canadian Pacific Railway Company (CP); Chicago Metropolitan Agency for Planning (CMAP); CSX Transportation, Inc. (CSXT); Freight Rail Customer Alliance; Highroad Consulting, Ltd. (HRC); Kansas City Southern Railway Company (KCS); Thomas F. McFarland and Gordon P. MacDougall; National Corn Growers Association; National Grain and Feed Association (NGFA); National Industrial Transportation League (NITL); Norfolk Southern Railway Company (NSR); South Dakota Corn Growers Association; The Fertilizer Institute (TFI); Texas Trading and Transportation Services, LLC, et al.; Union Pacific Railway Company (UP); U.S. Department of Agriculture; U.S. Department of Transportation; and Western Coal Traffic League, et al. (WCTL). The Honorable John Thune, Chairman, Senate Committee on Commerce, Science, and Transportation, submitted comments in this proceeding as well.

    Below we generally summarize the comments received on the SNPR, 4 and explain the changes being adopted in this final rule. Although not all comments and recommendations will be adopted, all of the many comments parties have submitted were carefully reviewed and considered in deciding on the final rule.

    4 Comments on the NPR and meeting summaries were summarized in the preamble to the SNPR.

    Board Authority

    AAR's position is that the Board should state a valid regulatory purpose for the rule before adding to the cumulative regulatory burden on the railroads. (AAR SNPR Comments 5.) AAR argues that the rules are not necessary for improving rail service, expressing the view that rail service improved in 2013-2014 “because of efforts of railroads to serve their customers.” (Id. at 6.) Finally, AAR asserts that the SNPR “does not articulate how the proposed rules would be useful in carrying out the specific statutory provisions the Board cites” and argues that each statutory provision requires “particularized findings related to the specific transportation at issue beyond the proposed data collection.” (Id.)

    As the Board stated in the SNPR, “the need and justification for a permanent reporting rule is clear.” Slip op. at 22. Under the Interstate Commerce Act, the Board has broad authority to require reports by rail carriers under 49 U.S.C. 1321, 11145. The statute also makes clear that service adequacy is a key part of the Board's mandate, beginning with the provisions of the rail transportation policy (RTP) of 49 U.S.C. 10101. See SNPR, slip op. at 22. The RTP states that, in regulating the railroad industry, it is policy of the United States Government to minimize the need for regulatory control, 49 U.S.C. 10101(2), promote a safe and efficient rail transportation system, 49 U.S.C. 10101(3), ensure the development of a sound rail transportation system to meet the needs of the public, 49 U.S.C. 10101(3), and encourage efficient management of railroads, 49 U.S.C. 10101(9). The Board finds that having data that will allow it to monitor service across the rail network advances these RTP goals. The data will help promote the RTP by allowing the agency, as well as shippers and other stakeholders, to more quickly identify and react to service issues than it would otherwise have the ability to do.

    As also explained in the SNPR, slip op. at 22, the Board has the responsibility for monitoring the adequacy of service under specific statutory provisions, including service emergencies under 49 U.S.C. 11123. The Board's powers under section 11123 are extensive 5 and can be initiated by the agency. The potential triggers for Board action, such as “congestion of traffic” and “other failure of traffic movement” (49 U.S.C. 11123(a)), are clearly implicated by the collection of service metrics, and the Board has explained that reporting would “improve the Board's ability to identify and help resolve future regional or national service disruptions more quickly.” SNPR, slip op. at 22. Service issues can also be relevant when the Board considers whether railroad service practices are reasonable (49 U.S.C. 10702), whether to force a line sale in the event of inadequate service (49 U.S.C. 10907), and whether railroads are fulfilling their common carrier obligations (49 U.S.C. 11101) or providing safe and adequate car service (49 U.S.C. 11121). See SNPR, slip op. at 22 (explaining that “permanent reporting . . . would aid the Board and industry stakeholders in identifying whether railroads are adequately meeting those statutory requirements.”). Accordingly, we disagree with AAR's suggestion that the Board has not articulated a justification for the data's usefulness.

    5 When requisite statutory criteria are met, the Board can (1) direct the handling, routing, and movement of the traffic of a rail carrier and its distribution over its own or other railroad lines; (2) require joint or common use of railroad facilities; (3) prescribe temporary through routes; (4) give directions for—(A) preference or priority in transportation; (B) embargoes; or (C) movement of traffic under permits. See 49 U.S.C. 11123.

    The Board also finds no merit to the AAR's suggestion that the data reporting would be unhelpful in determining if some of the statutory provisions listed by the Board are met. The AAR argues that these statutory provisions require “particularized findings” that would necessitate more granular information than would be provided for by the reported data. However, even if more granular information would be required for the Board to act in a particular circumstance, the Board has explained that the reporting will assist it in determining whether to request more granular data or information. SNPR, slip op. at 22. Likewise, AAR's suggestion that baseline service metrics would be “irrelevant” in common carrier or forced sale-cases limits—in advance—what service information shippers and carriers would find probative in such cases.6

    6 As noted above, AAR expresses its opinion that increased service quality after the 2013-2014 crisis was due to “efforts of railroads to serve their customers.” (AAR SNPR Comments 6.) However, the Board need not find that the interim service reporting caused service improvements to justify the permanent collection of service data, which will facilitate the Board's ability to monitor performance and respond to issues in the event of future service disruptions.

    The Board believes that the long-term utility of the data collection in this final rule outweighs the additional burden placed on the rail industry. It will also help promote the RTP as outlined above.

    Other Recommendations/General Comments

    Railroad Interests. The railroads generally oppose metrics focused on particular commodities, train types, or geographic regions. AAR reiterates that a few “macro-level reporting metrics would best serve the Board's goals of maintaining access to information . . . while balancing the burdens imposed on railroads.” (AAR SNPR Comments 2.) As such, AAR advocates that the Board's final rule be based on macro-level data that is presently reported to the AAR. It asserts that such macro-level metrics best reflect trends and relative changes in service performance while granular reporting is confusing, potentially misleading, and less useful for comparisons over time. (Id.) AAR also states that shipper groups have failed to explain how they actually use the data. (AAR SNPR Reply 2-3.) Finally, AAR warns that the Board “should be aware that this data inevitably will be . . . cited to the Board as evidence that one railroad is underperforming its peers regardless of whether that conclusion is correct.” (Id. at 3.)

    NSR agrees that service performance metrics tailored to specific commodities may create a misleading picture of overall service and asserts that the burdens of such reporting outweigh the benefits. (NSR SNPR Comments 3.) UP and CP likewise assert that the final rule should only include network-specific metrics. (CP SNPR Comments 2; UP SNPR Comments 2-3.) UP asserts that the more detailed metrics are too narrow to provide more meaningful information, and can be required based on service issues. (UP SNPR Comments 2-3.) In addition, UP again opposes NGFA's request for additional grain reporting. (UP SNPR Reply 1-3.).7

    7 UP also asked the Board to discontinue its annual request for a peak season letter, as it would be unnecessary if the Board begins collecting data pursuant to this final rule. (UP SNPR Comments 13.) Chairman Elliott announced in August 2016 that the Board was discontinuing the end-of-year letters, citing, among other things, the weekly collection of service performance reports that the Board began collecting pursuant to the Interim Data Order. Press Release, Surface Transportation Board, STB Chairman Daniel R. Elliott III Discontinues Annual Letter to Rail Industry Seeking End-of-Year Outlook (Aug. 22, 2016), https://www.stb.gov/stb/news/news_releases.html (follow “date of issuance within the current year” or “prior to the current year” hyperlink, as appropriate to access 2016 press releases; then follow “8/22/2016” hyperlink).

    Shipper Interests and Other Stakeholders. NGFA disagrees with the Board's statement in the SNPR that “the burden of more granular metrics [than those proposed in the SNPR] outweigh(s) their value as a tool for identifying regional or national system-wide problems” and argues that the Board must instead increase the granularity of the rail service performance data it collects. (NGFA SNPR Comments 3, 3-5.) NGFA asserts that the Board should “consider the benefits of some additional specific data to rail customers in monitoring service, given the diverse and differing rail transportation service that applies to different types of grain-based agricultural products.” (Id. at 3.) NGFA cites findings made in a 2015 National Academy of Sciences/Transportation Research Board report and a 2008 Laurits R. Christensen Associates Inc. report 8 while arguing that: (1) The data the Board proposes to collect are too aggregated to provide meaningful insights into service quality; (2) system-wide performance data is less useful to shippers than data based on route, corridor, or commodity, which are important for identifying and rectifying service issues; and (3) variability in service, which tended to be greater in grain and coal units, can be more costly and problematic than absolute service levels. (Id. at 4-5.)

    8See Transp. Research Bd. of the Nat'l Acad, Modernizing Freight Rail Regulation, 48-56 (2015); Laurits R. Christensen Associates, A Study of Competition in the U.S. Freight Railroad Industry and Analysis of Proposals that Might Enhance Competition, ES-35 to ES-37 (2009), https://www.stb.gov/stb/docs/competitionstudy/executive%20summary.pdf.

    Final Rule. As noted above, the Board's objective in the proceeding is to obtain weekly data that allows the agency to monitor the railroad industry's current performance and to build a data set that will allow the Board to observe trends and make comparisons against past performance. The set of requests being adopted today advances these objectives and strikes an appropriate balance of augmenting the Board's ability to better monitor rail service trends without burdening railroads with excessive reporting requirements. The Board is thus declining to either adopt the railroad industry's request to alter the reporting to the “macro level” data presently reported to AAR or to adopt, for the most part,9 the shippers' requests for additional “granular” data covering discrete subsets of traffic, specific corridors, or local operations.

    9 As explained in greater detail below, the Board will add some granularity to the required reporting by requiring certain fertilizer carload reporting.

    Reporting Week and Timing

    The SNPR proposes defining the reporting week as 12:01 a.m. Saturday to 11:59 p.m. Friday with reports due the following Wednesday.

    Railroad Interests. The railroads generally agree with the proposal in the SNPR, with one exception. AAR urges the Board to modify its proposed reporting week for Request No. 11 (weekly carloadings) to conform to the reporting week that railroads have historically used to report the same data to AAR. “That data has been based on a week ending at 11:59 p.m. Saturday, which permits the weekly report to capture most of the traffic originated during the week by customers who complete their car loading activities by Friday at close of business.” (AAR SNPR Comments 7.) AAR notes that it has identified no compelling reason why the weekly carloadings data must match the other service metrics. (Id.)

    In response to NGFA's criticisms of the Wednesday reporting day, AAR states that NGFA provides no support for its assertion that a Monday reporting day is essential. (AAR SNPR Reply 2.) UP also states that it needs until Wednesday afternoon to capture, validate, analyze/process, and compile the information from different sources that goes into its reports. (UP SNPR Reply 3-4.)

    Shipper Interests and Other Stakeholders. NITL does not oppose the SNPR's proposed reporting week. (NITL SNPR Comments 2-3.) NGFA also does not oppose the proposed reporting week, but urges the Board to require the weekly reports be filed no later than Monday. (NGFA SNPR Comments 7.)

    Final Rule. Except with respect to Request No. 11 (weekly carloadings), the Board will adopt the reporting week and reporting day proposed in the SNPR as the final rule. The 12:01 a.m. Saturday to 11:59 p.m. Friday reporting week comports with the railroad industry's internal reporting practices. Allowing railroads to report data on Wednesday gives them sufficient opportunity to collect, review, and assemble the data prior to submission. For purposes of Request No. 11, and consistent with AAR's suggestion, the Board will modify the reporting week proposed in the SNPR to 12:01 a.m. Sunday to 11:59 p.m. Saturday with a Wednesday reporting day. This is consistent with how the industry has historically reported and currently reports weekly carloadings to AAR. The Board does not foresee any issue with the fact that this metric would cover a different weekly period (by one day) than the other metrics.

    Definition of Unit Train

    The SNPR proposes that, rather than having a single definition for unit train, each carrier be allowed to report unit train data based on how it assigns train symbols (or codes) in accordance with its own business practices.

    Railroad Interests. Railroad interests generally support the SNPR's definition of unit train, stating that “it will ensure that data collected matches railroads' and their customers' understanding of the traffic.” (AAR SNPR Comments 4; see also UP SNPR Comments 1-2; BNSF SNPR Comments 2.)

    Shipper Interests and Other Stakeholders. Shipper interests generally do not oppose the definition of unit train proposed in the SNPR. (NGFA SNPR Comments 7; NITL SNPR Comments 2-3.) However, they ask that the Board draw special attention to the definitions of unit train on its Web site to offer clear guidance on how each railroad defines unit train. (NGFA SNPR Comments 7; NITL SNPR Comments 2-3.) NGFA also requests that the Board require each carrier to provide updates if and when it changes its unit train definition. (NGFA SNPR Comments 7.)

    Final Rule. The Board will adopt the SNPR proposal for defining a unit train as the final rule. In their initial filings under the final rule, the Board will require railroads to explain their practices of making “unit train” designations in the ordinary course of business. This information will be accessible to the public on the Board's Web site with other service performance data, so that the public will understand how each carrier is defining “unit train.” Railroads will also be required to inform the Board if their practices change in the future, by electronically submitting to OPAGAC a written explanation of the change at the time it goes into effect. The Board's Web site will be updated accordingly.

    Request No. 1 (Train Speed), No. 2 (Terminal Dwell Time), and No. 3 (Cars Online)

    For Request No. 1, the SNPR proposes requiring carriers to provide system-average train speed, measured for line-haul movements between terminals and calculated by dividing total train-miles by total hours operated, for: (a) Intermodal; (b) grain unit; (c) coal unit; (d) automotive unit; (e) crude oil unit; (f) ethanol unit; (g) manifest; (h) fertilizer unit; and (i) system. The SNPR modifies the proposal in the NPR by adding categories for “fertilizer unit” and “system” and removing the category for “all other.”

    For Request No. 2, the SNPR proposes requiring carriers to provide weekly average terminal dwell time for each carrier's system and its 10 largest terminals. For Request No. 3, the SNPR proposes requiring carriers to provide weekly average cars online for several car types, other, and total. The SNPR makes no changes to Request No. 2 and Request No. 3 in the NPR.

    Railroad Interests. Railroad interests generally do not object to Request Nos. 1-3, though they again emphasize that permanent reporting should be limited to those metrics that provide a “meaningful view of network health.” (UP SNPR Comments 2-3; see also CP SNPR Comments 1; AAR SNPR Reply 8.) UP states that this would include Request Nos. 1-4. (UP SNPR Comments 2-3.) Other carriers identify Request Nos. 1-3, with the potential addition of a weekly carloadings metric, as sufficient to monitor overall network fluidity. (CP NPR Comments 2; AAR NPR Comments 12.) In response to NGFA's requests for additional categories under Request No. 3 (Cars Online), UP counters that NGFA provides no justification for either its hazardous material reporting or for what it alleges is an “impracticable” request that industry-placed cars also be included. (UP SNPR Reply 4-5.)

    Finally, the railroads generally oppose the addition of fertilizer to Request No. 1 and to all other metrics that would require carriers to report data on fertilizer unit trains or carloads. AAR argues that commodity specific reporting, including fertilizer, is not useful for comparing service metrics for traffic that moves in different service and equipment. (AAR SNPR Comments 7-8.) It states that although there is no single definition of fertilizer, the Board's proposed definition is overbroad and erroneously includes commodities which are not fertilizers. (Id.; see also CSXT SNPR Comments 1.) CSXT adds that it can accommodate some of the fertilizer data the Board seeks, but using the Board's proposed Standard Transportation Commodity Codes (STCCs) would be difficult and misleading. (CSXT SNPR Comments 1.) NSR reports that in 2015 it moved less than 11% of its fertilizer traffic in unit train service and consequently believes that the data should not be separately reported. (NSR SNPR Comments 1.) It asserts that fertilizer shippers can monitor macro-level service data trends to gauge fertilizer service. (Id.)

    UP argues that the Board should not adopt new fertilizer metrics based on past service issues that no longer exist. (UP SNPR Comments 3.) Regarding fertilizer unit train reporting, UP argues that, because a small amount of fertilizer moves in unit train service (one in seven UP fertilizer shipments), the proposed metric would not provide useful information to the Board or allow the Board to reach meaningful conclusions about service. (Id. at 3-4.) UP expresses concern that separate reporting on fertilizer unit trains could expose confidential, customer-specific volume information. (Id. at 4.) UP states that fertilizer accounted for only 2% of UP total carloadings in 2015. (Id.) UP argues that there is no reason for separate reporting because (1) the rail network is fluid and currently has the resources to handle demand, and (2) the Board should avoid requiring commodity-specific reporting absent evidence distinguishing a specific commodity from other, non-reported commodities. (Id. at 4-5.) Finally, UP argues that fertilizer carloading reporting would create an unnecessary burden and introduce inconsistencies with historical records. (Id. at 5.)

    Shipper Interests & Other Stakeholders. Shipper interests are generally supportive of the SNPR changes to the first three metrics. NITL strongly supports the addition of “system” and “fertilizer” components to Request No. 1. (NITL SNPR Comments 3.) WCTL continues to support the inclusion of coal unit trains in Request Nos. 1-2. (WCTL SNPR Comments 3.) NGFA continues to advocate for more granular grain unit reporting, however, it narrows its request from its NPR comments to add only vegetable oils and vegetable meals to the existing grain categories in Request Nos. 1-2. (NGFA SNPR Comments 5, 8.) NGFA supports Request No. 3, but urges the Board to add a requirement that “carriers subdivide the `tank car' reporting requirement to include subcategories for cars hauling `hazmat' and `non-hazmat,'” plus require reporting of cars that are industry-placed. (NGFA SNPR Comments 8-9.)

    Finally, for Request No. 1 and all other metrics requiring carriers to report data on fertilizer unit trains, TFI recognizes that fertilizer shipments are not evenly distributed across carriers and agrees with UP that reporting fertilizer unit trains may raise confidentiality concerns among railroads with limited shipments. Accordingly, TFI states that it “no longer advocates for the reporting of fertilizer unit trains.” (TFI SNPR Reply 2, 6.)

    Final Rule. For Request No. 1, the Board will adopt the SNPR proposal with one modification as the final rule. We will exclude fertilizer unit trains from average train speed reporting. As noted above, TFI withdrew its request for unit train metrics for fertilizer movements. Additionally, the railroad industry explained that most fertilizer shipments move in manifest service and only a very small annual volume moves in unit trains. Thus, maintaining a fertilizer unit train speed metric would not advance the Board's objectives. Also for Request No. 1, the Board will adopt the SNPR proposal to add an overall “system” component, which aligns the request with current AAR reporting and provides a fuller picture of service performance. For Request No. 2 and No. 3, the Board will adopt the SNPR proposal as the final rule.

    The Board will deny NGFA's request to incorporate vegetable oils and vegetable meals into Request Nos. 1-2. Most carloads of vegetable oils move in manifest service as opposed to unit train service. (AAR SNPR Reply 4-5.) NGFA has not demonstrated a strong need for such a specifically tailored metric. Moreover, NGFA fails to explain why the railroads' reporting of system average train speed for manifest trains does not capture the velocity of vegetable oil and vegetable meal traffic, such that a specifically tailored metric is necessary. Similarly, NGFA fails to demonstrate that weekly average terminal dwell time does not adequately reflect terminal dwell for cars of vegetable oils and vegetable meals.10

    10 NGFA also requests that the Board incorporate vegetable oils and vegetable meals into Request Nos. 4, 5, 6, 7, and 8. The Board will likewise deny NGFA's requests to add additional grain categories to those requests as it has generally not shown a need to single out these specific commodities for more granular reporting.

    Request No. 4 (Dwell Time at Origin—Unit Train)

    The SNPR proposes requiring carriers to provide weekly average dwell time at origin for loaded shipments sorted by grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, fertilizer unit, all other unit trains, and manifest. The SNPR modifies the proposal in the NPR by adding the fertilizer unit and manifest categories and deleting the interchange component, which would have required carriers to report dwell times for trains at interchanges between carriers.

    Railroad Interests. As discussed above, the railroads generally oppose the requirement to report data on fertilizer unit trains. They also oppose the addition of the manifest category to Request No. 4 because an origin dwell metric is inconsistent with how manifest trains operate. (BNSF SNPR Comments 3 n.1; AAR SNPR Comments 8-9; UP SNPR Comments 10.) AAR comments that the data item is ambiguous, explaining that manifest trains “are not `released' to a line-haul carrier at `origin.' Manifest trains are made up at a railroad's yard and moved after the air brake test is completed.” (AAR SNPR Comments 8-9.) In response to NGFA's request to require carriers to provide industry spot and pull (ISP) reports, UP asserts that shippers already have access to this information for their own traffic and no public interest would be served by public reporting of this customer-specific information. (UP SNPR Reply 3.)

    Shipper Interests and Other Stakeholders. WCTL opposes the deletion of the interchange component. (WCTL SNPR Comments 3-4.) It states that customers depending on movements with interchanges found that “interchange dwell can be a telling measure of how the railroads are performing with their interchange partners, their available resources, and whether their systems are constrained.” (Id. at 4.) WCTL argues that deleting the interchange component removes a potentially important source of data, invites carries to engage in finger pointing, and deprives shippers of insight into where delays actually occur. (Id.)

    NGFA urges the Board to require carriers to “provide ISP reports upon one-time written request from rail customers.” (NGFA SNPR Comments 9.) It argues the ISP reports are an important source of data because they are a truer reflection of service than the current metrics which only reflect velocities from terminal-to-terminal. (NGFA SNPR Comments 6.) NGFA asserts that ISP reports better indicate the service shippers and receivers are actually receiving. (Id.) NGFA also asks the Board to expand the metric to include vegetable oils and vegetable meals to the existing grain category. (NGFA SNPR Comments 9.)

    Final Rule. For Request No. 4, the Board will adopt the SNPR proposal with two modifications as the final rule. First, for the reasons discussed above, we will delete the fertilizer unit component. Second, we will remove the manifest component, which would have required carriers to report dwell time for manifest trains. As explained by the railroad interests, manifest trains are not released in the same manner as unit trains at shipper origins, and therefore do not “dwell” in the same sense that unit trains do.

    The Board will adopt the proposed change in the SNPR of not including the interchange component. We continue to believe that the “interchange” component would not materially enhance the Board's perspective on rail service, in light of other performance data that will be collected under these final rules, such as dwell at origin, terminal dwell, trains holding, and cars that have not moved in 48 hours or longer. Moreover, the Board is sensitive to the potential burden that the “interchange” component would create because railroads do not share a common understanding as to when a train is considered to be “released” or “accepted” at interchange or maintain common practices for measuring a train's idle time at interchange. See SNPR, slip op. at 10.

    The Board will not mandate that railroads report to shippers upon request their respective ISP percentages for their local service design plans. NGFA's basis for seeking such reporting appears to be its view that other metrics contained in the SNPR are too general to allow the Board (and shippers) to assess local service. However, NGFA desires a level of data granularity—tracking at the local level—that exceeds the Board's objectives in monitoring service performance of the Class I railroads. Additionally, NGFA does not address the reporting burden that the volume of shipper requests would impose upon the industry.

    Lastly, for the reasons explained above, the Board will decline NGFA's request to expand this metric to include vegetable oils and vegetable meals. Additionally, because these commodities typically do not move in unit train configurations, dwell time at origin would not be a meaningful metric.

    Request No. 5 (Trains Holding)

    The SNPR proposes requiring carriers to provide the weekly average number of trains holding per day, sorted by train type (intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, fertilizer unit, other unit, and manifest) and by cause (crew, locomotive power, or other). To arrive at these figures, railroads would be instructed to run a daily same-time snapshot and then calculate the weekly averages. The SNPR modifies the proposal in the NPR in several ways. It removes the proposed requirement that railroads report trains held short of destination or scheduled interchange for longer than six hours. It also removes the “all other” train type and the “track maintenance” and “mechanical causes” that were included in the NPR. The SNPR adds “fertilizer unit” and “manifest train” types, and the instruction to run a daily same-time snapshot and then calculate the weekly average.

    Railroad Interests. CSXT reiterates that it will be a highly manual process to comply with this metric, including the fertilizer component. However, it states that the SNPR proposal is a “tremendous” improvement from the NPR and supports deletion of the six-hour component and the more limited list of causes. (CSXT SNPR Comments 3.)

    Since it was proposed in the NPR, BNSF has urged the Board to discontinue this metric, arguing it is not a reliable indicator of railroad performance. (BNSF SNPR Comments 3-4.) BNSF previously expressed that it can only provide a snapshot measure, as proposed here, but is concerned that the snapshot method overstates its numbers. (BNSF Mtg. Summary 2.) BNSF asserts that issues with the metric are exacerbated by the proposal in the SNPR to remove the six-hour category. (BNSF SNPR Comments 4.) BNSF also states, in response to the removal of the interchange component, that its current data set does not distinguish between trains that are held short of destination, interchange, or otherwise. (Id.)

    Shipper Interests and Other Stakeholders. Shippers urge the Board to revisit the decision to eliminate two reportable causes and require more specific reasons for delay rather than “other.” (NITL SNPR Comments 3; WCTL SNPR Comments 5.) NITL asserts that it recognizes the carriers' concern that trains held as part of normal operations will be captured in this metric, but argues that “in the search for the root causes of `abnormal' operating conditions . . . having more knowledge . . . is preferable.” (NITL SNPR Comments 3; see also WCTL SNPR Comments 5.) NGFA also opposes the elimination of causes and supports BNSF's suggestion to allow data that would identify trains being held on the network for railroad-caused reasons, but urges the Board not to eliminate the metric. (NGFA SNPR Reply 4-5.) NGFA asks the Board to expand the metric to include vegetable oils and vegetable meals to the existing grain category. (NGFA SNPR Comments 9.)

    Final Rule. For Request No. 5, the Board will adopt the SNPR proposal as the final rule with one modification. For the reasons discussed above, the fertilizer unit train component will be deleted.

    Both railroad and shipper commenters generally support the modification proposed in the SNPR of converting this metric into a weekly average of a daily snapshot of trains holding on each railroad's network, which is consistent with the way the industry monitors fluidity. The Board originally created the six-hour category to capture trains holding outside of their operating plan. However, railroads argued that the category was ineffective because some trains are held for six hours or longer as part of their operating plan. Railroads also argued that it was problematic from a data tracking standpoint because their internal metrics were not programmed to be compatible with the six-hour or longer filter. (BNSF NPR Comments 5-7; UP NPR Comments 15-16.) Accordingly, we will proceed to eliminate it from the final rules. The Board recognizes BNSF's concern that, even by eliminating the six-hour category, the trains holding metric will still capture trains being held as part of their operating plan. Nevertheless, the data will provide value over the course of time by allowing the agency to monitor trends and spot aberrations.

    With regard to categorization of trains being held by cause, the Board seeks to simplify reporting, as proposed in the SNPR. Although the “equipment malfunction” and “track maintenance” categories proposed in the NPR could be indicative of general service problems, the Board believes that the “crew shortages” and “locomotive shortages” categories proposed in the SNPR are more significant indicators of systemic, long-term service issues. Thus, the Board will reduce the number of assigned causes.

    Lastly, for the reasons explained above, the Board will decline NGFA's request to expand this metric to cover vegetable oils and vegetable meals. Additionally, because these commodities typically do not move in unit train configurations, the reported data would not be meaningful as a measure of fluidity as to vegetable oils and vegetable meal.

    Request No. 6 (Cars Held)

    The SNPR proposes requiring carriers to provide the weekly average number of loaded and empty cars, operating in normal movement and billed to an origin or destination, which have not moved in 48 hours or more, sorted by service type (intermodal, grain, coal, crude oil, automotive, ethanol, fertilizer, or all other). The SNPR modifies the proposal in the NPR by deleting the category for cars that have not moved in more than 120 hours. The SNPR also changes the categorization of such cars held from a period of “greater than 48 hours, but less than or equal to 120 hours,” to a period of “48 hours or more.” Finally, the SNPR modifies the NPR's requirement for a daily average of loaded and empty cars held to a weekly average and adds a fertilizer component.

    Railroad Interests. BNSF reiterates that there is public confusion regarding the differences in hold times for cars for different commodities under this metric. (BNSF SNPR Comments 4.) It asserts that these “differences in commodity categories are driven in large part by the ratio of unit train and single car service in the commodity fleet rather than service disruptions or other performance issues.” (Id. at 4-5.) In particular, BNSF explains that approximately half of its grain fleet is in shuttle, or unit train, service, whereas the majority of its crude and coal carloads move in unit train service; because unit trains are built for speed and efficiency, while manifest trains require more holding time, BNSF argues that the data between grain and crude oil will differ. (Id.)

    Shipper Interests and Other Stakeholders. Shippers are generally supportive of the SNPR changes to Request No. 6. (WCTL SNPR Comments 3; NITL SNPR Comments 3; NGFA SNPR 9-10.) NGFA requests that the Board include a component for cars placed in interchange that are being held. (NGFA SNPR Comments 10.) NGFA also asks the Board to expand the metric to include vegetable oils and vegetable meals to the existing grain category. (Id.) TFI supports the inclusion of a separate fertilizer component for this metric, which captures carload (as opposed to unit train) data. However, TFI proposes to narrow the definition of fertilizer to 14 seven-digit STCCs. (TFI SNPR Reply 4.)

    Final Rule. For Request No. 6, the Board will adopt the SNPR proposal as the final rule with an adjustment to the previously proposed definition of fertilizer. Parties agreed that the 120 hours or greater category proposed in the NPR was superfluous because concern arises when a railcar has not moved for 48 hours. See SNPR, slip op. at 12. As with Request No. 5, the Board will instruct carriers to use a same-day snapshot approach to develop a weekly average of cars that hit the 48-hour threshold, broken out by service type (intermodal, grain, coal, crude oil, automotive, ethanol, fertilizer, or all other). The Board will also adopt the requirement for reporting of cars in fertilizer service, but will define fertilizer by the 14 STCCs provided by TFI (2871236, 2871235, 2871238, 2819454, 2812534, 2818426, 2819815, 2818170, 2871315, 2818142, 2818146, 2871244, 2819173, and 2871451).

    Although AAR and some railroads note that fertilizer represents a relatively small fraction of overall rail traffic, the Board believes that it is necessary to help monitor the rail fertilizer supply chain because of its critical importance to the nation's agricultural production. As became apparent to the Board at the April 2014 hearing, disruption of the rail fertilizer supply chain arising from service issues threatened to impede spring planting throughout the Midwest. In order to focus attention on restoring the supply chain, the Board directed certain railroads to report on their progress moving fertilizer over a six-week period. See generally U.S. Rail Serv. Issues, EP 724 (Sub-No. 1) (STB served Apr. 15, 2014). Reporting of fertilizer as a stand-alone category of cars holding for 48 hours or longer will allow the Board to monitor the fluidity of this commodity, which is a key element in agricultural production, and facilitate early Board intervention, if appropriate. Lastly, for the reasons explained above, the Board will decline NGFA's request to expand this metric to include vegetable oils and vegetable meals. NGFA has not explained the heightened importance that would warrant separate reporting of these commodities, as has been shown for fertilizer.

    Request No. 7 (Grain Cars Loaded and Billed)

    The SNPR proposes requiring carriers to provide the weekly total number of grain cars loaded and billed, reported by state, and aggregated for the following STCCs: 01131 (barley), 01132 (corn), 01133 (oats), 01135 (rye), 01136 (sorghum grains), 01137 (wheat), 01139 (grain, not elsewhere classified), 01144 (soybeans), 01341 (beans, dry), 01342 (peas, dry), and 01343 (cowpeas, lentils, or lupines). It also proposes requiring carriers to report on the total cars loaded and billed in shuttle service (or dedicated train service) versus total cars loaded and billed in all other ordering systems, including private cars. The SNPR makes no changes to Request No. 7 in the NPR.

    Railroad Interests. The railroads did not provide specific additional comment on this metric in response to the proposed metric in the SNPR.

    Shipper Interests and Other Stakeholders. NGFA generally supports the SNPR; however, it asks the Board to expand the metric to include vegetable oils and vegetable meals to the existing grain category. (NGFA SNPR Comments 10; see also NITL SNPR Comments 3.)

    Final Rule. For Request No. 7, the Board will adopt the SNPR proposal, which was unchanged from the NPR, as the final rule. For the reasons discussed above, the Board will decline NGFA's request to expand this metric to include vegetable oils and vegetable meals.

    Request No. 8 (Grain Car Orders)

    The SNPR proposes requiring carriers to provide, for the same STCCs in Request No. 7, a report by state for the following for cars in manifest service: (a) The running total number of orders placed; (b) the running total of orders filled; and (c) for orders which have not been filled, the number of orders that are 1-10 days past due and 11+ days past due. The SNPR significantly modifies the NPR requirements, which were to report: (a) The total number of overdue car orders; (b) the average number of days late for all overdue grain car orders; (c) the total number of new orders received during the past week; (d) total number of orders filled during the past week; and (e) the number of orders cancelled during the past week.

    Railroad Interests. The railroads generally commented that they could report the requested data, subject to various individual limitations in their data systems. NSR explains that it only operates a small portion of its grain transportation on the basis of grain car orders so it would have limited and unrepresentative data in its response. (NSR SNPR Comments 2.) CSXT states that it could generate the required data unless the metric includes unit train placements as car orders. (CSXT SNPR Comments 3.) CSXT also emphasizes that commercial practices of railroads differ substantially between carriers and cautions against comparing data between railroads. (Id.) Finally, CSXT notes that it does not roll-over car orders from week-to-week and thus will not show any orders in the 11+ days category. (Id.)

    Shipper Interests and Other Stakeholders. NGFA suggests that the Board consider requiring each reporting carrier to report the definition of its car-ordering system for shuttles and manifest traffic. (NGFA SNPR Comments 11.) It also recommends that the Board require each “carrier to report whether it placed or pulled cars that were ordered or cancelled as a result of a railroad spotting more cars than the facility requested.” (Id.) NGFA also requests that the Board expand the metric to include vegetable oils and vegetable meals to the grain category. (Id.)

    Final Rule. For Request No. 8, the Board will adopt the SNPR proposal as the final rule. This request allows the Board to monitor car order fulfillment for shippers of agricultural products whose traffic moves in manifest (as opposed to unit train) service. Although the Board acknowledges the limitations that CSXT and NSR have noted, the Board believes that, overall, this data will allow the effective monitoring of grain traffic in manifest service over time. With respect to NGFA's suggestion to refine this request by requiring carriers to report certain definitions, such a proposal seems more responsive to the NPR's proposal than the SNPR's proposal, and in any event is not in line with the Board's intent to simplify this request. See SNPR, slip op. at 14 (“the Board proposes a simpler approach by asking that railroads report running totals of grain car orders placed versus grain car orders filled by State for cars moving in manifest service”). With respect to NGFA's request for additional data on cars ordered or cancelled, such a proposal does not enhance the Board's view of grain car order fulfilment. Moreover, it is unclear that railroads track the data that NGFA seeks.

    Also, for the reasons explained above, the Board will decline NGFA's request to expand this metric to include vegetable oils and vegetable meals.

    Request No. 9 (Coal Loadings)

    The SNPR proposes requiring carriers to provide the weekly average coal unit train loadings or carloadings versus planned loadings by coal production region. The SNPR modifies the proposal in the NPR by generally returning to the form of the corresponding request (Request No. 10) from the Interim Data Order, and adding the requirement to compare actual loadings against railroad service plans.

    Railroad Interests. UP asserts that it develops neither its own loading expectations, nor independent daily or weekly planned coal loadings. (UP SNPR Reply 11.) UP states that, to the extent that it has a coal loading plan, the plan is based on confidential customer information. (Id. at 10.) As such, UP raises concerns that disclosing any planned weekly loadings could reveal confidential customer information where UP has few coal customers. UP would require a waiver from the Board so that it could aggregate data to prevent revealing that information. (Id.) That concern aside, UP argues that comparing planned to actual weekly carloadings provides limited insight into railroad performance because actual carloadings are too dependent upon factors outside the railroad's control. (Id.) AAR also questions the usefulness of including a comparison to plan, arguing that it may present unreliable data because plans fluctuate based on customer preference, commercial factors, equipment, and other issues. (AAR SNPR Comments 9.) AAR stresses that coal traffic primarily moves subject to contracts beyond the Board's jurisdiction. (Id.)

    Shipper Interests and Other Stakeholders. WCTL and others support the addition of the comparison-to-plan component to Request No. 9. (WCTL SNPR Comments 2-3; NITL SNPR Comments 3.) WCTL states that including the comparison-to-plan component is superior to the metric proposed in the NPR and “provides direct and frequent information regarding whether the railroads are meeting the service needs of their customers and even the carriers' own loading plans [and] whether such divergences are continuing or increasing.” (WCTL SNPR Comments2-3.) WCTL disagrees with concerns raised by UP that this metric could divulge confidential shipper information, asserting that no specific information would need to be divulged and no shipper has complained under the Interim Data Order. (WCTL SNPR Reply 3.) WCTL also argues that “weekly plan reporting is useful precisely because it reflects the requirements of one of the highest volume commodities on all of the railroads and whether the railroads are able to meet that demand” and is potentially a valuable data point because the fluidity of coal routes can impact other shippers. (Id. at 3-4.) WCTL also asserts that, despite UP's claim that it has no coal loading plans, it “requires all coal customers to use the [National Coal Transportation Association] coal forecasting tool, which generally results in a railroad-approved monthly loading plan.” (Id. at 4.) Finally, WCTL suggests that, where railroads have a single shipper, they be permitted to withhold the data and make a notation that confidential information might be revealed. (Id.)

    Final Rule. For Request No. 9, the Board will adopt the SNPR proposal as the final rule. The Board believes that there is value in having railroads report their performance versus their plan on a weekly basis for coal loadings. This data will not only allow the agency to track actual loadings, but also to see whether railroads are meeting their own targets. The Board understands the point made by UP that a loading plan is not necessarily static, but is simply a target based on a variety of inputs, which can and does change as surrounding circumstances change. Even so, there is value in seeing whether railroads are meeting, exceeding, or falling short of plans, as it provides context to the reporting of weekly average loadings. To the extent that reporting information about planned loadings under this metric would implicate confidential information, railroads may include a notation in their weekly filing that they are not providing the plan data along with a brief explanation for the data's absence. Finally, AAR's argument that coal traffic primarily moves subject to contracts beyond the Board's jurisdiction does not take into account our statutory responsibility to advance the goals of the RTP, which (as discussed above) includes monitoring service in order to ensure the fluidity of the national rail network. 49 U.S.C. 10101(3), (4). The Board is not asserting jurisdiction regarding the rights and obligations of shippers and carriers associated with coal moving under contracts; rather, the Board is taking action to gain a better understanding of and insight into the general flow of traffic on the system.

    Request No. 10 (Grain Unit Train Performance)

    The SNPR adds this metric not included in the NPR seeking the average grain shuttle (or dedicated grain train) trips per month. The SNPR explains that because some Class I railroads operations do not support this reporting, the Board anticipates issuing a waiver decision with the final rules that would permit other Class I railroads to satisfy their obligations under Request No. 10 by reporting average grain unit train trips per month for their total system, including this data in their first report of each month, covering the previous calendar month. Such reports would not include planned trips per month or data by region. Under the SNPR, for purposes of reporting under this item, other Class I railroads would report for all grain unit train movements, regardless of whether or not they maintain a grain shuttle or dedicated train program.

    Railroad Interests. Several railroads state that they do not operate grain shuttles or grain trains that cycle so they cannot provide data on the average trips per month for those services. (UP SNPR Comments 12; CSXT SNPR Comments 4; NSR SNPR Comments 2.) NSR explains that it would not have any average data to report because it does not cycle grain trains, but states that it could report a gross total of the number of grain unit train trips per month. (NSR SNPR Comments 2.) CSXT states that because it does not manage grain transportation regionally, it will only be able to report average trips per month system-wide. (CSXT SNPR Comments 4.) UP notes that it does not control the origins and destinations of its shuttle trains and that origins and destinations routinely shift, making it difficult to report planned trips per month. (UP SNPR Comments 12.) AAR also states that some railroads cannot report the requested data, and argues that the Board should not adopt a rule that requires some carriers to immediately seek waivers. (AAR SNPR Comments 9.)

    Shipper Interests and Other Stakeholders. Shippers generally support the addition of this metric. (NITL SNPR Comments 3; NGFA SNPR Comments 11). NGFA expresses concern that monthly reporting of this metric is insufficient and asks that the Board require weekly reporting instead. (NGFA SNPR Comments 12.) NGFA also urges the Board not to grant waivers from this requirement because it knows of no Class I carrier that would not be able to track shuttle or dedicated grain trips by region or corridor. (Id.) However, NGFA states that if the Board does allow for waivers, that process should be transparent. (Id.) In its reply, NGFA reiterates its position that shuttle trains and dedicated grain trips should be reported by corridor and region. (NGFA SNPR Reply 3.)

    Final Rule. For Request No. 10, the Board will adopt the SNPR proposal as the final rule modified to apply only to those carriers operating grain unit trains in shuttle service. The Board will eliminate the requirement for carriers with dedicated grain trains to report trips per month because the disparate data carriers could provide on that type of service would not provide the Board insight into service beyond the velocity data collected elsewhere in this final rule.11 In the first report of each month, railroads operating grain shuttles will be required to report their average train trips per month for their system and key destination regions versus planned trips per month for their system and key regions for the previous month. Underlying this request is the Board's need for information about how railroads are performing with respect to the agricultural sector. The service problems that emerged during the winter of 2013-2014 resulted in significant backlogs of unfilled grain car orders and increased train cycle times, indicating that railroads were experiencing severe congestion and failing to meet shipper demand. U.S. Rail Serv. Issues—Grain, EP 724 (Sub-No. 2), slip op. at 1 (STB served June 20, 2014). Thus, in the Interim Data Order the Board requested grain car order fulfillment data, and data on train round trips versus the railroad's service plan. This data proved very useful in monitoring the progress of BNSF and CP as they improved operations on an actual basis and against their service plan. The “turns versus plan” data will allow the Board to assess how railroads operating grain shuttles are meeting their own expectations.

    11 Accordingly, the waiver decision discussed in the SNPR would no longer be necessary. The waiver would have applied to those carriers with operations that would not permit the reporting envisioned there. See SNPR, slip op. at 15-16. However, the modification proposed here would obviate the need for a waiver decision by including only those carriers operating grain shuttles.

    Request No. 11 (Originated Carloads by Commodity Group)

    The SNPR proposes the creation of a second metric not included in the NPR. Under this metric, railroads would be required to provide weekly originated carloads by 23 commodity categories.

    Railroad Interests. The railroads generally support the addition of this metric. (See UP SNPR Comments 12; see also CP NPR Comments 2.) UP states that the Board can improve the metric by adding a requirement that carriers report “weekly carloads originated and carloads received in interchange[, which] . . . would be consistent with weekly carloadings data reported by the AAR.” (Id. at 12-13.)

    However, as discussed above, the railroads oppose the inclusion of fertilizer in this metric. They assert that creating a line-item for fertilizer will require substantial system changes (AAR SNPR Comments 8; BNSF SNPR Comments 5), and point out that fertilizer is not one of the commodity groups currently reported to the AAR on a weekly basis. (AAR SNPR Comments 8; BNSF SNPR Comments 5-6.) UP states that fertilizer accounted for only 2% of its carloadings in 2015. (UP SNPR Comments 4.) CSXT argues that including fertilizer here would “compromise the usefulness of a long-standing economic indicator that has been followed . . . for decades.” (CSXT SNPR Comments 4.)

    Shipper Interests and Other Stakeholders. Shippers generally support the addition of this metric. (NITL SNPR Comments 3-4; NGFA SNPR Comments 12-13.) NITL states that it shows some understanding of shippers' requests for additional granularity in commodity groups. (NITL SNPR Comments 4.) NGFA again asks the Board to expand the metric to include vegetable oils and vegetable meals to the existing grain category. (NGFA SNPR Comments 13.) TFI again states that the definition of fertilizer could be narrowed to the same 14 seven-digit STCCs that it proposed for Request No. 6. (TFI SNPR Reply 4.)

    Final Rule. For Request No. 11, the Board will adopt the SNPR proposal with two modifications as the final rule. First, per UP's suggestion, the Board will expand the metric to include separate reporting of weekly cars received in interchange, which the railroads are already reporting to the AAR. Second, the Board will require railroads to report, as a separate line item, weekly originated carloads and cars received in interchange for fertilizer, as defined by the 14 seven-digit STCCs proposed by TFI and defined above.

    Through this metric, the Board seeks to gain specific data for carloadings and interchange traffic that will allow it to better monitor this commodity group. However, the Board understands the railroads' concern that including fertilizer could disrupt the continuity of reporting cars originated and received in interchange, as presently reported to AAR. Accordingly, the Board will create two subcategories for this metric. In the first subcategory, the Board will require reporting according to the 22 existing traffic categories currently reported to AAR. The second subcategory will include only fertilizer.

    By requiring fertilizer reporting in this manner, the Board is not asking railroads to modify or extract traffic from the existing 22 categories, which should be reported in their current form; rather, the agency is adding a new, stand-alone category covering the STCCs identified above.

    Request No. 12 (Car Order Fulfillment Rate by Car Type)

    The SNPR proposes the creation of a third new metric not included in the NPR. Under this metric, railroads would be required to provide car order fulfillment percentage by 10 car types.

    Railroad Interests. The railroads strongly oppose the addition of this metric. AAR states that the metric is ambiguous and unworkable. (AAR SNPR Comments 10.) It argues that “Class I railroad practices regarding car supply differ significantly,” (id.), explaining that “cars `due to be placed' and cars placed will not match up week to week.” The AAR also claims that, because cars that are constructively placed are eventually actually placed, the metric creates a potential double count. (Id.) AAR also states certain rail cars are supplied by pool arrangements that would distort individual railroad reporting. (Id.) UP states that the car order fulfillment percentage concept “applies only in situations where a customer orders and requests an empty car to be placed at a customer facility for loading.” (UP SNPR Comments 5.) UP alleges that there are numerous situations where customers do not place car orders, including intermodal cars, autoracks, covered hoppers, private cars, and pooled cars. (Id. at 5-8.) CSXT urges the Board not to adopt the proposed metric, stating that “in a considerable number of car supply scenarios, it is wholly unworkable.” (CSXT SNPR Comments 4.) BNSF and NSR also urge the Board not to adopt the metric, identifying a number of issues with the proposed metric. (BNSF SNPR Comments 6-7; NSR SNPR Comments 2-3.) BNSF questions the value of the data because the metric would cover several car types that customers do not order, and because there are significant differences between commodities and customers of similar commodities. (BNSF SNPR Comments 6-7.) NSR states that because it does not have a tariff governing car orders, the reporting will result in “significant double counting while reporting only actual placement will result in incomplete data.” (NSR SNPR Comments 3.)

    Shipper Interests and Other Stakeholders. NITL and NGFA generally support the addition of this metric. (NITL SNPR Comments 4; NGFA SNPR Comments 13.) NITL stresses that it would provide additional visibility into industry operations that would be beneficial to a large number of shippers. (NITL SNPR Comments 4.) HRC urges the Board to take into consideration the fact that some railroads expire car orders at the end of each week, which will lead to an understatement of backlog orders. (HRC SNPR Comments 2.)

    Final Rule. The Board will not adopt the proposed Request No. 12 from the SNPR in the final rules. As noted above, the railroad interests pointed out several practical and definitional challenges posed by this request, which make it incompatible in various ways with their operations and internal data tracking. Although shippers expressed support for this additional data, the Board believes that its potential utility would be significantly diminished due to the problems identified by the railroad industry. In a revised form, it would not apply to a significant amount of rail traffic. As such, the limited data would not materially enhance the Board's perspective on service performance.

    Chicago

    The SNPR proposes requiring that the Class I railroads operating at the Chicago gateway jointly report the following performance data elements for the reporting week: (1) Average daily car volume in the following Chicago area yards: Barr, Bensenville, Blue Island, Calumet, Cicero, Clearing, Corwith, Gibson, Kirk, Markham, and Proviso; and (2) average daily number of trains held for delivery to Chicago sorted by receiving carrier. Moreover, the request would require Class I railroad members of the CTCO to provide certain information regarding the CTCO Alert Level status and protocols.

    Railroad Interests. CP reiterates its suggestion that the Board require certain data from the Belt Railway of Chicago (BRC) and Indiana Harbor Belt (IHB), which it states are the heart of the Chicago terminal. (CP SNPR Comments 3.) CP suggests a number of metrics that the two carriers could report on a weekly basis: Number of cars arrived per day, number of cars humped or processed per day, number of cars re-humped or re-processed per day, number of cars pulled per day, number of trains departed each day by railroad, average terminal dwell, average departure yard dwell, and percentage of trains departed on-time each day by railroad. CP believes much of the data is already kept by the switching carriers. (Id. at 3 n.3.) CP asserts that, in contrast to the other commodity and geographic specific data the Board proposes to require, information from BRC and IHB “is likely to provide early warnings of rail service issues and more likely to be useful in averting a significant service disruption.” (Id. at 3.)

    AAR reports that the railroads have agreed to provide CMAP and other Illinois entities with a weekly report related to the Chicago terminal. (AAR SNPR Comments 10.) AAR states that “the railroads have begun to provide the Chicago entities a report that include[s] cars en route to Chicago and cars processed, each broken out by cars terminated in Chicago and those transitioning through . . . . [and] a7-day average freight transit time through Chicago.” (Id.) AAR states that it would not object to making the report part of the weekly CTCO report to the Board. (Id.) Additionally, in its reply, AAR urges the Board to reject CMAP's request for additional data. (AAR SNPR Reply 6-7.)

    Shipper Interests and Other Stakeholders. NITL states that additional information from BRC and IHB would be helpful to many stakeholders and recommends that the Board contact the Bureau of Transportation Statistics for guidance on designing not overly burdensome operating statistics for these two carriers. (NITL SNPR Comments 4.) NITL also states that “a cooperative joint effort between the Class I carriers that `feed' the Chicago region and the two belt lines to define a set of best measures would likely yield good results.” (Id.) NGFA reiterates its recommendation that the Board require three Chicago-specific metrics touching on idled cars in Chicago-area yards. (Id.) In its reply, NGFA urges the Board to evaluate whether AAR's proposed metrics would improve the Board's understanding of conditions in Chicago. (NGFA SNPR Reply 5.)

    As noted above, CMAP also reports that it has reached an agreement with AAR to receive weekly information on “yard inventories, terminal dwell times for railcar yards, the number of railcars en route and processed, and the overall crosstown transit times” for the Chicago terminal, and that it agrees with AAR's suggestion to share this report with the Board. (CMAP SNPR Comments 1.) CMAP recommends that the Board also require additional performance metrics focusing on intermodal trains. (Id.) CMAP also reiterates its suggestion that the Board expand the number of yards included in its terminal dwell metric, and add metrics covering crosstown travel times; speed, volume, and train length for all key rail corridors in the Chicago terminal; and delay and intermodal lifts. (Id. at 2.)

    Final Rule. The Board will adopt the SNPR proposal for Chicago gateway reporting as the final rule. The Board will also accept the AAR's voluntary offer to include the data it is reporting to CMAP in CTCO's report to the Board.

    While the Board appreciates CP's recommendations for extending certain reporting requirements to IHB and BRC, the Board believes that the data reporting currently provided by the CTCO, through its Class I members, already provides focused visibility and heightened attention into this key gateway. The final rule, as augmented by the data that AAR has offered to submit voluntarily, will continue to maintain a robust view of operating conditions in the Chicago gateway. In the Chicago metrics, the Board will receive average daily car volumes at eleven key yards in the Chicago gateway, including yards operated by BRC and IHB, and data showing average daily number of trains held for delivery at Chicago, sorted by carrier. Also, under Request No. 2, the Board will receive weekly average terminal dwell time for several Chicago gateway yards. This data will allow the Board to sufficiently monitor operating conditions and spot congestion or fluidity issues in the Chicago gateway. Therefore, the Board will not require the reporting of additional granularity at this time.

    Infrastructure Reporting

    The SNPR proposes requiring that each Class I railroad, annually on March 1 with an update on September 1, report a description of significant rail infrastructure projects (defined as anticipated expenditures of $75 million or more over the life of the project) that will commence during the current calendar year. The narrative report would require a brief description of each project, its purpose, location (state/counties), and projected date of completion. The SNPR modifies the NPR's proposal by changing the reporting period from a quarterly report to annual with one annual update, and by increasing the lower limit for projects required to be reported on from $25 million to $75 million.

    Railroad Interests. The railroads are generally supportive of the changes to this metric in the SNPR. (UP SNPR Comments 2; AAR SNPR Comments.) In its reply, AAR urges the Board to reject some shippers' push for more extensive reporting, stating that the SNPR “strikes a balance of keeping the Board apprised on the progress of significant infrastructure improvements without unduly burdening railroads with its reporting requirements.” (AAR SNPR Reply 5.) AAR stresses that because none of the infrastructure reports can be automated, the requirement will draw on the time and effort of personnel to write the narrative. (Id.)

    Shipper Interests and Other Stakeholders. Although some shippers support the modified infrastructure reporting requirements (NITL SNPR Comments 4), others urge the Board to adopt the NPR proposal (NGFA SNPR Comments 14; WCTL SNPR Comments 5). NGFA states that it sees one of the fundamental objectives of this proceeding as being the creation of “a one-stop-shop for more standardized information affecting rail service,” which should include information on the impacts of infrastructure investment that would have been required under the NPR. (NGFA SNPR Comments 14.) NGFA asserts that access to this type of information can vary widely between carriers. (Id.) NGFA stresses that having timely access to information on potential disruption to service is extremely important to shippers and, thus, asks the Board to require carriers to report the predicted time frames when freight traffic may be interrupted as a result of infrastructure projects. (Id.) WCTL states that infrastructure projects with a projected cost of $25-$75 million, which would not be reported under the SNPR proposal, can impact quality of service and together have an enormous impact on whether a railroad achieves and maintains fluidity. (WTCL SNPR Comments 6.) It also argues that curtailed reporting could undermine the Board's ability to carry out its responsibility to monitor the adequacy of service by rail carriers and their compliance with the common carrier obligation. (Id.)

    Final Rule. The Board will adopt the SNPR proposal as the final rule. The Board believes that the request for an initial narrative response (due March 1) and a six-month update (due September 1) strikes an appropriate balance between the Board's need for current information about rail infrastructure projects and the burden of reporting on the railroads. Rather than specifying certain required elements, as in the initial proposal, the Board will allow railroads to exercise discretion and flexibility in preparing their narrative responses.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. sections 601-604. In its final rule, the agency must either include an initial regulatory flexibility analysis, section 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities.” section 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The final rules adopted here are limited to Class I railroads and, thus, will not have a significant economic impact upon a substantial number of small entities.12 Therefore, the Board certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    12 Effective June 30, 2016, for the purpose of RFA analysis for rail carriers subject to our jurisdiction, the Board defines a “small business” as a rail carrier classified as a Class III rail carrier under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member Begeman dissenting). Class III carriers have annual carrier operating revenues of $20 million or less in 1991 dollars, or $36,633,120 or less when adjusted for inflation using 2015 data. Class II carriers have annual carrier operating revenues of less than $250 million but in excess of $20 million in 1991 dollars, or $457,913,998 and $36,633,120 respectively, when adjusted for inflation using 2015 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.

    Paperwork Reduction Act

    In a supplemental Federal Register notice, published at 81 FR 27,069 on May 5, 2016 (correction published at 81 FR 32268 on May 23, 2016), the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521 and Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d), regarding: (1) Whether the collection of information in the proposed rule is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. Any comments relating to these issues are addressed in the decision above.

    The proposed collection was submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11. OMB withheld approval pending submission of the final rule. The Board has submitted the collection contained in this final rule to OMB for approval. Once approval is received, the Board will publish a notice in the Federal Register stating the control number and the expiration date for this collection. Under the PRA and 5 CFR 1320.11, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.

    It is ordered:

    1. The final rule set forth below is adopted and will be effective on January 29, 2017. The initial reporting date will be February 8, 2017. Notice of the rule adopted here will be published in the Federal Register.

    2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

    Summary of Final Rule

    Having considered all written and oral comments on the SNPR, the following changes are reflected in the final rule for the new regulations to be codified at 49 CFR 1250.1-1250.2 to require Class I rail carriers, Class I carriers operating in the Chicago gateway, and the CTCO, through its Class I members, to submit to the Board reports on railroad performance. The regulations are below. The table below provides a brief description of the differences between the SNPR and this final rule, which were explained in detail above.

    Table 1—Summary of Changes in the Data Requests Between the SNPR and the Final Rule SNPR Final rule Saturday through Friday reporting week with reports to be filed the following Wednesday Modify the reporting week for Request No. 11 to Sunday through Saturday. Allow carriers to report unit train data based on their assignment of train codes in the ordinary course of business Add the requirement to submit the definition of a unit train to the Board for publication on its Web site and update that definition should it change. (1) System-average train speed for intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, manifest, fertilizer unit, and, system Delete the fertilizer unit component. (2) Weekly average terminal dwell time for each carrier's system and its 10 largest terminals No changes. (3) Weekly average cars online for seven car types, other, and total No changes. (4) Weekly average dwell time at origin for loaded unit train shipments sorted by grain, coal, automotive, crude oil, ethanol, fertilizer unit, all other unit trains, and manifest Delete the fertilizer unit and manifest components. (5) Weekly total number of loaded and empty trains held short of destination or scheduled interchange by train type (intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, fertilizer unit, other unit, and manifest) and by cause (crew, locomotive power, or other). Instruct railroads to run a same-time snapshot of trains holding each day and then calculate the average for the reporting week Delete the fertilizer unit component. (6) Weekly average number of loaded and empty cars operating in normal movement, which have not moved in ≥ 48 hours, sorted by service type and measured by a daily same-time snapshot Modify the definition of fertilizer. (7) Weekly total number of grain cars loaded and billed, by state, for certain STCCs. Also include total cars loaded and billed in shuttle service versus all other ordering systems No changes. (8) For the STCCs delineated in Request No. 7, running totals of grain car orders in manifest service submitted versus grain car orders filled, and for unfilled orders, the number of car orders that are 1-10 days past due and 11+ days past due No changes. (9) Weekly total coal unit train loadings or carloadings versus planned loadings by coal production region No changes. (10) Grain shuttle (or dedicated grain train) trips per month Modify to apply only to grain shuttles, not other grain trains. (11) Weekly originated carloads by 23 commodity categories Add cars received in interchange.
  • Delete fertilizer from the main reporting category, but add a second category requiring carriers to report fertilizer originated carloads and cars received in interchange by the STCCs defined in Request No. 6.
  • (12) Car order fulfillment percentage for the reporting week by 10 car types Delete this proposed request. Chicago. Class Is operating in Chicago must jointly report each week: Average daily car volume in certain yards, and average daily number of cars held for delivery to Chicago sorted by receiving carrier. Class I railroad members of the CTCO must provide certain information regarding the CTCO Alert Level status and protocols No changes. Infrastructure. An annual report of significant rail infrastructure projects that will be commenced during that calendar year, and a six-month update on those projects. The report is to be in a narrative form briefly describing each project, its purpose, location, and projected date of completion. The Board proposes to define a significant project as one with a budget of $75 million or more No changes.
    List of Subjects in 49 CFR Part 1250

    Administrative practice and procedure, Railroads, Reporting and recordkeeping requirements.

    Decided: November 29, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Kenyatta Clay, Clearance Clerk.

    For the reasons set forth in the preamble, the Surface Transportation Board amends title 49, chapter X, subchapter C, of the Code of Federal Regulations by adding part 1250 to read as follows:

    PART 1250—RAILROAD PERFORMANCE DATA REPORTING Sec. 1250.1 General. 1250.2 Railroad performance data elements. 1250.3 Chicago terminal reporting. 1250.4 Rail infrastructure projects reporting. Authority:

    49 U.S.C. 1321 and 11145.

    § 1250.1 General.

    (a) The reporting period covers:

    (1) For § 1250.2(a)(1)-(9), 12:01 a.m. Saturday-11:59 p.m. Friday;

    (2) For § 1250.2(a)(10), the previous calendar month;

    (3) For § 1250.2(a)(11), 12:01 a.m. Sunday-11:59 p.m. Saturday;

    (4) For § 1250.3(a)(1)-(2), 12:01 a.m. Saturday-11:59 p.m. Friday.

    (b) The data required under § 1250.2 and § 1250.3(a) must be reported to the Board via the method and in the form prescribed by the Board's Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) by 5 p.m. Eastern Time on Wednesday of each week. In the event that a particular Wednesday is a Federal holiday or falls on a day when STB offices are closed for any other reason, then the data should be reported on the next business day when the offices are open.

    (c) Each reporting railroad shall provide an explanation of its methodology for deriving the data with its initial filing and an update if and when that methodology changes. This explanation should include the unit train definition that the railroad will use in its data reporting, which shall reflect its assignment of train codes in accordance with its normal business practices. If and when a railroad changes its definition of unit train it shall notify the Board of the change at the time it goes into effect in the form prescribed by OPAGAC.

    (d) Unless otherwise provided, the performance data, Chicago data and alert levels, narrative infrastructure reporting, and any methodologies or explanations of data collection reported to the Board under this part will be publicly available and posted on the Board's Web site.

    § 1250.2 Railroad performance data elements.

    (a) Each Class I railroad must report the performance data elements in paragraphs (a)(1)-(9) and (11) of this section on a weekly basis, and the data elements in paragraph (a)(10) on a monthly basis, for the reporting period, as defined in § 1250.1(a). However, with regard to data elements in paragraph (a)(7) and (8), Kansas City Southern Railway Company is not required to report information by state, but instead shall report system-wide data.

    (1) System-average train speed for the overall system and for the following train types for the reporting week. (Train speed should be measured for line-haul movements between terminals. The average speed for each train type should be calculated by dividing total train-miles by total hours operated.)

    (i) Intermodal.

    (ii) Grain unit.

    (iii) Coal unit.

    (iv) Automotive unit.

    (v) Crude oil unit.

    (vi) Ethanol unit.

    (vii) Manifest.

    (viii) System.

    (2) Weekly average terminal dwell time, measured in hours, excluding cars on run-through trains (i.e., cars that arrive at, and depart from, a terminal on the same through train), for the carrier's system and its 10 largest terminals in terms of railcars processed. (Terminal dwell is the average time a car resides at a specified terminal location expressed in hours.)

    (3) Weekly average cars on line by the following car types for the reporting week. (Each railroad shall average its daily on-line inventory of freight cars. Articulated cars should be counted as a single unit. Cars on private tracks (e.g., at a customer's facility) should be counted on the last railroad on which they were located. Maintenance-of-way cars and other cars in railroad service are to be excluded.)

    (i) Box.

    (ii) Covered hopper.

    (iii) Gondola.

    (iv) Intermodal.

    (v) Multilevel (Automotive).

    (vi) Open hopper.

    (vii) Tank.

    (viii) Other.

    (ix) Total.

    (4) Weekly average dwell time at origin for the following train types: Grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, and all other unit trains. (For the purposes of this data element, dwell time refers to the time period from release of a unit train at origin until actual movement by the receiving carrier.)

    (5) The weekly average number of trains holding per day sorted by train type (intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, other unit, and manifest) and by cause (crew, locomotive power, or other). (Railroads are instructed to run a same-time snapshot of trains holding each day, and then to calculate the average for the reporting period.)

    (6) The weekly average of loaded and empty cars, operating in normal movement and billed to an origin or destination, which have not moved in 48 hours or more sorted by service type (intermodal, grain, coal, crude oil, automotive, ethanol, fertilizer (the following Standard Transportation Commodity Codes (STCCs): 2871236, 2871235, 2871238, 2819454, 2812534, 2818426, 2819815, 2818170, 2871315, 2818142, 2818146, 2871244, 2819173, and 2871451), and all other). In order to derive the averages for the reporting period, carriers should run a same-time snapshot each day of the reporting period, capturing cars that have not moved in 48 hours or more. The number of cars captured on the daily snapshot for each category should be added, and then divided by the number of days in the reporting period. In deriving this data, carriers should include cars in normal service anywhere on their system, but should not include cars placed at a customer facility; in constructive placement; placed for interchange to another carrier; in bad order status; in storage; or operating in railroad service (e.g., ballast).

    (7) The weekly total number of grain cars loaded and billed, reported by state, aggregated for the following STCCs: 01131 (barley), 01132 (corn), 01133 (oats), 01135 (rye), 01136 (sorghum grains), 01137 (wheat), 01139 (grain, not elsewhere classified), 01144 (soybeans), 01341 (beans, dry), 01342 (peas, dry), and 01343 (cowpeas, lentils, or lupines). “Total grain cars loaded and billed” includes cars in shuttle service; dedicated train service; reservation, lottery, open and other ordering systems; and private cars. Additionally, separately report the total cars loaded and billed in shuttle service (or dedicated train service), if any, versus total cars loaded and billed in all other ordering systems, including private cars.

    (8) For the aggregated STCCs listed in § 1250.2(a)(7), for railroad-owned or leased cars that will move in manifest service, each railroad shall report by state the following:

    (i) Running total of orders placed;

    (ii) The running total of orders filled;

    (iii) For orders which have not been filled, the number of orders that are 1-10 days past due and 11+ days past due, as measured from when the car was due for placement under the railroad's governing tariff.

    (9) Weekly average coal unit train loadings or carloadings versus planned loadings for the reporting week by coal production region. Railroads have the option to report unit train loadings or carloadings, but should be consistent week over week.

    (10) For Class I carriers operating a grain shuttle program, the average grain shuttle turns per month, for the total system and by region, versus planned turns per month, for the total system and by region. This data shall be included in the first weekly report of each month, covering the previous calendar month.

    (11) Weekly carloads originated and carloads received in interchange by 23 commodity categories, separated into two subgroups:

    (i) Twenty-two historical commodity categories.

    (A) Chemicals.

    (B) Coal.

    (C) Coke.

    (D) Crushed Stone, Sand and Gravel.

    (E) Farm Products except Grain.

    (F) Food and Kindred Products.

    (G) Grain Mill Products.

    (H) Grain.

    (I) Iron and Steel Scrap.

    (J) Lumber and Wood Products.

    (K) Metallic Ores.

    (L) Metals.

    (M) Motor Vehicles and Equipment.

    (N) Non Metallic Minerals.

    (O) Petroleum Products.

    (P) Primary Forest Products.

    (Q) Pulp, Paper and Allied Products.

    (R) Stone, Clay and Glass Products.

    (S) Waste and Scrap Materials.

    (T) All Other.

    (U) Containers.

    (V) Trailers.

    (ii) Fertilizer commodity category.

    (A) Fertilizer (for STCCs defined in paragraph (a)(6) of this section).

    (B) [Reserved]

    (b) [Reserved]

    § 1250.3 Chicago terminal reporting.

    (a) Each Class I railroad operating at the Chicago gateway must jointly report the following performance data on a weekly basis for the reporting period, as defined in § 1250.1(a). The reports required under this section may be submitted by the Association of American Railroads (AAR).

    (1) Average daily car volume in the following Chicago area yards: Barr, Bensenville, Blue Island, Calumet, Cicero, Clearing, Corwith, Gibson, Kirk, Markham, and Proviso for the reporting week; and

    (2) Average daily number of trains held for delivery to Chicago sorted by receiving carrier for the reporting week. The average daily number should be derived by taking a same time snapshot each day of the reporting week, capturing the trains held for each railroad at that time, and then adding those snapshots together and dividing by the days in the reporting week.

    (i) For purposes of this request, “held for delivery” refers to a train staged by the delivering railroad short of its scheduled arrival at the Chicago gateway at the request of the receiving railroad, and that has missed its scheduled window for arrival.

    (ii) If Chicago terminal yards not identified in § 1250.2(b)(1) are included in the Chicago Transportation Coordination Office's (CTCO) assessment of the fluidity of the gateway for purposes of implementing service contingency measures, then the data requested in § 1250.2(b)(1) shall also be reported for those yards.

    (b) The Class I railroad members of the CTCO (or one Class I railroad member of the CTCO designated to file on behalf of all Class I railroad members, or AAR) must:

    (1) File a written notice with the Board when the CTCO changes its operating Alert Level status, within one business day of that change in status.

    (2) If the CTCO revises its protocol of service contingency measures, file with the Board a detailed explanation of the new protocol, including both triggers and countermeasures, within seven days of its adoption.

    (c) Reports under paragraph (b) of this section shall be reported to the Director of the Office of Public Assistance, Governmental Affairs and Compliance (OPAGAC) via the method and in the form prescribed by OPAGAC.

    § 1250.4 Rail infrastructure projects reporting.

    (a) Class I railroads shall submit annually a narrative report of significant rail infrastructure projects that will be commenced during the current calendar year, and a six-month update on those projects. The reports should briefly describe each project, its purpose, location (state/counties), and projected date of completion.

    (b) A “significant rail infrastructure project” is defined as a project with anticipated expenditures of $75 million or more over the life of the project.

    (c) The narrative report should be submitted no later than March 1 of each calendar year and the update no later than September 1 of each calendar year via email to the Board's Office of Public Assistance, Governmental Affairs and Compliance (OPAGAC) via the method and in the form prescribed by OPAGAC. In the event that March 1 or September 1 is a Federal holiday, weekend, or falls on a day when STB offices are closed for any other reason, then the data should be reported on the next business day when the offices are open.

    [FR Doc. 2016-29131 Filed 12-2-16; 8:45 am] BILLING CODE 4915-01-P
    81 233 Monday, December 5, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 33 and 35 [Doc. No. AMS-FV-14-0099; FV15-33/35-1 PR] Regulations Issued Under Authority of the Export Apple Act and Export Grapes and Plums; Changes to Export Reporting Requirements AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act (7 CFR part 33) and the Export Grape and Plum Act (7 CFR part 35). This change would require shippers of apples and grapes exported from the United States to electronically enter an Export Form Certificate number or a USDA-defined exemption code into the Automated Export System (AES). This rule would also define “shipper,” shift the current file retention requirement from carriers to shippers, and require shippers to provide, upon request, copies of the certificates to the Agricultural Marketing Service (AMS). These changes would enable AMS to track exported apple and grape shipments to ensure that exports meet inspection and certification requirements. This action is also required to support the International Trade Data System (ITDS), a key White House economic initiative that will automate the filing of export and import information by the trade. This proposal would also remove obsolete regulations and make clarifying changes. It also announces AMS' intention to request revision to a currently approved information collection for exported apples and grapes.

    DATES:

    Comments must be received by January 4, 2017.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposal will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Shannon Ramirez, Compliance and Enforcement Specialist, or Vincent Fusaro, Compliance and Enforcement Branch Chief, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposed rule is issued under the Export Apple Act (7 U.S.C. 581-590) and the Export Grape and Plum Act (7 U.S.C. 591-599) (together hereinafter referred to as the “Export Fruit Acts”). The Export Fruit Acts promote foreign trade of U.S.-grown fruit by authorizing the implementation of regulations related to quality, container markings, and inspection requirements. These regulations are contained in 7 CFR part 33 (Regulations Issued under the Export Apple Act) and 7 CFR part 35 (Export Grapes and Plums).

    Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.

    Executive Order 13175

    This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect and shall not abrogate nor nullify any other regulations, whether State or Federal, dealing with the same subjects. It is intended that all such regulations shall remain in full force and effect except in so far as they are inconsistent herewith or repugnant hereto (7 U.S.C. 587; 7 U.S.C. 597).

    The Export Fruit Acts provide for administrative proceedings that must be exhausted before parties may file suit in court. Pursuant to 7 U.S.C. 586 and sections 33.13 and 33.14 of the regulations (for apples) and 7 U.S.C. 596 and sections 35.14 and 35.15 of the regulations (for grapes), any person subject to the Export Fruit Acts may file with USDA a request for hearing, along with a written responsive answer to alleged violations of the provisions of the Export Fruit Acts and regulations, no later than 10 days after service of notice of alleged violations. After opportunity for hearing, the Secretary is authorized to refuse the issuance of certificates under the Export Fruit Acts for a period not exceeding 90 days.

    This proposed rule would change the reporting of export certificate information under regulations issued pursuant to both the Export Apple Act and the Export Grape and Plum Act (7 CFR part 33, “Regulations Issued Under Authority of the Export Apple Act,” and 7 CFR part 35, “Export Grapes and Plums,” respectively). Shippers of apples and grapes exported from the United States subject to inspection would be required to enter the certificate number from inspection certificates (i.e., Export Form Certificates) into AES. For apples shipped to Canada in bulk containers, which are exempt from inspection requirements, shippers would be required to enter a special USDA-defined exemption code in lieu of an Export Form Certificate number. Shippers would also be required to maintain paper or electronic copies of the certificates and to provide copies to AMS upon request. AMS is responsible for monitoring apple and grape export shipments, and these proposed regulatory changes would help ensure that these shipments comply with inspection and certification requirements.

    This proposed rule would also define “shipper” and would remove the requirement that carriers of exported apples and grapes retain certificates on file (because the requirement to retain the certificates would shift to shippers of exported apples and grapes). It would also remove regulations that are no longer applicable to grape exports and add structure and language to clarify the regulations.

    Plums are not currently regulated under the Export Grape and Plum Act; therefore, this change would not impact shipments of plums exported from the United States. If plums exported from the United States are regulated in the future under the Export Grape and Plum Act, the reporting of export certificate information similar to what is being proposed herein for exported grapes and apples would be proposed.

    Sections 33.11(a) and 35.12(b) of the regulations issued under the Export Fruit Acts for apples and grapes, respectively, specify that, prior to export, the fruit must be inspected by the Federal or Federal-State Inspection Service (unless the fruit is otherwise exempted from inspection under the Export Fruit Acts). These sections further specify that Export Form Certificates must be issued by the inspection service and must contain a statement indicating the fruit meets the requirements of the Export Fruit Acts. Additionally, these sections currently require that shippers provide a copy of the certificates to the export carrier or, in those instances where the fruit is inspected and certified at any location other than the port of exportation, to the agent of the first carrier who transports the fruit to port for exportation. These two sections also currently contain requirements related to the retention of certificates by export carriers and spray residue tolerance.

    Section 33.12 of the export apple regulations specifies those apples that are not subject to regulation, including apples shipped to Canada in bulk containers (§ 33.12(d)), which are containers that hold a quantity of apples weighing more than 100 pounds.

    Sections 33.2 and 33.4 of the export apple regulations and §§ 35.2 and 35.4 of the export grape regulations define “person” and “carrier,” respectively. The term “shipper” is used in parts 33 and 35 but is not currently defined in either of those regulations.

    Filing Export Information in the Automated Export System (AES)

    The Foreign Relations Authorization Act (FRAA) (Pub. L. 107-228) authorizes regulations requiring that all persons who are required to file export information under Chapter 9 of Title 13 of the U.S. Code (Collection and Publication of Foreign Commerce and Trade Statistics) file such information through the Automated Export System (AES) for all shipments where a paper Shipper's Export Declaration was previously required. As such, shippers of most U.S.-grown apples and grapes are required to electronically file export shipment information in AES.

    AES is a joint venture between U.S. Customs and Border Protection (CBP) and the U.S. Census Bureau (Census) that was implemented in phases, starting in 1995. It is a nationwide system, available at all U.S. ports, that serves as a central point for the electronic collection of export data that are used by several different Federal government agencies including Census and CBP. Census regulations issued under the authority of the FRAA and related to AES include the Foreign Trade Regulations (15 CFR part 30) and the Export Clearance Requirements (15 CFR part 758).

    AMS is responsible for enforcing the regulations under the Export Fruit Acts, including verifying that exported apples and grapes that are subject to regulation are inspected and certified as meeting quality requirements. However, the Export Fruit Acts regulations do not currently require that shippers provide AMS with information about inspected and certified fruit.

    AMS has determined that access to the Census Bureau's AES data would allow AMS to monitor compliance with and enforce the regulations issued under the Export Fruit Acts. As a result, AMS and Census have entered into a Memorandum of Understanding that will give AMS access to certain specific data in the AES related to apple and grape exports, including an Export Form Certificate number that is associated with each lot of inspected and certified fruit or, in lieu of a certificate number, a USDA-defined exemption code (BULK CONTRS) for apples shipped to Canada in bulk containers.

    For those apples and grapes subject to inspection, information about each inspected lot of apples or grapes is noted on an Export Form Certificate (FV-205 or FV-207 paper form; FV-205e and FV-207e electronic form) that is completed by an inspector. In addition to stating whether the lot meets the export requirements, the certificate also contains information about the date and place of inspection; the name of the applicant; and the quantity, variety, and identification marks of the lot. The certificate is provided to the shipper and is identified with a unique certificate number. The inspection service that inspects and certifies the export shipment will also electronically maintain the certificate information.

    AMS believes that the most effective way to verify that apple and grape exports meet export inspection and certification requirements would be to have shippers enter the unique Export Form Certificate numbers into the AES. AMS would then verify the validity of a certificate number by cross-referencing it and the associated shipment information with inspection data (e.g., certificate number, variety, quantity) that AMS would receive from its Specialty Crops Inspection (SCI) Division.

    Some exported apples and grapes are exempt from the inspection requirements of the Export Fruit Acts regulations pursuant to § 33.12 for apples and §§ 35.12 and 35.13 for grapes. In most instances, information about a shipment (e.g., the weight and destination of the shipment) that is entered by a shipper (or shipper's agent) into AES will determine if the shipper is required to also enter an Export Form Certificate number in AES. As an example, a shipment of apples weighing less than 5,000 pounds exported to any foreign country is exempt from inspection requirements. If a shipment of apples weighing 4,000 pounds is destined for Canada, this information would be entered into AES. From that AES shipment information, the system would determine that entry of an Export Form Certificate number was not required because the shipment is exempt from inspection requirements.

    In comparison, if a shipment of apples weighing 6,000 pounds in bulk containers is destined for Canada, the shipper's entry of that shipment's weight and destination into AES would trigger the requirement that the shipper enter an Export Form Certificate number because the weight and destination of the shipment would meet the parameters associated with mandatory inspection. However, apples in bulk containers destined for Canada are exempt from inspection requirements pursuant to § 33.12(d). Currently, there is no mechanism within AES that will recognize this exemption, so USDA has created a special exemption code (BULK CONTRS) that shippers of these apples would enter in the Export Form Certificate field in lieu of a certificate number. Entry of this special USDA-defined exemption code would enable shippers of apples in bulk containers destined for Canada to complete the entry of information in AES.

    In the future, AMS intends to work with Census to develop a new harmonized tariff schedule (HTS) code specifically for exported apples in bulk containers that are destined for Canada. Once this HTS code is developed, shippers would enter that code into AES, which would signal to AES that the shipment is exempt and would therefore not require entry of the special exemption code. Once this new HTS code becomes available, changes to the regulations would be proposed to remove the requirement to enter the special BULK CONTRS exemption code.

    As noted earlier, most shippers are accustomed to entering data about exports into AES to create mandatory Electronic Export Information (EEI) about each shipment. There are various methods for filing EEI into AES, such as through AES-certified software from a third-party vendor or through AESDirect, a free Internet application supported by Census. The EEI contains basic information about an export including but not limited to the names and addresses of the parties to a transaction; the Harmonized Tariff Schedule number; and the description, quantity, and value of the exported items. In 2014, the Census Bureau agreed to mandate entry of the Export Form Certificate number (or the exemption code for apples shipped in bulk containers to Canada) by shippers in the AES for AMS' tracking and enforcement purposes. Shippers would be required to electronically enter Export Form Certificate numbers or the exemption code for bulk container apples destined for Canada (BULK CONTRS) in AES. To require that shippers enter the Export Form Certificate number or, when applicable, the BULK CONTRS exemption code, the Export Fruit Acts regulations would be revised to add a new § 33.11(b) for apples and a new § 35.12(d) for grapes.

    This proposed action would also require a shipper to maintain and submit, upon request, a paper or electronic copy of the Export Form Certificate to AMS. As previously noted, AMS would compare EEI from AES against inspection information from its SCI Division. However, there could be instances when AMS might need further verification of inspection and would, therefore, need to request a copy of the Export Form Certificate from the shipper. For example, if a certificate number in AES does not match any certificate numbers in SCI-provided data, AMS might require that the shipper provide a copy of an Export Form Certificate to AMS so that the information on that certificate could be compared against the EEI from AES. These proposed changes would give AMS the ability to track exports of apples and grapes to confirm that quality requirements are being met. Accordingly, this requirement would be added to the Export Fruit Acts regulations in § 33.11(c) for apples and § 35.12(c) for grapes.

    In conjunction with these proposed new recordkeeping requirements, this proposed action would also remove the requirement in § 33.11(a) for apples and § 35.12(c) for grapes that carriers of exported fruit retain a copy of the Export Form Certificate. This requirement would no longer be necessary for AMS compliance monitoring because, as proposed herein, shippers would be required to retain a copy of the certificate (and upon request, the shipper would be required to provide such copy, electronically or in paper form, to AMS).

    Streamlining the Export Process Under the International Trade Data System (ITDS)

    Changing the Export Fruit Acts regulations to provide for the electronic entry of an Export Form Certificate number supports the International Trade Data System (ITDS), a key White House economic initiative that has been under development for over ten years and is mandated for completion by December 31, 2016 (pursuant to Executive Order 13659, Streamlining the Export/Import Process for America's Businesses, signed by President Obama on February 19, 2014; 79 FR 10657). Under ITDS, the export and import trade will file shipment data through an electronic “single window,” instead of completing multiple paper-based forms to report the same information to different government agencies. ITDS will greatly reduce the burden on America's export and import trade while still providing information necessary for the United States to ensure compliance with its laws.

    By the end of 2016, the ITDS “single window” will be presented to the export and import trade through CBP's Automated Commercial Environment (ACE) platform. ACE will be the primary system through which the global trading community will file information about imports and exports so that admissibility into the U.S. may be determined and government agencies may monitor compliance.

    In March 2014, AES functionality was incorporated into ACE, and export transactions are now processed in ACE. The migration of AES functionality to ACE was, for the most part, transparent to filers of export shipment data. This system migration supports the ITDS “single window” because, as noted earlier, ACE will be the system primarily used by the trade community to file import and export shipment data, with the functionality of AES embedded within that system.

    Prior to the implementation of the ITDS “single window,” CBP is requiring that the 47 partnering government agencies (PGAs) that are participating in the ITDS project, including AMS, ensure that agency regulations provide for the electronic entry of export and/or import information.

    AMS' Marketing Order and Agreement Division (MOAD) is currently developing the functionality of a new automated system called the Compliance and Enforcement Management System (CEMS) that will store and analyze data in support of ITDS. CEMS will receive export data from the ACE system that will be utilized in monitoring compliance with regulations under the Export Fruit Acts.

    The revised reporting requirements for exported apples and grapes will meet CBP's requirements for ITDS/ACE by providing for the electronic entry of the Export Form Certificate number (or the special BULK CONTRS exemption code, when applicable).

    Miscellaneous Proposed Changes

    In addition to the previously described changes, this action would make changes to update and clarify the regulations. First, a definition of “shipper” would be added to the regulations in § 33.9 for apples and § 35.9 for grapes. This change is intended to provide clarity about a commonly used term.

    Additionally, gender-specific language would be changed from “he” to “he or she” in new § 33.11(d) and § 35.12(e).

    In addition, existing § 35.12(d) would be removed because it is no longer needed. The requirements in § 35.12(d) were enacted to fulfill provision 2 of the Export Grape and Plum Act (7 U.S.C. 592), which provides that grapes could be shipped in fulfillment of contracts that were entered into prior to the effective date of the Export Grape and Plum Act regulations, as long as those grapes were shipped within 2 months of the date of the contracts. The intent of § 35.12(d) was to provide exporters with an opportunity to meet prior contractual obligations and comply with the newly enacted regulations without meeting additional requirements. Because the need for § 35.12(d) no longer exists, this section would be removed.

    Finally, in addition to new paragraphs being added to §§ 33.11 and 33.12, existing §§ 33.11(a) and 35.12(b)(2) would be reorganized into multiple paragraphs in an effort to make the regulations easier to read, understand, and follow. Adding additional requirements to already lengthy paragraphs might cause confusion and misunderstanding; therefore, reorganization was deemed to be appropriate. To further improve the overall readability of §§ 33.11 and 35.12, headings would also be added at the beginning of each paragraph to help the reader quickly identify the paragraph's content.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Small agricultural service firms, including shippers and carriers, are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

    This proposed rule would change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act (7 CFR part 33, “Regulations Issued Under Authority of the Export Apple Act,” and 7 CFR part 35, “Export Grapes and Plums,” respectively) by requiring shippers of apples and grapes exported from the United States to enter into AES the certificate numbers of Export Form Certificates for such exports (or, in lieu of certificate numbers, the exemption code BULK CONTRS for apples in bulk bins destined for Canada). It would also require shippers to provide, upon request, paper or electronic copies of the certificates to AMS. It would also remove the requirement that carriers retain copies of the certificates. Plums are not currently regulated under 7 CFR part 35, so this change has no impact on exporters or carriers of plums.

    Requiring shippers of apples and grapes to electronically enter an export certificate number (or the BULK CONTRS exemption code) would have very little impact on them. The certificate number is currently provided to shippers on the certificate they receive from the Federal or Federal-State Inspection Service, and AMS is providing the special BULK CONTRS exemption code to shippers for those instances when it is required. Also, shippers already use AES to enter Electronic Export Information (EEI) about shipments, currently approved for collection under OMB No. 0607-0152, and entry of the certificate number or exemption code would be part of that EEI process.

    Finally, shippers currently provide copies of Export Form Certificates to other parties, such as carriers, as required by the Export Fruit Acts regulations. Therefore, requiring shippers to provide AMS with a copy of an Export Form Certificate (upon request, when other methods of compliance verification are not available to AMS) would be a usual and customary practice. This proposed action would also require that shippers maintain certificates (electronic or paper) on file for a minimum of three (3) years in the event AMS would require that a shipper provide proof of inspection for compliance purposes. Maintaining records, such as export certificates, is a standard business practice and, therefore, should not have a major economic impact on shippers.

    These proposed changes would create a minimal burden on shippers while providing AMS with the ability to properly monitor export shipments for compliance with the regulations.

    Removing the requirement that carriers of exported apples and grapes retain copies of inspection certificates (Export Form Certificates) would reduce the recordkeeping burden on those carriers.

    According to apple industry statistics, there are approximately 60 shippers of exported apples subject to regulation under the Export Apple Act. USDA's Foreign Agricultural Service (FAS) data estimates the value of fresh apple exports subject to regulation in 2015 was approximately $1.0 billion. Therefore, the estimated receipts for shippers of exported apples is well over $7,500,000.

    According to grape industry information, there are approximately 14 shippers of exported grapes subject to regulation under the Export Grape and Plum Act. Data provided by FAS indicate that the estimated value of grape exports in 2015 that were subject to these regulations was $512 million. Therefore, the estimated receipts for shippers of exported grapes is well over $7,500,000.

    USDA estimates there are approximately 15 carriers of exported apples and 5 carriers of exported grapes that would be impacted by the lessening of regulatory requirements proposed by this action. USDA does not have access to data about the business sizes of these carriers.

    Based on the above information, it may be concluded that a majority of shippers of exported apples and grapes would not be classified as small businesses. USDA is unable to make a determination about whether carriers of exported apples and grapes could be classified as small businesses.

    This proposed rule is issued under the authority of the Export Apple Act (7 U.S.C. 581-590), and the Export Grape and Plum Act (7 U.S.C. 591-599). This proposed rule proposes changing “Regulations Issued under Authority of the Export Apple Act” (7 CFR part 33) and “Export Grapes and Plums” (7 CFR part 35). This action would require shippers of apples and grapes exported from the United States to enter the Export Form Certificate number for those exports into the U.S. Census Bureau's Automated Export System (AES) (or, in lieu of a certificate number, to enter exemption code BULK CONTRS for apples in bulk containers destined for Canada). It would also require shippers to maintain and provide, upon request, a paper or electronic copy of the Export Form Certificate to AMS and would remove the requirement that carriers retain copies of the certificates. These changes to the reporting requirements would allow AMS to verify that shipments of exported apples and grapes are in compliance with the quality requirement regulations.

    There are estimated to be 60 shippers of U.S.-grown apples, 14 shippers of U.S.-grown grapes, and 20 carriers of these apples and grapes subject to the Export Fruit Acts regulations. The shippers currently receive copies of Export Form Certificates from the Federal or Federal-State Inspection Service upon completion of an inspection of apples or grapes destined for export. The regulations currently require that the shippers provide copies of the certificates to the export carriers who transport the fruit, and these carriers are, in turn, required to keep these certificates on file for at least three years following the date of export. The burden of recordkeeping for the maintenance of these certificates is currently approved by the Office of Management and Budget (OMB) under OMB No. 0581-0143, “Export Fruit Acts” (7 U.S.C. 581-590 and 7 U.S.C. 591-599).

    Regarding alternatives to this proposed action, AMS considered making no changes to the Export Fruit Acts regulations. However, AMS determined that having the Export Form Certificate number for apples and grapes exported from the United States is necessary for monitoring compliance of these shipments with the regulations. AMS also considered not requiring shippers of apples in bulk containers destined for Canada to enter a special USDA-defined exemption code in lieu of a certificate number. However, until a new HTS code is created for these exempt apples, shipments of bulk containers of apples destined for Canada will require entry of data in the AES export certificate number field; therefore, the BULK CONTRS exemption code would enable shippers of these apples to complete the electronic entry of export data in AES.

    AMS also considered requiring shippers to provide AMS with a paper or electronic copy of all Export Form Certificates (rather than just upon request) but determined that entering the certificate number in AES would be less burdensome for shippers. AMS also determined that this change would meet CBP's requirement that all government agencies who are partnering with CBP on the ITDS project (including AMS) update their regulations to provide for the electronic entry of export and import shipment data.

    AMS also considered not requesting a shipper to submit a copy of an Export Form Certificate upon request; however, there may be some unique cases where additional verification of compliance would be required if AES or SCI data were not sufficient.

    Finally, AMS considered keeping the requirement that carriers maintain copies of the Export Form Certificates on file; however, AMS determined that the other changes proposed herein would make this requirement redundant and burdensome. Therefore, alternatives to this proposed rule were rejected.

    This proposed rule would revise the information collection currently approved under OMB No. 0581-0143 by increasing the existing recordkeeping burden on shippers and reducing the existing recordkeeping burden on carriers. These changes in burden will be further explained in the Paperwork Reduction Act section below.

    AMS is responsible for enforcing the regulations of the Export Fruit Acts, including verification that export shipments of apples and grapes meet quality requirements. Currently, the regulations do not require shippers of these export fruits to provide AMS with proof of inspection and certification compliance. Without this proposed change to the regulations, AMS will lack the ability to effectively meet its duty of enforcement.

    AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate because (1) the export industry is fully aware of ITDS and its goal to streamline and automate paper-based processes and has attended annual ITDS Trade Support Network plenary sessions conducted by the U.S. government over the past few years, and (2) CPB is requiring the timely update of import and export regulations to meet the ITDS electronic data submission requirement. All written comments timely received will be considered before a final determination is made on this matter.

    All written comments timely received will be considered before a final determination is made on this matter.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), AMS announces its intention to submit a revision to a currently approved information collection.

    Title: Export Fruit Acts, 7 U.S.C. 581-590 and 7 U.S.C. 591-599.

    OMB Number: 0581-0143.

    Type of Request: Revision.

    Abstract: The information collection requirements contained in this request are necessary for the administration of proposed amendments to regulations authorized by the Export Apple Act and the Export Grape and Plum Act (“Export Fruit Acts”). These regulations are found at 7 CFR part 33, “Regulations Issued under Authority of the Export Apple Act,” and 7 CFR part 35, “Export Grape and Plum Act.”

    Under the Export Fruit Acts regulations, unless otherwise exempted by those Acts, each shipment of fresh apples and grapes must be inspected by the Federal or Federal-State Inspection Service to ensure the fruit meets quality and other requirements effective under the Acts. This inspection and certification must occur prior to export. If the inspection service determines that a lot of apples or grapes intended for export meets the applicable quality requirements, the inspector completes an Export Form Certificate (currently, a paper FV-207 or electronic FV-207e for non-Canadian export destinations and a paper FV-205 or electronic FV-205e for exports to Canada), certifying the fruit meets quality export requirements and providing shipping identification information. This certificate is provided to the shipper of the apples or grapes. In turn, the shipper must then provide a copy of the certificate to the export carrier or, if the fruit is inspected and certified somewhere other than the port of exportation, to the agent of the first carrier who transports the fruit to port for exportation. Currently, export carriers must keep these certificate copies on file for at least three years after the date of export.

    A shipper does not currently complete any form or file with USDA any form or form-related information as part of this inspection and certification process.

    This proposed action would establish a requirement that shippers enter the Export Form Certificate number assigned to each inspection certificate into the Automated Export System (AES), an existing system that facilitates the electronic entry of information about export shipments. The Marketing Order and Agreement Division (MOAD) would cross-reference this certificate number and the associated export shipment information (EEI) with inspection information provided electronically to MOAD by SCI, thereby allowing MOAD to monitor compliance with the regulations. The collection of AES data, which would include the Export Form Certificate number or the special BULK CONTRS exemption code, is approved under the Census Bureau's OMB No. 0607-0152; therefore, the estimated burden associated with the electronic entry of the certificate number will not be included in this USDA action.

    In addition, this proposed action would require shippers to maintain and provide, upon request, a paper or electronic copy of the Export Form Certificate to MOAD when needed to monitor compliance with regulations. MOAD anticipates that the majority of its compliance monitoring would be accomplished by verifying the Export Form Certificate number and other EEI entered by a shipper into AES against inspection data provided by SCI; however, when needed, MOAD would request copies of these certificates from shippers to help verify that apple and grape exports meet export inspection and certification requirements.

    Finally, this proposed action would remove the requirement that carriers retain a copy of the Export Form Certificate. As noted above, this action would add a requirement that a shipper maintain and provide to MOAD, upon request, a paper or electronic copy of the certificate. MOAD would require a shipper to submit a copy of the certificate in those cases when it would be needed to monitor compliance. Because shippers would be responsible for maintaining and submitting the certificates, upon request, MOAD would no longer require a carrier to retain a copy of these certificates for its compliance purposes.

    A shipper's failure to provide proof of compliance to MOAD could result in a compliance investigation and legal action, if warranted.

    The information collection under OMB No. 0581-0143 was last approved in 2013. On June 14, 2016, AMS published a 60-day Notice in the Federal Register announcing its intent to renew the collection (81 FR 38656-57), followed by a 30-day Notice in the Federal Register for OMB review (81 FR 55428).

    The currently approved collection authorizes the use of FV-207 (inspection certificate for export shipments bound for non-Canadian destinations). In the 2016 renewal, AMS added the FV-205 form (inspection certificate for Canadian-bound export shipments) that is also used by SCI (the FV-205 was not previously approved under this or any other OMB collection) and revised it to combine information from the existing FV-205 and FV-207 forms. As a result, the existing FV-207 will be discontinued. In the 2016 renewal, AMS is also seeking OMB approval to decrease the burden per certificate from the currently approved 15 minutes to 5 minutes. This is sufficient time to complete the related recordkeeping actions.

    In the last renewal of the collection in 2013, it was reported that a total of 102 respondents (68 shippers and 15 carriers for exported apples, and 14 shippers and 5 carriers for exported grapes) use FV-207. Current industry data indicate a slight reduction in the estimated number of export apple shippers (60) but no changes in the estimated number of export grape shippers (14) or carriers of export apples (15) and grapes (5).

    The 2013 renewal reported the number of certificates per year to be approximately one response per respondent. This suggested that there were only 102 certificates issued per year. This was reported in error, and the 2016 renewal provides more accurate figures. USDA's Foreign Agricultural Service estimates that, for the five-year period 2011-2015, the average number of export apple and grape shipments requiring inspection per year was 42,326 for apples and 10,462 for grapes, for a total five-year average of 52,788 certificates per year that would need to be maintained.

    Based on this information and the proposed decreased burden per certificate, the 2016 renewal estimates a total recordkeeping burden of 4,381 hours, an increase of 4,356 burden hours from the currently approved 25 burden hours.

    In addition, AMS estimates it may require shippers to submit approximately 10 percent of these certificates (5,279) upon request. The estimated burden for maintaining the revised FV-205 form certificates as well as for submitting an estimated 10 percent of those certificates to AMS, when requested, would be 5 minutes, which is less than the current 15-minute recordkeeping burden. As a result of this action, the information collection package would be revised to reflect a total estimated recordkeeping burden of 4,837 hours. Since carriers would no longer be required to keep copies of the certificates, the current recordkeeping burden for carriers of apples and grapes would be removed. AMS would submit a Justification for Change to OMB for approval that encompasses these revisions.

    As noted earlier, the FV-205 form is being revised to combine the information contained on the existing FV-205 and FV-207 forms; this change will result in discontinuance of the FV-207 form. The FV-205 update also adds instructions for the shipper regarding entry of the Export Form Certificate number in AES for exported apples and grapes and revises the text to include a burden statement and other minor modifications, such as updating the program name in the form heading. SCI will continue to use the existing electronic versions of the forms (FV-205e and FV-207e) until SCI's Fresh Electronic Inspection Reporting System (FEIRS) is modified to reflect the data contained in the revised FV-205 form. FEIRS allows inspectors to electronically enter and report inspection data; it is able to electronically transmit a certificate to an email address or fax number, or the certificate may be printed. Once the necessary FEIRS revisions are completed to enable entry of data to the revised FV-205e form, the FV-207e form will be discontinued.

    Estimate of Burden: The public reporting burden for this collection of information is estimated to average 5 minutes per response for retention of the certificate by shippers and also for submission, upon request, of the certificate by shippers to MOAD.

    Respondents: Shippers of apple exports and grape exports.

    Estimated Number of Respondents: 74 (60 for apples and 14 for grapes).

    Estimated Total Annual Responses: 58,067 (42,326 certificates maintained and 4,233 certificates potentially submitted to MOAD for apples; and 10,462 certificates maintained and 1,046 certificates potentially submitted to MOAD for grapes).

    Estimated Number of Responses per Respondent: 775 for apples and 822 for grapes.

    Estimated Total Annual Burden on Respondents: 4,837 hours.

    Comments are invited on: (1) 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; (2) 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; (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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments should reference OMB No. 0581-0143 and “Export Fruit Acts.” Comments should be sent to USDA in care of the Docket Clerk at the previously mentioned address. All comments received will be available for public inspection during regular business hours at the same address.

    AMS is committed to compliance with the Government Paperwork Elimination Act, which requires government agencies in general to provide the public with the option of submitting information or transacting business electronically to the maximum extent possible.

    List of Subjects 7 CFR Part 33

    Apples, Exports, Pears, Reporting and recordkeeping requirements.

    7 CFR Part 35

    Administrative practice and procedure, Exports, Grapes, Plums, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, AMS proposes to amend 7 CFR parts 33 and 35 as follows:

    PART 33—REGULATIONS ISSUED UNDER AUTHORITY OF THE EXPORT APPLE ACT 1. The authority citation for 7 CFR part 33 continues to read as follows: Authority:

    48 Stat. 124; 7 U.S.C. 581-590.

    2. Add new § 33.9 to read as follows:
    § 33.9 Shipper.

    Shipper means any person who ships or offers for shipment apples to any foreign destination.

    3. Revise § 33.11 to read as follows:
    § 33.11 Inspection and certification.

    (a) Inspection and certification. Each person shipping, or offering for shipment, apples to any foreign destination shall cause them to be inspected by the Federal or Federal-State Inspection Service in accordance with regulations governing the inspection and certification of fresh fruits, and vegetables and other products (Part 51 of this title) and certified as meeting the requirements of the Act and this part. No carrier shall transport apples, or receive apples for transportation to any foreign destination unless they have been so inspected and certified. Inspection and certification may be obtained at any time prior to exportation of the apples. Such a Federal or Federal-State certificate shall be designated as an “Export Form Certificate” and shall include the following statement: “Meets requirements of Export Apple Act.”

    (b) Export Form Certificate number. The shipper (or shipper's authorized agent) shall enter the Export Form Certificate number in the Automated Export System (AES), pursuant to the Electronic Export Information (EEI) filing requirements under the Foreign Trade Regulations (15 CFR part 30) and Export Clearance Requirements (15 CFR part 758), except the exemption code BULK CONTRS shall be entered for apples in bulk containers destined for Canada.

    (c) Delivery and filing of Export Form Certificate. The shipper shall deliver a copy of the Export Form Certificate or Memorandum of Inspection to the export carrier. Whenever apples are inspected and certified at any point other than the port of exportation, the shipper shall deliver a copy of the Export Form Certificate or Memorandum of Inspection to the agent of the first carrier that thereafter transports such apples, and such agent shall deliver the copy to the proper official of the carrier on which the apples, covered by the certificate or memorandum, are to be exported. The shipper shall also maintain an electronic or paper copy of the Export Form Certificate for a period of not less than three (3) years after date of export and shall submit, upon request from USDA, an electronic or paper copy of the Export Form Certificate to USDA, AMS, Specialty Crops Program, Marketing Order and Agreement Division, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; telephone (202) 720-4607; fax (202) 720-5698; or email [email protected]

    (d) Spray residue tolerance. If the inspector has reason to believe that samples of a lot of apples have been obtained for a determination as to compliance with tolerance for spray residue, established under the Federal Food, Drug and Cosmetic Act, as amended (52 Stat. 1040; 21 U.S.C. 301 et seq.), he or she shall not issue a certificate on the lot unless it complies with such tolerances.

    PART 35—EXPORT GRAPES AND PLUMS 4. The authority citation for 7 CFR part 35 continues to read as follows: Authority:

    74 Stat. 734; 75 Stat. 220; 7 U.S.C. 591-599.

    5. Add § 35.9 to read as follows:
    § 35.9 Shipper.

    Shipper means any person who ships or offers for shipment any variety of vinifera species table grapes to any foreign destination.

    6. Revise § 35.12 to read as follows:
    § 35.12 Inspection and certification.

    (a) Inspection. Each person shipping or offering for shipment any variety of vinifera species table grapes to any foreign destination other than destinations in Canada or Mexico shall cause them to be inspected within 14 days prior to date of export by the Federal or Federal-State Inspection Service in accordance with regulations governing the inspection and certification of fresh fruits, vegetables, and other products (part 51 of this title) and certified as meeting the requirements of the Act and this part.

    (b) Certification. The Federal or Federal-State certificate shall be designated as an “Export Form Certificate” and shall include one of the following statements as applicable:

    (1) For any variety meeting specifications of paragraph (a) of § 35.11 “Meets requirements of Export Grape and Plum Act” or (2) For any variety meeting specifications of paragraph (b) of § 35.11 “Meets requirements of Export Grape and Plum Act except for export to destinations in Europe, Greenland, or Japan.” No carrier shall transport or receive for transportation any such variety to any foreign destination other than Canada or Mexico unless a copy of the Export Form Certificate issued thereon showing that the grapes meet requirements for the applicable export destination is surrendered to such carrier when such variety is received.

    (c) Delivery and filing of Export Form Certificate. The shipper shall deliver a copy of the Export Form Certificate covering the shipment to the export carrier. Whenever grapes are inspected and certified at any point other than port of exportation, the shipper shall deliver a copy of the Export Form Certificate to the agent of the first carrier that thereafter transports such grapes, and such agent shall deliver such copy to the proper official of the carrier on which the grapes are to be exported. The shipper shall also maintain an electronic or paper copy of the Export Form Certificate for a period of not less than three (3) years after date of export and shall submit, upon request from USDA, an electronic or paper copy of the Export Form Certificate to USDA, AMS, Specialty Crops Program, Marketing Order and Agreement Division, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; telephone (202) 720-4607; fax (202) 720-5698; or email [email protected]

    (d) Export Form Certificate number. The shipper (or shipper's authorized agent) shall enter the Export Form Certificate number in the U.S. Census Bureau's Automated Export System (AES), pursuant to the Electronic Export Information (EEI) filing requirements under the Foreign Trade Regulations (15 CFR part 30) and Export Clearance Requirements (15 CFR part 758).

    (e) Spray residue tolerance. If the inspector has reason to believe that samples of a lot of any variety of vinifera species table grapes have been obtained for a determination as to compliance with tolerance for spray residue, established under the Federal Food, Drug and Cosmetic Act, as amended (52 Stat. 1040; 21 U.S.C. 301 et seq.), he or she shall not issue a certificate on the lot unless it complies with such tolerances.

    Dated: November 29, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-29017 Filed 12-2-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket No. EERE-2014-BT-STD-0031] RIN 1904-AD20 Energy Conservation Program: Energy Conservation Standards for Residential Furnaces AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Reopening of public comment period.

    SUMMARY:

    On September 23, 2016, the U.S. Department of Energy (DOE) published a supplemental notice of proposed rulemaking (SNOPR) and announcement of public meeting pertaining to proposed energy conservation standards for residential furnaces in the Federal Register. The notice provided an opportunity for submitting written comments, data, and information by November 22, 2016. This document announces a reopening of the public comment period for submitting comments and data on the SNOPR or any other aspect of the rulemaking for residential furnaces. The comment period is reopened until January 6, 2017.

    DATES:

    The comment period for the supplemental notice of proposed rulemaking published on September 23, 2016 (81 FR 65719) is reopened. DOE will accept comments, data, and information regarding this rulemaking received no later than January 6, 2017.

    ADDRESSES:

    Instructions: Any comments submitted must identify the SNOPR on Energy Conservation Standards for Residential Furnaces, and provide docket number EERE-2014-BT-STD-0031 and/or regulatory information number (RIN) 1904-AD20. Comments may be submitted using any of the following methods:

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

    (2) Email: [email protected] Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use of special characters or any form of encryption.

    (3) Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    (4) Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., 6th Floor, Washington, DC 20024. Telephone: (202) 586-6636. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index may not be publicly available, such as those containing information that is exempt from public disclosure.

    The docket Web page can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2014-BT-STD-0031. The docket Web page contains simple instructions on how to access all documents, including public comments, in the docket.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1692. Email: [email protected]

    Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6307. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    On September 2, 2016, DOE issued a pre-publication supplemental notice of proposed rulemaking (September 2016 SNOPR) pertaining to proposed energy conservation standards for residential furnaces on the Appliance and Equipment Standards Web page http://energy.gov/eere/buildings/downloads/issuance-2016-09-02-energy-conservation-program-energy-conservation. DOE also posted on the same Web page its analytical tools and supplementary documentation for residential furnaces. In that pre-publication notice, DOE provided for a 30-day comment period. Following the issuance of the pre-publication notice, Spire Inc., the Air-Conditioning, Heating, and Refrigeration Institute (AHRI), and the American Gas Association and American Public Gas Association (AGA/APGA, jointly) submitted requests that DOE extend the 30-day comment period by 60 additional days. (Spire, No. 219 at p. 1; AGA/APGA, No. 220 at pp. 1-3; AHRI, No. 221 at p. 1) These commenters requested additional time to review DOE's analytical tools and supplementary materials supporting the September 2016 SNOPR. To accommodate those requests, DOE extended the comment period by 30 days when it published in the Federal Register the September 23, 2016 SNOPR, providing for a comment period of 60 days ending November 22, 2016. 81 FR 65719. During the SNOPR public meeting on October 17, 2016, DOE noted that between the date of issuance of the pre-publication notice (along with analytical tools and documentation) and the end of the comment period on November 22, 2016, interested parties would have had 81 days to review the notice, analytical tools and supplementary documentation. (DOE, No. 243 at p. 213)

    Following publication in the Federal Register of the September 2016 SNOPR on September 23, 2016, commenters again requested that DOE extend the comment period to provide for a 90 day total comment period. (AGA/APGA, No. 232 at p. 1; Spire, No. 234 at p. 14; APGA, No. 235 at p. 2; Lennox, No. 245 at pp. 1-2; Heating, Air-conditioning, and Refrigeration Distributors International and Air-Conditioning Contractors of America, No. 251 at p. 1; APGA, SNOPR Public Meeting Transcript, No. 243 at p. 31) Some commenters subsequently submitted requests for an even longer extension, equivalent to a total 120 day comment period. (Spire, No. 241 at pp. 1-2; AGA/APGA, No. 242 at pp. 1-2; AHRI, No. 244 at p. 1; Carrier, No. 250 at p. 1) Spire submitted an additional comment that a 90-day comment period would be acceptable, and AGA requested that DOE issue a written response to the comment period extension requests. (Spire, No. 247 at p.1; AGA, No. 249 at p.1) In general, commenters suggested that the quantity of supplemental information supporting the rulemaking analysis warranted additional time for review. The National Resource Defense Council (NRDC) suggested that DOE's extension from the 30-day comment period in the pre-publication notice to the 60-day period at publication represented a delay, and recommended that DOE not extend the comment period any further. (NRDC, SNOPR Public Meeting Transcript, No. 243 at p. 50)

    In view of the requests for an additional comment period extension for the September 2016 SNOPR, DOE has determined that a reopening of the public comment period and a 45-day extension to January 6, 2017 for the September 2016 SNOPR is appropriate. The comment period is reopened until January 6, 2017. DOE further notes that any submissions of comments or other information submitted between the original comment end date and January 6, 2017 will be deemed timely filed.

    Issued in Washington, DC, on November 21, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-29080 Filed 12-2-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9432; Directorate Identifier 2016-NM-116-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 737-800, -900, and -900ER series airplanes. This proposed AD was prompted by reports indicating in-flight valve failure of the left temperature control valve and control cabin trim air modulating valve. This proposed AD would require replacing the left temperature control valve and control cabin trim air modulating valve. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 19, 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 90740-5600; 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-2016-9432.

    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-2016-9432; 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:

    Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; 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-2016-9432; Directorate Identifier 2016-NM-116-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received reports indicating in-flight valve failure of the left temperature control valve and control cabin trim air modulating valve. These valves can fail in their open positions causing elevated temperatures in the flight deck or the passenger cabin during cruise. Operators have reported events where they were unable to control the flight deck and passenger cabin temperatures during cruise. This condition, if not corrected, could result in temperatures in excess of 100 degrees Fahrenheit in the flight deck or the passenger cabin during cruise, which could lead to the impairment of the flightcrew and consequent risk of loss of continued safe flight and landing. Such elevated temperatures could result in diverted flights since the flight deck door cannot be opened for an extended time during cruise. Airplanes on extended operation routes are most at risk because they can be 3 hours away from the nearest airport.

    Related Service Information Under1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-21A1203, dated June 8, 2016. The service information describes procedures for replacing the left temperature control valve and control cabin trim air modulating valve, part number 398908-4, with new part number 398908-3 or 398908-5. 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-2016-9432.

    Costs of Compliance

    We estimate that this proposed AD affects 319 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 Replacement of valves 9 work-hours × $85 per hour = $765 per replacement $4,800 $5,565 per replacement $1,775,235 per replacement. 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-2016-9432; Directorate Identifier 2016-NM-116-AD. (a) Comments Due Date

    We must receive comments by January 19, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 737-800, -900, and -900ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-21A1203, dated June 8, 2016.

    (d) Subject

    Air Transport Association (ATA) of America Code 21, Air conditioning.

    (e) Unsafe Condition

    This AD was prompted by reports indicating in-flight valve failure of the left temperature control valve and control cabin trim air modulating valve. We are issuing this AD to prevent temperatures in excess of 100 degrees Fahrenheit in the flight deck or the passenger cabin during cruise, which could lead to the impairment of the flightcrew and consequent risk of loss of continued safe flight and landing.

    (f) Compliance

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

    (g) Replacement of the Left Temperature Control Valve and Control Cabin Trim Air Modulating Valve

    Within 60 months after the effective date of this AD, replace the left temperature control valve and control cabin trim air modulating valve, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-21A1203, dated June 8, 2016.

    (h) Parts Installation Prohibition

    As of the effective date of this AD, no person may install a temperature control valve, part number 398908-4, on either the left temperature control valve location or the control cabin trim air modulating valve location on any Model 737-800, -900, or -900ER airplane.

    (i) Exception to the Service Information

    Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-21A1203, dated June 8, 2016, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (j) 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 (k)(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 (j)(4)(i) and (j)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (k) Related Information

    (1) For more information about this AD, contact: Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; 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 90740-5600; 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 17, 2016. Phil Forde, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28631 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9434; Directorate Identifier 2016-NM-136-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 737-600, -700, -700C, -800, and -900 series airplanes. This proposed AD was prompted by an evaluation by the design approval holder (DAH) indicating that the web lap splices in the aft pressure bulkhead are subject to widespread fatigue damage (WFD). This proposed AD would require repetitive inspections of the web lap splices in the aft pressure bulkhead for cracking of the fastener holes, and repair if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 19, 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-2016-9434.

    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-2016-9434; 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:

    Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6450; 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-2016-9434; Directorate Identifier 2016-NM-136-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    Fatigue damage can occur locally, in small areas or structural design details, or globally, in widespread areas. Multiple-site damage is widespread damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Widespread damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site damage and multiple-element damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane. This condition is known as widespread fatigue damage. It is associated with general degradation of large areas of structure with similar structural details and stress levels. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

    The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

    The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

    In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

    Analysis by the DAH has determined that the web lap splices in the aft pressure bulkhead are susceptible to WFD for certain Model 737-600, -700, -700C, -800, and -900 series airplanes. This cracking, if left undetected, could result in possible rapid decompression and loss of structural integrity of the airplane.

    During in-service inspections of a 737-300 aft pressure bulkhead, one operator reported two cracks on the web lap splices outside the specified inspection area. Since Model 737-600, -700, -700C, -800, and -900 series airplanes have a similar structural design for the aft pressure bulkhead, cracks could develop in the same location on these airplanes.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016. The service information describes procedures for a low frequency eddy current inspection to detect cracking of each web lap splice of the aft pressure bulkhead at the fastener row common to the stiffener, and a high frequency eddy current inspection to detect cracking of each web lap splice of the aft pressure bulkhead at the fastener row not common to the stiffener. 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 these same type designs.

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this Proposed AD and the Service Information.”

    Difference Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016, specifies to contact the manufacturer for certain instructions, but this proposed AD would require using repair methods, modification deviations, and alteration deviations in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Costs of Compliance

    We estimate that this proposed AD affects 693 airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Cost per product Cost on U.S. operators Inspections 26 work-hours × $85 per hour = $2,210 per inspection cycle $2,210 per inspection cycle $1,531,530 per inspection cycle.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

    We 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-2016-9434; Directorate Identifier 2016-NM-136-AD. (a) Comments Due Date

    We must receive comments by January 19, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the web lap splices in the aft pressure bulkhead are subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct cracks of the web lap splices in the aft pressure bulkhead, which could result in possible rapid decompression and loss of structural integrity of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections

    Except as provided by paragraph (h) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016: Do a low frequency eddy current (LFEC) inspection to detect cracking of each web lap splice of the aft pressure bulkhead at the fastener row common to the stiffener, and a high frequency eddy current (HFEC) inspection to detect cracking of each web lap splice of the aft pressure bulkhead at the fastener row not common to the stiffener, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016.

    (1) If no crack is found: Repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016.

    (2) If any crack is found: Do the actions specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD.

    (i) Repair the crack before further flight using a method approved in accordance with the procedures specified in paragraph (i) of this AD. Although Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016, specifies to contact Boeing for repair instructions, and specifies that action as “RC” (Required for Compliance), this AD requires repair as specified in this paragraph.

    (ii) On areas that are not repaired, repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016.

    (h) Service Information Exception

    Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1353, dated July 21, 2016, specifies a compliance time “after the Original Issue date of this Service Bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (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) Except as required by paragraph (g)(2)(i) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (j) Related Information

    (1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6450; 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 17, 2016. Phil Forde, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28664 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9433; Directorate Identifier 2016-NM-159-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 all The Boeing Company Model MD-90-30 airplanes. This proposed AD was prompted by a report of cracking in a horizontal stabilizer rear spar cap. This proposed AD would require repetitive open hole eddy current high frequency (ETHF) or surface eddy current low frequency (ETLF) inspections for any crack in the left and right side horizontal stabilizer rear spar upper caps, and repair or replacement if necessary. We are proposing this AD to prevent the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 19, 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-2016-9433.

    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-2016-9433; 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:

    Haytham Alaidy, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; 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-2016-9433; Directorate Identifier 2016-NM-159-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received a report of cracking in an MD-90 horizontal stabilizer rear spar cap at station XE = +/−5.931. The affected airplane had accumulated 36,588 total flight hours and 24,975 total landing cycles. Without routine inspections, such cracks could grow to critical length before being detected. This condition, if not corrected, could result in fatigue cracking of the horizontal stabilizer rear spar upper cap, which could adversely affect the structural integrity of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin MD90-55A018, dated June 29, 2016. The service information describes procedures for repetitive open hole ETHF or surface ETLF inspections for any crack in the left and right side horizontal stabilizer rear spar upper caps common to the elevator hinge fitting at station XE = +/−5.931, and repair or replacement. 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-2016-9433.

    Costs of Compliance

    We estimate that this proposed AD affects 105 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 8 work-hours × $85 per hour = $680 per inspection cycle $0 $680 per inspection cycle $71,400 per inspection cycle.

    We estimate the following costs to do any necessary repairs or replacements 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 actions:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Upper cap splice repair or replacement (each side) 368 work-hours × $85 per hour = $31,280 $64,306 $95,586.
    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-2016-9433; Directorate Identifier 2016-NM-159-AD. (a) Comments Due Date

    We must receive comments by January 19, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model MD-90-30 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

    (e) Unsafe Condition

    This AD was prompted by a report of cracking in a horizontal stabilizer rear spar cap at station XE = +/−5.931. We are issuing this AD to detect and correct fatigue cracking of the horizontal stabilizer rear spar upper cap, which could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Repetitive Open Hole Eddy Current High Frequency or Surface Eddy Current Low Frequency Inspections

    Except as required by paragraph (i) of this AD, at the applicable times specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD90-55A018, dated June 29, 2016: Do either an open hole eddy current high frequency (ETHF) or a surface eddy current low frequency (ETLF) inspection for any crack in the left and right side horizontal stabilizer rear spar upper caps common to the elevator hinge fitting at station XE = +/−5.931, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD90-55A018, dated June 29, 2016, except as required by paragraph (i) of this AD. Repeat the inspection thereafter at the time specified in tables 1 through 4, as applicable, of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD90-55A018, dated June 29, 2016.

    (h) Horizontal Rear Spar Upper Cap Splice Repair or Replacement

    If any crack is found during any inspection required by paragraph (g) of this AD, repair or replace before further flight in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD90-55A018, dated June 29, 2016.

    (i) Service Information Exceptions

    Where Boeing Alert Service Bulletin MD90-55A018, dated June 29, 2016, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles 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 (k)(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, Los Angeles 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 (j)(4)(i) and (j)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or sub-step is labeled “RC Exempt,” then the RC requirement is removed from that step or sub-step. 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.

    (k) Related Information

    (1) For more information about this AD, contact Haytham Alaidy, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; 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 17, 2016. Phil Forde, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28668 Filed 12-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 15 43 CFR Part 30 [178A2100DD/AAKC001030/A0A501010.999900 253G] Probate Regulation Updates AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Tribal consultation; reopening of comment period.

    SUMMARY:

    On June 20, 2016, the Bureau of Indian Affairs announced Tribal consultation on potential updates to probate regulations and announced that it would accept written comments until August 1, 2016. We are reopening the comment period to allow additional time for Tribal and public comment and will accept all comments received before January 4, 2017.

    DATES:

    The comment period announced on June 20, 2016 (81 FR 39874) is reopened. Written comments must be received by January 4, 2017.

    ADDRESSES:

    You may submit comments by one of the following methods:

    Email: [email protected].

    By hard copy: Submit by U.S. mail or hand delivery to: Ms. Elizabeth Appel, Office of Regulatory Affairs and Collaborative Action, U.S. Department of the Interior, 1849 C Street NW., MS-3071-MIB, Washington, DC 20240.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs; telephone (202) 273-4680, [email protected]

    SUPPLEMENTARY INFORMATION:

    As described below, we have identified three areas for modification that will have an immediate impact in streamlining the probate process. We are seeking comments with regard to the following topics, and welcome insight on other aspects of the probate regulatory framework that could be improved.

    Probate Revisions Currently Under Consideration

    1. Increasing the monetary limit for distribution of IIM account funds to pay for funeral services from $1,000 to $5,000.

    The regulation, at 25 CFR 15.301, currently establishes a monetary limit of $1,000 for distribution of Individual Indian Money (IIM) account funds to pay for funeral expenses. There is an ongoing concern that $1,000 is not sufficient to pay for funeral expenses. While individuals may submit funeral related claims to be paid from estate account funds at any time before the conclusion of the first hearing by the Office of Hearings and Appeals (OHA), the Bureau of Indian Affairs (BIA) is aware that family members sometimes suffer financial hardship and lengthy delays as the estate is finalized and claims are approved.

    Revisions under consideration:

    • The BIA is considering a modification to this subpart that would increase the amount of funds available to use for funeral expenses. One proposed modification would amend current regulations by increasing the amount an individual may request from the decedent's IIM to no more than $5,000 for funeral expenses. The account must still contain a minimum balance of $2,500 in order to approve an expense under this section.

    • In the interests of preserving estate account funds for heirs and other claimants, an alternative option would be to likewise raise the maximum payout to $5,000, but with the limitation that the total payments could not exceed 40% of the available account balance.

    2. Allowing BIA to make minor estate inventory corrections.

    The current regulation, at 43 CFR 30.126, requires a judge to issue a modification order if trust or restricted property belonging to a decedent is omitted from the inventory of an estate. As a result, it can take significant time to make minor estate inventory corrections to include omitted property.

    Revision under consideration:

    • The BIA is considering a regulatory modification to grant the BIA the authority to make estate inventory modifications when heirship has already been determined by an OHA order. The BIA would notify all interested parties to an estate in the event property interests were to be added. As in this current regulatory section, any modification that would result in property taking a different line of descent would still require OHA issuing a decision to re-determine heirs. For example, if adding property to a decedent's estate would cause that interest to become 5% or more of the parcel, and thus no longer subject to the American Indian Probate Reform Act's highly fractionated interest provisions, OHA would need to issue a new decision to re-determine descent and distribution of those interests. There would be no change to the requirement that any removal of property from a decedent's inventory would require action by OHA. See 43 CFR 30.127.

    3. Clarifying OHA's authority to order distribution of trust funds.

    The current regulation at 43 CFR 30.254 governs how a judge distributes a decedent's trust or restricted property when the decedent died without a valid will and has no heirs. The rule establishes different distributions based on whether 25 U.S.C. 2206(a) applies, but does not identify trust personalty as a stand-alone category of trust property for distribution (where there are no land interests in the decedent's estate or within the jurisdiction of any tribe).

    Revision under consideration:

    • A modification to this regulation would provide clear authority for OHA to order distribution of trust funds when there are either no land interests in a decedent's estate or no land interests within the jurisdiction of any tribe. Additionally, where the estate contains trust personalty associated with one tribe but interests in trust lands associated with another, OHA would order the trust personalty distributed to the tribe with sufficient nexus to the funds, as determined by the judge, and the land distributed to the tribe with jurisdiction over those interests.

    Dated: November 18, 2016. Lawrence S. Roberts, Principal Deputy Assistant Secretary—Indian Affairs.
    [FR Doc. 2016-28751 Filed 12-2-16; 8:45 am] BILLING CODE 4337-15-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-102952-16] RIN 1545-BN43 Tax Return Preparer Due Diligence Penalty Under Section 6695(g) AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking by cross-reference to temporary regulations.

    SUMMARY:

    In the Rules and Regulations section of this issue of the Federal Register, the IRS is issuing temporary regulations that will modify the existing regulations related to the penalty under section 6695(g) of the Internal Revenue Code (Code) relating to tax return preparer due diligence. The temporary regulations implement recent law changes that expand the tax return preparer due diligence penalty under section 6695(g) so that it applies to the child tax credit (CTC), additional child tax credit (ACTC), and the American Opportunity Tax Credit (AOTC), in addition to the earned income credit (EIC). The text of those regulations also serves as the text of these proposed regulations.

    DATES:

    Written or electronic comments and requests for a public hearing must be received by March 6, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-102952-16), Room 5205, Internal Revenue Service, P.O. 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-102952-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-102952-16).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Rachel L. Gregory, 202-317-6845; concerning submissions of comments and the hearing, Regina Johnson, 202-317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Paperwork Reduction Act

    The collection of information in current § 1.6695-2 was previously reviewed and approved under control number 1545-1570. Control number 1545-1570 was discontinued in 2014, as the burden for the collection of information contained in § 1.6695-2 is reflected in the burden on Form 8867, “Paid Preparer's Due Diligence Checklist,” under control number 1545-1629.

    Background and Explanation of Provisions

    Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend 26 CFR 1.6695-2 by imposing due diligence requirements on tax return preparers with respect to determining the eligibility for, or the amount of, the CTC/ACTC or AOTC, in addition to the EIC, on any return or claim for refund. The temporary regulations also amend section 1.6695-2 to reflect the changes made by section 208(c), Div. B of the Tax Increase Prevention Act of 2014, Public Law 113-295 (128 Stat. 4010, 4073 (2014)), requiring the IRS to index the penalty for inflation for returns and claims for refund filed after December 31, 2014.

    The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the amendments.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required.

    Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6), it is hereby certified that these proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. When an agency issues a notice of proposed rulemaking, the RFA requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA provides an exception to this requirement if the agency certifies that the proposed rulemaking will not have a significant economic impact on a substantial number of small entities.

    The proposed rules affect tax return preparers who determine the eligibility for, or the amount of, the EIC, the CTC/ACTC and/or the AOTC. The North American Industry Classification System (NAICS) code that relates to tax return preparation services (NAICS code 541213) is the appropriate code for tax return preparers subject to this notice of proposed rulemaking. Entities identified as tax return preparation services are considered small under the Small Business Administration size standards (13 CFR 121.201) if their annual revenue is less than $20.5 million. The IRS estimates that approximately 75 to 85 percent of the 505,000 persons who work at firms or are self-employed tax return preparers are operating as or employed by small entities. The IRS has therefore determined that these proposed rules will have an impact on a substantial number of small entities.

    The IRS has further determined, however, that the economic impact on entities affected by the proposed rules will not be significant. The current regulations under section 6695(g) already require tax return preparers to complete the Form 8867 when a return or claim for refund includes a claim of the EIC. Tax return preparers also must currently maintain records of the checklists and EIC computations, as well as a record of how and when the information used to compute the EIC was obtained by the tax return preparer. The information needed to document eligibility for the CTC/ACTC and the AOTC largely duplicates the information needed to compute the EIC and complete other parts of the return or claim for refund. Even if certain preparers are required to maintain the checklists and complete Form 8867 for the first time, the IRS estimates that the total time required should be minimal for these tax return preparers. Further, the IRS does not expect that the requirements in these proposed regulations would necessitate the purchase of additional software or equipment in order to meet the additional information retention requirements.

    Based on these facts, the IRS hereby certifies that the collection of information contained in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities. Accordingly, a Regulatory Flexibility Analysis is not required.

    Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact on small business.

    Comments and Requests for Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are timely submitted to the IRS as prescribed in this preamble under the Addresses heading. The IRS and Treasury Department 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 this regulation is Rachel L. Gregory, Office of the Associate Chief Counsel (Procedure & Administration).

    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 * * *

    Par. 2. Section 1.6695-2 is amended by revising the section heading and paragraphs (a), (b)(1)(i) introductory text, (b)(1)(ii), (b)(2), (b)(3)(i) and (ii), (b)(4)(i)(B) and (C), (c)(3), and (e) to read as follows:
    § 1.6695-2 Tax return preparer due diligence requirements for certain credits.

    (a) [The text of the proposed amendment to § 1.6695-2(a) is the same as the text of § 1.6695-2T(a) published elsewhere in this issue of the Federal Register].

    (b) * * *

    (1) * * *

    (i) [The text of the proposed amendment to § 1.6695-2(b)(1)(i) is the same as the text of § 1.6695-2T(b)(1)(i) published elsewhere in this issue of the Federal Register].

    (ii) [The text of the proposed amendment to § 1.6695-2(b)(1)(ii) is the same as the text of § 1.6695-2T(b)(1)(ii) published elsewhere in this issue of the Federal Register].

    (2) [The text of the proposed amendment to § 1.6695-2(b)(2) is the same as the text of § 1.6695-2T(b)(2) published elsewhere in this issue of the Federal Register].

    (3) * * *

    (i) [The text of the proposed amendment to § 1.6695-2(b)(3)(i) is the same as the text of § 1.6695-2T(b)(3)(i) published elsewhere in this issue of the Federal Register].

    (ii) [The text of the proposed amendment to § 1.6695-2(b)(3)(ii) is the same as the text of § 1.6695-2T(b)(3)(ii) published elsewhere in this issue of the Federal Register].

    (4) * * *

    (i) * * *

    (B) [The text of the proposed amendment to § 1.6695-2(b)(4)(i)(B) is the same as the text of § 1.6695-2T(b)(4)(i)(B) published elsewhere in this issue of the Federal Register].

    (C) [The text of the proposed amendment to § 1.6695-2T(b)(4)(i)(C) is the same as the text of § 1.6695-2T(b)(4)(i)(C) published elsewhere in this issue of the Federal Register].

    (c) * * *

    (3) [The text of the proposed amendment to § 1.6695-2T(c)(3) is the same as the text of § 1.6695-2T(c)(3) published elsewhere in this issue of the Federal Register].

    (e) Applicability date. The rules of this section apply to tax returns and claims for refunds prepared on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register with respect to tax years beginning after December 31, 2015.

    John M. Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-28995 Filed 12-2-16; 8:45 am] BILLING CODE 4830-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 [EPA-R04-OAR-2012-0689; FRL-9955-95-Region 4] Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to disapprove the visibility transport (prong 4) portion of a revision to the Alabama State Implementation Plan (SIP), submitted by the Alabama Department of Environmental Management (ADEM), addressing the Clean Air Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an “infrastructure SIP.” Specifically, EPA is proposing to disapprove the prong 4 portion of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP submission. All other applicable infrastructure requirements for this SIP submission have been addressed in separate rulemakings.

    DATES:

    Comments must be received on or before December 27, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No EPA-R04-OAR-2012-0689 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, 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:

    Sean Lakeman of 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. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), prohibit any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to international and interstate pollution abatement, respectively.

    On March 12, 2008, EPA revised the 8-hour ozone NAAQS to 0.075 parts per million. See 73 FR 16436 (March 27, 2008). States were required to submit infrastructure SIP submissions for the 2008 8-hour ozone NAAQS to EPA no later than March 12, 2011. For the 2008 8-hour ozone NAAQS, this proposed action only addresses the prong 4 element of Alabama's infrastructure SIP submission that EPA received on August 20, 2012. Through this action, EPA is proposing to disapprove the prong 4 portion of Alabama's infrastructure SIP submission for the 2008 8-hour ozone NAAQS. All other applicable infrastructure SIP requirements for this SIP submission have been addressed in separate rulemakings.

    II. What is EPA's approach to the review of infrastructure SIP submissions?

    The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “each such plan” submission must address.

    EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of Title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, Title I, part D.

    Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.1 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

    1 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; Section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of Title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.2 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.3 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

    2See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    3 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.4 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.5

    4See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” 78 FR 4337 (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    5 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submission.

    Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.6

    6 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires attainment plan SIP submissions required by part D to meet the “applicable requirements” of section 110(a)(2); thus, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of Title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

    Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portion of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

    Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.7 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).8 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.9 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

    7 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    8 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    9 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address Section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of Section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

    As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including Greenhouse Gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

    For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

    With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; 10 (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.11 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

    10 Subsequent to issuing the 2013 Guidance, EPA's interpretation of the CAA with respect to the approvability of affirmative defense provisions in SIPs has changed. See “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” 80 FR 33839 (June 12, 2015). As a result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents EPA's view concerning the validity of affirmative defense provisions, in light of the requirements of section 113 and section 304.

    11 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption or affirmative defense for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

    For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

    Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.12 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.13 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.14

    12 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    13 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under section 110(k)(6) of the CAA to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    14See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions).

    III. What are the prong 4 requirements?

    Section 110(a)(2)(D)(i)(II) requires a state's SIP to contain provisions prohibiting sources in that state from emitting pollutants in amounts that interfere with any other state's efforts to protect visibility under part C of the CAA (which includes sections 169A and 169B). The 2013 Guidance states that these prong 4 requirements can be satisfied by approved SIP provisions that EPA has found to adequately address any contribution of that state's sources that impacts the visibility program requirements in other states. The 2013 Guidance also states that EPA interprets this prong to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.

    The 2013 Guidance lays out two ways in which a state's infrastructure SIP may satisfy prong 4. The first way is through an air agency's confirmation in its infrastructure SIP submission that it has an EPA-approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with visibility protection in other air agencies' jurisdiction.

    Alternatively, in the absence of a fully approved regional haze SIP, a state may meet the requirements of prong 4 through a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such an infrastructure SIP submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.

    IV. What is EPA's analysis of how Alabama addressed prong 4?

    Alabama's August 20, 2012, 2008 8-hour ozone infrastructure submission cites to the State's regional haze SIP alone to satisfy prong 4 requirements.15 Alabama's regional haze SIP relies on the Clean Air Interstate Rule (CAIR) 16 as an alternative to the best available retrofit technology (BART) requirements for its CAIR-subject electricity generating units (EGUs).17 Although this reliance on CAIR was consistent with the CAA at the time the State submitted its regional haze SIP, CAIR has since been replaced by the Cross-State Air Pollution Rule (CSAPR) 18 and can no longer be relied upon as an alternative to BART or as part of a long-term strategy (LTS) for addressing regional haze. Therefore, EPA finalized a limited disapproval of Alabama's 2008 regional haze SIP submission to the extent that it relied on CAIR to satisfy the BART and LTS requirements.19 See 77 FR 33642 (June 7, 2012).

    15 As mentioned above, a state may meet the requirements of prong 4 without a fully approved regional haze SIP by showing that its SIP contains adequate provisions to prevent emissions from within the state from interfering with other states' measures to protect visibility. Alabama did not, however, provide a demonstration in the infrastructure SIP submission subject to this proposed action that emissions within its jurisdiction do not interfere with other states' plans to protect visibility.

    16 CAIR created regional cap-and-trade programs to reduce sulfur dioxide (SO2) and nitrogen oxides (NOX) emissions in 28 eastern states, including Alabama, that contributed to downwind nonattainment and maintenance of the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS.

    17 Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress towards the national goal of achieving natural visibility conditions in certain Class I areas. The 156 mandatory Class I federal areas in which visibility has been determined to be an important value are listed at subpart D of 40 CFR part 81. For brevity, these areas are referred to here simply as “Class I areas.”

    Implementation plans must give specific attention to certain stationary sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the state. Under the Regional Haze Rule, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area.

    18 CSAPR addresses the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from electric generating units (EGUs) in 28 states in the eastern United States.

    19 EPA finalized a limited approval of Alabama's regional haze SIP on March 30, 2012. See 77 FR 19098.

    In that limited disapproval action, EPA also amended the Regional Haze Rule to provide that CSAPR can serve as an alternative to BART, i.e., that participation by a state's EGUs in a CSAPR trading program for a given pollutant achieves greater reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas than source-specific BART for those EGUs for that pollutant.20 See 40 CFR 51.308(e)(4); 77 FR 33642. A state can participate in the trading program through either a federal implementation plan (FIP) implementing CSAPR or an integrated CSAPR state trading program implemented through an approved SIP revision. In promulgating this amendment to the Regional Haze Rule, EPA relied on an analytic demonstration of visibility improvement from CSAPR implementation relative to BART based on an air quality modeling study.

    20 Legal challenges from state, industry, and other petitioners to EPA's determination that CSAPR can be an alternative to BART are pending. Utility Air Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).

    At the time of the rule amendment, questions regarding the legality of CSAPR were pending before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) and the court had stayed implementation of the rule. The D.C. Circuit subsequently vacated and remanded CSAPR in August 2012, leaving CAIR in place temporarily.21 However, in April 2014, the Supreme Court reversed the vacatur and remanded to the D.C. Circuit for resolution of the remaining claims.22 The D.C. Circuit then granted EPA's motion to lift the stay and to toll the rule's deadlines by three years.23 Consequently, implementation of CSAPR Phase 1 began in January 2015 and implementation of Phase 2 is scheduled to begin in January 2017.

    21EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012).

    22EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014), reversing 696 F.3d 7 (D.C. Cir. 2012).

    23 Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. issued October 23, 2014).

    Following the Supreme Court remand, the D.C. Circuit conducted further proceedings to address the remaining claims. In July 2015, the court issued a decision denying most of the claims but remanding the Phase 2 sulfur dioxide (SO2) emissions budgets for Alabama, Georgia, South Carolina, and Texas and the Phase 2 ozone-season nitrogen oxides (NOX) budgets for eleven states to EPA for reconsideration.24 Since receipt of the D.C. Circuit's 2015 decision, EPA has engaged the affected states to determine appropriate next steps to address the decision with regard to each state.25 In a November 10, 2016 proposed rulemaking, EPA stated that it expects that potentially material changes to the scope of CSAPR coverage resulting from the remand will be limited to withdrawal of the CSAPR FIP requiring Texas to participate in the Phase 2 trading programs for annual emissions of SO2 and NOX and withdrawal of Florida's CSAPR FIP requirements for ozone-season NOX, which EPA recently finalized in another action.26

    24EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 (D.C. Cir. 2015). The D.C. Circuit did not remand the CSAPR ozone season NOX budgets for Alabama.

    25 As discussed below, Alabama submitted a SIP revision to EPA on October 26, 2015, to incorporate the Phase 2 annual NOX and annual SO2 CSAPR budgets for the State into the SIP. EPA approved this SIP revision in a final action published on August 31, 2016. See 81 FR 59869.

    26 See 81 FR 78954 (November 10, 2016) for further discussion regarding EPA's expectations and the proposed withdrawal of the CSAPR FIP for Texas.

    Due to these expected changes to CSAPR's scope, EPA conducted a sensitivity analysis to the 2012 analytic CSAPR “alternative to BART” demonstration showing that the analysis would have supported the same conclusion if the actions that EPA has proposed to take or has already taken in response to the D.C. Circuit's remand of various CSAPR Phase 2 budgets—specifically, the proposed withdrawal of PM2.5-related CSAPR Phase 2 FIP requirements for Texas EGUs and the recently finalized withdrawal of ozone-related CSAPR Phase 2 FIP requirements for Florida EGUs—were reflected in that analysis. EPA's November 10, 2016 notice of proposed rulemaking seeks comment on this analysis. See 81 FR 78954.

    Alabama sought to convert the 2012 limited approval/limited disapproval of the State's regional haze SIP to a full approval through a SIP revision submitted on October 26, 2015. This SIP revision intended to adopt the CSAPR trading program into the SIP, including the Phase 2 annual NOx and annual SO2 CSAPR budgets for the State, and to use this adoption to replace reliance on CAIR with reliance on CSAPR to satisfy the BART and LTS requirements. Although EPA has approved the CSAPR trading program into the Alabama SIP,27 EPA is currently seeking comment on its proposal that CSAPR continue to be available as an alternative to BART. EPA thus cannot approve the portion of Alabama's 2015 SIP submission seeking to replace reliance on CAIR with reliance on CSAPR to satisfy the BART and LTS requirements at this time. Because Alabama's prong 4 SIP submission relies solely on the State having a fully approved regional haze SIP, EPA is not currently in a position to approve the prong 4 element of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP revision.

    27See 81 FR 59869 (August 31, 2016).

    EPA is therefore proposing to disapprove the prong 4 element of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP submission. Alabama did not submit this infrastructure SIP to meet requirements for Part D or a SIP call; therefore, if EPA takes final action to disapprove the prong 4 portion of this submission, no sanctions will be triggered. However, if EPA finalizes this proposed disapproval, that final action will trigger the requirement under section 110(c) that EPA promulgate a federal implementation plan (FIP) no later than two years from the date of the disapproval unless EPA approves a SIP revision satisfying prong 4 requirements before EPA promulgates such a FIP.

    V. Proposed Action

    As described above, EPA is proposing to disapprove the prong 4 portion of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP submission. All other applicable infrastructure requirements for this SIP submission have been addressed in separate rulemakings.

    VI. 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. EPA is proposing to determine that the prong 4 portion of the aforementioned SIP submission does not meet Federal requirements. Therefore, this proposed action does not impose additional requirements on the state 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).

    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.

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 23, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-28871 Filed 12-2-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 152, 153, 155, 156, 160, 165, 168, 170, and 172 [EPA-HQ-OPP-2016-0227; FRL-9945-77] RIN 2070-AK13 Notification of Submission to the Secretary of Agriculture; Pesticides; Removal of Obsolete Information AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notification of submission to the Secretary of Agriculture.

    SUMMARY:

    This document notifies the public as required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that the EPA Administrator has forwarded to the Secretary of the United States Department of Agriculture (USDA) a draft regulatory document concerning removal of obsolete information. The draft regulatory document is not available to the public until after it has been signed and made available by EPA.

    DATES:

    See Unit I. under SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0227 is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Kathryn Boyle, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-6304; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. What action is EPA taking?

    Section 25(a)(2)(B) of FIFRA requires the EPA Administrator to provide the Secretary of USDA with a copy of any draft final rule at least 30 days before signing it in final form for publication in the Federal Register. The draft final rule is not available to the public until after it has been signed by EPA. If the Secretary of USDA comments in writing regarding the draft final rule within 15 days after receiving it, the EPA Administrator shall include the comments of the Secretary of USDA, if requested by the Secretary of USDA, and the EPA Administrator's response to those comments with the final rule that publishes in the Federal Register. If the Secretary of USDA does not comment in writing within 15 days after receiving the draft final rule, the EPA Administrator may sign the final rule for publication in the Federal Register any time after the 15-day period.

    II. Do any Statutory and Executive Order reviews apply to this notification?

    No. This document is merely a notification of submission to the Secretary of USDA. As such, none of the regulatory assessment requirements apply to this document.

    List of Subjects 40 CFR Part 152

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

    40 CFR Part 153

    Environmental protection, Pesticides and pests, Reporting and recordkeeping requirements.

    40 CFR Part 155

    Environmental protection, Administrative practice and procedure, Confidential business information, Pesticides and pests, Reporting and recordkeeping requirements.

    40 CFR Part 156

    Environmental protection, Labeling, Occupational safety and health, Pesticides and pests, Reporting and recordkeeping requirements.

    40 CFR Part 160

    Environmental protection, Laboratories, Pesticides and pests, Reporting and recordkeeping requirements.

    40 CFR Part 165

    Environmental protection, Packaging and containers, Pesticides and pests.

    40 CFR Part 168

    Environmental protection, Administrative practice and procedure, Advertising, Exports, Labeling, Pesticides and pests, Reporting and recordkeeping requirements.

    40 CFR Part 170

    Environmental protection, Agricultural worker, Employer, Farms, Forests, Greenhouses, Nurseries, Pesticide handler, Pesticides, Worker protection standard.

    40 CFR Part 172

    Environmental protection, Intergovernmental relations, Labeling, Pesticides and pests, Reporting and recordkeeping requirements, Research.

    Dated: November 28, 2016. Richard P. Keigwin, Jr., Director, Office of Pesticide Programs.
    [FR Doc. 2016-29113 Filed 12-2-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 172 and 175 [Docket No. PHMSA-2015-0100 (HM-259)] RIN 2137-AF10 Hazardous Materials: Notification of the Pilot-in-Command and Response to Air Related Petitions for Rulemaking (RRR) AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    In consultation with the Federal Aviation Administration (FAA), PHMSA proposes to amend the Hazardous Materials Regulations (HMR) to align with current international standards for the air transportation of hazardous materials. The proposals in this rule would amend certain special provisions, packaging requirements, notification of pilot-in-command (NOTOC) requirements, and exceptions for passengers and crew members. In addition to harmonization with international standards, several of the proposals in this rule are responsive to petitions for rulemaking submitted by the regulated community. PHMSA invites all interested persons to provide comments regarding these proposed revisions.

    DATES:

    Comments must be received by February 3, 2017.

    ADDRESSES:

    You may submit comments by any of the following methods:

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

    Fax: 1-202-493-2251.

    Mail: Docket Management System; U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

    Hand Delivery: To U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

    Instructions: Include the agency name and Docket Number PHMSA-2015-0100 (HM-259) or RIN 2137-AF10 for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed, stamped postcard.

    Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 [65 FR 19477], or you may visit http://www.regulations.gov.

    Docket: You may view the public docket online at http://www.regulations.gov or in person at the Docket Operations Office at the above address (see ADDRESSES).

    FOR FURTHER INFORMATION CONTACT:

    Aaron Wiener, Office of Hazardous Materials Standards, International Standards, (202) 366-4579, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC 20590-0001.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Overview of Proposals in This NPRM A. Transportation by Air Intermediate Packaging Requirements for Certain Low and Medium Danger Hazardous Materials (P-1637) B. Quantity Limits for Portable Electronic Medical Devices Carried by Passengers, Crewmembers, and Air Operators (P-1649) C. NOTOC Harmonization With the ICAO TI (P-1487) D. Amendments to Package Inspection (P-1671) and Securing Requirements III. Section-by-Section Review IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Paperwork Reduction Act G. Regulation Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environment Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. National Technology Transfer and Advancement Act V. List of Subjects and Regulations Text I. Background

    In consultation with the Federal Aviation Administration (FAA), PHMSA (also “we” or “us”) proposes to amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to more closely align with certain provisions of the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods (ICAO TI). This NPRM also responds to four petitions for rulemaking submitted by the regulated community. The intended effect of these amendments is to update miscellaneous regulatory requirements for hazardous materials offered for transportation, or transported, in commerce by aircraft. The petitions are included in the docket for this proceeding and are discussed at length in Section II (“Overview of Proposals in this NPRM”) of this rulemaking.

    II. Overview of Proposals in This NPRM A. Transportation by Air Intermediate Packaging Requirements for Certain Low and Medium Danger Hazardous Materials (P-1637)

    The Dangerous Goods Advisory Council petitioned PHMSA to remove the additional intermediate packaging requirements found in special provisions A3 and A6, see 49 CFR 172.102(b)(2), by deleting these special provisions and all references to them in the Hazardous Materials Table (HMT) in § 172.101. See P-1637.1 Special provisions A3 and A6 apply to certain commodities as assigned in column (7) of the HMT when transported by aircraft:

    1https://www.regulations.gov/docket?D=PHMSA-2014-0094.

    • Special provision A3 states that if glass inner packagings are used for transportation of referenced commodities, they must be packed with absorbent material in tightly closed metal receptacles before being packed in outer packagings.

    • Special provision A6 states that if plastic inner packagings are used for transportation of referenced commodities, they must be packed in tightly closed metal receptacles before being packed in outer packagings.

    The petitioner notes that the packaging requirements imposed by special provisions A3 and A6 are domestic provisions not found in the ICAO TI and that maintaining these differences creates both a trade barrier to U.S. exports and a burden to the domestic market. The petitioner contends that the requirement for “metal receptacles” is overly restrictive and provides a competitive advantage to shippers in countries that allow these products to be shipped without additional intermediate packagings.

    The petitioner further notes that the following requirements in § 173.27(d) and (e) of the HMR make special provisions A3 and A6 unnecessary: (1) When transported by air, inner packagings of Packing Group (PG) I materials currently assigned A3, A6, or both are already required to be packed in either a rigid and leakproof receptacle or an intermediate packaging containing sufficient absorbent material to absorb the entire contents of the inner packaging before packing the inner packaging in its outer package; and (2) PG II and III commodities are already subject to secondary closure requirements. Therefore, the petitioner asks that the intermediate packaging requirements in special provisions A3 and A6 be removed.

    Section 173.27(d) establishes the type of closure required for transportation of liquid hazardous materials by air. It states that the inner packaging for PG I liquid hazardous materials must have a secondary means of closure applied. The inner packaging for PG II or PG III liquid hazardous materials must have a secondary closure applied unless the secondary closure is impracticable. If the secondary closure is impracticable, the closure requirements for PG II and PG III liquids may be satisfied by securely closing the inner packaging and placing it in a leakproof liner or bag before placing the inner packaging in the outer packaging.

    Section 173.27(e) sets the absorbency requirements for PG I liquid hazardous materials of Classes 3, 4, or 8, or Divisions 5.1 or 6.1, when the materials are packaged in glass, earthenware, plastic, or metal inner packagings and offered or transport by air. It requires that inner packagings be packed in a rigid and leakproof receptacle or intermediate packaging that that is sufficiently absorbent to absorb the entire contents of the inner packaging before the inner package is packed in the outer package.

    After reviewing the petition, PHMSA agrees that current requirements in § 173.27(d) and (e) make special provisions A3 and A6 redundant for liquid PG I materials. We also agree that the requirements in § 173.27(d) for inner packagings to have a secondary means of closure or a leakproof liner or bag adequately address the hazards that special provision A6 was designed to mitigate for PG II and III materials. However, we maintain that the material of construction of the inner packaging referenced in special provision A3 (glass) necessitates an intermediate package to perform a containment function in the event an inner packaging breaks.

    Therefore, we propose to: (1) Amend special provision A3 in § 172.102 to authorize rigid and leakproof receptacles for intermediate packaging; (2) remove references to special provision A3 from assigned PG I entries in the HMT; and (3) remove references to special provision A6 from assigned liquids in the HMT.

    Four solid materials (UN Nos. 1326, 1390, 1889 and 3417) are currently assigned special provisions A6 in the HMT. Unlike the liquids currently assigned special provision A6, these solid materials are not subject to the intermediate or secondary packaging provisions in § 173.27. PHMSA solicits public comment on maintaining special provision A6 for currently assigned solid materials or whether revisions to the packaging provisions for these materials should be considered in a future rulemaking

    B. Quantity Limits for Portable Electronic Medical Devices Carried by Passengers, Crewmembers, and Air Operators (P-1649)

    Phillips Healthcare petitioned PHMSA to revise § 175.10(a)(18)(i) to increase the quantity limits applicable to the transportation of portable medical electronic devices (e.g., automated external defibrillators (AED); nebulizers; continuous positive airway pressure (CPAP) devices containing lithium metal batteries; and spare batteries) carried on aircraft by passengers and crewmembers. See P-1649.2 The current HMR requirements limit all lithium metal batteries carried on an aircraft by passengers or crew for personal use to a lithium content of not more than 2 grams per battery. The ICAO TI allow portable medical electronic devices containing lithium metal batteries and spare batteries for these devices to contain up to 8 grams of lithium content per battery to be carried by passengers with the approval of the operator. The petitioner states:

    2https://www.regulations.gov/docket?D=PHMSA-2015-0107.

    A global increase in air travel, as well as a growing aged population in many countries, makes it reasonable to assume that there will be a significant increase in older passengers and passengers with illness. An automated external defibrillator can make the difference between life and death during cardiac arrest.

    The petitioner further asserts that the current HMR requirements prohibit many people who need to travel with their portable medical electronic devices from doing so because the lithium content exceeds the amount allowed.

    In addition, the petitioner notes that increasing the quantity limits for portable medical electronic devices containing lithium metal batteries and spare batteries would be consistent with section 828 of the “FAA Modernization and Reform Act of 2012” (Pub. L. 112-98, 126 Stat. 133; Feb. 14, 2012),3 which prohibits the Secretary of Transportation from issuing or enforcing any regulation or other requirement regarding the air transportation of lithium cells or batteries if the requirement is more stringent than the requirements of the ICAO TI.

    3See http://www.thefederalregister.org/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.

    PHMSA agrees that harmonizing the HMR with the ICAO TI on the issue portable medical electronic devices with lithium batteries is consistent with the intent of section 828 of the FAA Modernization and Reform Act. Therefore, we propose to amend § 175.10 to align HMR provisions with those in the ICAO TI.

    The petitioner further asks that portable medical electronic devices with increased lithium contents be authorized for transport by passengers or crew members without the approval of the operator. PHMSA points the petitioner to the ICAO TI part 8, table 8-1 provisions with which we are proposing to harmonize and notes that, under the ICAO TI, approval of the operator is required for lithium metal battery powered portable medical electronic devices and their spare batteries exceeding 2 grams of lithium content but not exceeding 8 grams of lithium content. PHMSA is not compelled by the reasoning in the petition to be less restrictive than what international standards currently prescribe. Moreover, we believe that operator approval can be an important safety provision, especially in the context of large lithium metal batteries otherwise forbidden for transportation in carry-on or checked baggage. Accordingly, PHMSA does not propose to eliminate the operator approval provision.

    In this NPRM, we propose to amend § 175.10(a)(18)(i) to authorize passengers and crewmembers to carry on board an aircraft lithium metal battery-powered portable medical electronic devices and two spare batteries for those devices exceeding 2 grams of lithium content per battery, but not exceeding 8 grams of lithium content per battery, with the approval of the operator.

    Consistent with the ICAO TI and the current HMR prohibitions, spare lithium batteries (i.e., batteries that are not packed with or contained in equipment) of any type and for any application continue to be prohibited from checked baggage. FAA's Safety Alert to Operators (SAFO) 15010 Carriage of Spare Lithium Batteries in Carry-on and Checked Baggage provides additional guidance to operators on this issue.

    C. NOTOC Harmonization With the ICAO TI (P-1487)

    The United Parcel Service petitioned PHMSA to revise the notification of the captain/pilot-in-command (NOTOC) requirements to match the ICAO TI. The pilot-in-command must receive the NOTOC in order to appropriately consider the presence, amount and location of hazardous materials onboard the aircraft in an emergency. See P-1487.4 This information, which also includes the hazard classification, proper shipping name, and packing group of the hazmat onboard the aircraft can help to inform the flight crew's decision-making. If an in-flight emergency did occur, the flight crew or the air carrier's ground personnel would need to convey information to air traffic control and/or emergency responders in order to support a safe and effective response.

    4https://www.regulations.gov/docket?D=PHMSA-2006-26159.

    In its petition, the United Parcel Services asks PHMSA to amend the domestic NOTOC requirements in § 175.33 to reduce what it considers extraneous information and more closely align the HMR with existing international practices. The petitioner stated that harmonization with more elements of the ICAO TI's NOTOC requirements will reduce the regulatory burden for operators, as well as the costs associated with training employees and contract personnel to two sets of standards.

    PHMSA proposes adding each of the following requirements to the HMR: (a) The operator must provide to the flight dispatcher the same information as provided on the NOTOC; (b) the information must be provided to pilots and dispatchers prior to an aircraft moving under its own power; (c) the air operator must retain the pilot-in-command's confirmation via signature or other appropriate indication that the required information was received; and (d) the person responsible for loading must provide a signed confirmation or other form of indication that no damaged or leaking packages or packages showing evidence of damage or leakage were loaded on the aircraft. These changes and other general changes discussed below will result in PHMSA harmonizing more closely with the ICAO TI in regards to the information required to be provided in the NOTOC.

    Requirement that the operator provide the same information to the flight dispatcher that is required to be provided to the pilot-in-command. In an emergency, a dispatcher may be more readily able to communicate with air traffic control and emergency responders about the nature and location of hazardous materials onboard an aircraft than the flight crew. Harmonizing with the ICAO TI and requiring dispatchers to have the same information as pilots regarding the nature, amounts, and locations of hazardous materials improves information sharing in an emergency situation. The current ICAO requirement to provide information to the dispatcher was proposed by the U.S. Panel Member on the ICAO Dangerous Goods Panel after consultation with stakeholders.5 Incorporating this provision into the HMR is also relevant to NTSB Safety Recommendation A-11-042, which recommends that the FAA “develop a method to quickly communicate information regarding the number of persons on board and the presence of hazardous materials to emergency responders when airport emergency response or search and rescue is activated.” 6

    5See ICAO Dangerous Goods Panel Working Paper DGP/23-WP/35 (October 2011). In addition to regularly occurring public meetings before ICAO meetings, the FAA and PHMSA held a public meeting specific to NOTOCs in March 2011. For background information, visit: https://www.federalregister.gov/articles/2011/03/01/2011-4237/notification-of-pilot-in-command-notice-of-public-meeting.

    6See http://www.ntsb.gov/safety/safety-recs/recletters/A-11-039-047.pdf.

    For operations subject to the HMR where no dispatcher is required, other personnel with responsibilities for operational control of the aircraft (e.g., the flight operations officer or designated ground personnel responsible for flight operations) would serve as the additional contact. Consistent with the ICAO TI, operators are responsible for addressing in their relevant manuals the job title and specific functions of the person who will receive this information.

    Providing an additional and potentially quicker means for airport rescue and firefighting (ARFF) personnel to receive the NOTOC underscores that the ARFF community is as much an intended consumer of the NOTOC as flight crews. We note that ARFF training in hazardous materials incidents is required under 14 CFR 139, which specifies the FAA's requirements for certificated airports.

    Requirement that the NOTOC be provided to pilots and dispatchers prior to an aircraft moving under its own power. The current HMR require pilots-in-command to receive written information meeting the requirements in § 175.33 as early as practicable before departure of the aircraft. Consistent with the ICAO TI, PHMSA believes that this information should be provided to both the pilot-in-command and dispatchers prior to the aircraft moving under its own power. The flight crew should not be burdened with additional information or processes during taxiing and final preparations for takeoff. This proposed change would also allow the flight crew additional time to address any safety concerns identified after a review of the NOTOC before taxiing. For example, flight crews will be more likely to have the opportunity to physically inspect (e.g., packages, paperwork, etc.), ask questions, or otherwise act on the information in the NOTOC if they so choose.

    Requirement that the air operator obtains and retains a confirmation (e.g., a signed confirmation from the pilot-in-command or notation via an operator's computer system) that the NOTOC was received by the pilot in command. The current HMR require the information to be provided to the pilot-in-command by the operator and for the operator to maintain a record of the NOTOC for 90 days, but there is no requirement for the pilot to indicate receipt of the NOTOC. To be consistent with the ICAO TI, PHMSA is proposing to require the operator to obtain and retain documentation of the pilot-in-command's receipt of the NOTOC.

    Requirement for a signed confirmation or some other indication from the person responsible for loading the aircraft that no evidence of damaged or leaking packages were loaded on the aircraft. The current HMR require a confirmation that no damaged or leaking packages were loaded on board an aircraft, but there is no requirement for a signature or other means of verification from the person responsible for loading the aircraft. Requiring a signed confirmation or other indication from the person responsible for loading results in a more accountable safety system that helps to ensure that there is no evidence of damage to or leakage from the packages or evidence of leakage from the unit load device loaded on an aircraft. Operators are responsible for addressing in their relevant manuals the job title and specific functions of the “responsible loader,” as well as how information should be communicated from other loaders to the responsible loader for each flight prior to this confirmation/indication being provided on the NOTOC.

    General harmonization with the ICAO TI in regards to information required to be provided in the NOTOC associated with (and linked to) requirements for shipping papers. The current HMR require the additional description requirements of §§ 172.202 and 172.203 to be provided in the NOTOC. These additional information requirements necessitate the inclusion of items such as descriptions of the physical or chemical form of radioactive materials, an indication that the materials being transported are packaged under limited quantity exceptions, an indication that marine pollutants are present, etc. By more closely aligning with the ICAO TI, PHMSA believes that the removal of additional description requirements from the NOTOC will result in decreased complexity and training costs for operators without negatively impacting safety. However, we invite comment from the ARFF community pertaining to the effect this proposed rule would have had on past incident or accident responses.

    The current HMR contain a requirement that a notification prepared in accordance with the ICAO TI must also include any additional elements required to be shown on shipping papers by subpart C of part 171 of this subchapter. The additional elements currently required are: An indication of the “EX Number” for Division 1.4G safety devices; an indication of “RQ” and technical names if applicable for hazardous substances; an indication that the hazardous material is a “Waste” for hazardous wastes; and the inclusion of the words “Poison-Inhalation Hazard” or “Toxic-Inhalation Hazard” and the words “Zone A,” “Zone B,” “Zone C,” or “Zone D” for gases, or “Zone A” or “Zone B” for liquids, as appropriate for Division 2.3 materials meeting the definition of a material poisonous by inhalation. PHMSA proposes to remove the requirement for a NOTOC made in accordance with the ICAO TI to include these additional elements. This information would still be required on shipping papers.

    General harmonization between the HMR NOTOC requirements and those found in the ICAO TI will ensure consistency for operators subject to both regulatory systems, thus reducing inconsistencies and the cost of complying with two different sets of standards. However, minor differences between the two regulations will remain even if PHMSA adopts the provisions of this NPRM into a final rule. One noteworthy difference is that the HMR requires that the date of the flight be included on the NOTOC. We believe that maintaining the flight date provides a benefit by adding another safety control to ensure pilots have the correct form and will result in a negligible compliance burden by those required to prepare and maintain a NOTOC under the HMR.

    D. Amendments to Package Inspection (P-1671) and Securing Requirements

    Labelmaster Services petitioned PHMSA to amend § 175.30(c)(1) by removing language prohibiting any package, outside container, or overpack containing hazardous materials from being transported on an aircraft if it has holes. See P-1671.7 The petitioner notes that airlines and freight forwarders have declined to transport packages with minor abrasions, tears, dents, cuts, small holes, or other minor damage from normal conditions of transportation and handling. Even where these examples of minor damage or holes did not compromise the packaging's integrity, airlines and freight forwarders declined to transport them on the basis of § 175.30(c)(1). The petitioner asks that PHMSA add a new paragraph § 173.24(b)(5) to provide transport guidance on packages with minor damage, as the HMR do not presently address this issue.

    7https://www.regulations.gov/docket?D=PHMSA-2015-0281.

    PHMSA agrees that the wording of the current requirement may be construed to prohibit carriage of such items whenever any hole is found in the package, outside container, or overpack. PHMSA believes the current restriction prohibiting acceptance of any of these containment methods with holes to be overly prescriptive, especially as the paramount safety requirement is that there must not be any indication that the integrity of the containment method has been compromised. In this NPRM, consistent with the ICAO TI, PHMSA proposes to amend § 175.30(c)(1) to remove language prohibiting packages, outside containers, or overpacks containing hazardous materials from being transported on an aircraft simply due to the presence of holes when the holes do not compromise the integrity of the containment device. Under the proposed amendment to § 175.30(c)(1), aircraft operators would be authorized to accept packages with small holes that do not compromise the integrity of the containment method during transportation aboard an aircraft. However, we note that operators may continue to have more restrictive standards as a part of their business practice. Moreover, operators are ultimately responsible for their decision to accept such a package for transportation, as the acceptance of the package is tantamount to the operator's determination that the hole will not compromise the integrity of the package.

    The petitioner's request to add a new paragraph in § 173.24 is outside the scope of this rulemaking and may be considered in a future rule.

    Additionally, we propose to amend § 175.88(c) to require hazardous materials loaded in an aircraft be protected from damage, including by the movement of baggage, mail, stores,8 or other cargo and during loading operations, so that accidental damage is not caused through dragging or mishandling.

    8 References to stores in this rule are consistent the ICAO TI's definition under ICAO TI Part 1; 3.1.1.

    Stores (supplies). a) Stores (supplies) for consumption; and b) Stores (supplies) to be taken away.

    Stores (supplies) for consumption. Goods, whether or not sold, intended for consumption by the passengers and the crew on board aircraft, and goods necessary for the operation and maintenance of aircraft, including fuel and lubricants.

    Stores (supplies) to be taken away. Goods for sale to the passengers and the crew of aircraft with a view to being landed.

    III. Section-by-Section Review

    The following is a section-by-section review of the amendments proposed in this NPRM:

    Part 172 Section 172.101

    Section 172.101 contains the Hazardous Materials Table (HMT) and provides instructions for its use. Section 172.101(h) describes column (7) of the HMT, which specifies codes for special provisions applicable to hazardous materials. PHMSA proposes revisions to the column (7) special provisions. Please review all changes for a complete understanding of the amendments and see “Section 172.102 special provisions” for a detailed discussion of the proposed deletions to the special provisions addressed in this NPRM.

    PHMSA specifically proposes to remove: (1) Special provision A3 from all assigned PG I HMT entries in column (7); and (2) special provision A6 from all assigned liquid HMT entries in column (7). Table 1 illustrates the HMT entries for which changes are proposed:

    Table 1 Proper shipping name UN ID No. SP
  • deletion
  • proposed
  • Acetaldehyde UN1089 A3. Acetic acid, glacial or Acetic acid solution, with more than 80 percent acid, by mass UN2789 A6. Acetic acid solution, not less than 50 percent but not more than 80 percent acid, by mass UN2790 A6. Acetic anhydride UN1715 A6. Acetyl chloride UN1717 A6. Alkali metal alloys, liquid, n.o.s UN1421 A3. Alkali metal amalgam, liquid UN1389 A3. Alkali metal dispersions, flammable or Alkaline earth metal dispersions, flammable UN3482 A3. Alkali metal dispersions, or Alkaline earth metal dispersions UN1391 A3. Alkylphenols, liquid, n.o.s. (including C2-C12 homologues) (PG I) UN3145 A6. Allyl iodide UN1723 A6. Amines, liquid, corrosive, flammable, n.o.s. or Polyamines, liquid, corrosive, flammable, n.o.s. (PG I) UN2734 A3, A6. Amines, liquid, corrosive, n.o.s, or Polyamines, liquid, corrosive, n.o.s. (PG I) UN2735 A3, A6. Amyl mercaptan UN1111 A6. Antimony pentafluoride UN1732 A6. Benzyl chloroformate UN1739 A3, A6. Boron trifluoride diethyl etherate UN2604 A3. Butyl mercaptan UN2347 A6. Chlorite solution UN1908 A6. 2-Chloropropene UN2456 A3. Chromium oxychloride UN1758 A3, A6. Chromosulfuric acid UN2240 A3, A6. Corrosive liquid, acidic, inorganic, n.o.s. (PG I) UN3264 A6. Corrosive liquid, acidic, organic, n.o.s. (PG I) UN3265 A6. Corrosive liquid, basic, inorganic, n.o.s. (PG I) UN3266 A6. Corrosive liquid, basic, organic, n.o.s. (PG I) UN3267 A6. Corrosive liquid, self-heating, n.o.s. (PG I) UN3301 A6. Corrosive liquids, flammable, n.o.s. (PG I) UN2920 A6. Corrosive liquids, n.o.s. (PG I) UN1760 A6. Corrosive liquids, oxidizing, n.o.s. UN3093 A6. Corrosive liquids, toxic, n.o.s. (PG I) UN2922 A6. Corrosive liquids, water-reactive, n.o.s. UN3094 A6. Dichloroacetic acid UN1764 A6. Dichloroacetyl chloride UN1765 A6. Difluorophosphoric acid, anhydrous UN1768 A6. Disinfectant, liquid, corrosive, n.o.s. UN1903 A6. Dyes, liquid, corrosive, n.o.s. or Dye intermediates, liquid, corrosive, n.o.s (PG I) UN2801 A6. Ethyl mercaptan UN2363 A6. Ethyldichlorosilane UN1183 A3. Fluoroboric acid UN1775 A6. Fluorophosphoric acid anhydrous UN1776 A6. Fluorosilicic acid UN1778 A6. Fluorosulfonic acid UN1777 A3, A6. Hexafluorophosphoric acid UN1782 A6. Hydrazine, anhydrous UN2029 A3, A6. Hydriodic acid (PG II) UN1787 A6. Hydrobromic acid, with not more than 49 percent hydrobromic acid (PG II) UN1788 A6. Hydrochloric acid (PG II) UN1789 A6. Hydrofluoric acid and Sulfuric acid mixtures UN1786 A6. Hydrofluoric acid, with more than 60 percent strength UN1790 A6. Hydrofluoric acid, with not more than 60 percent strength UN1790 A6. Hydrogen peroxide and peroxyacetic acid mixtures, stabilized with acids, water, and not more than 5 percent peroxyacetic acid UN3149 A6. Hydrogen peroxide, aqueous solutions with not less than 20 percent but not more than 40 percent hydrogen peroxide (stabilized as necessary) UN2014 A6. Lithium aluminum hydride, ethereal UN1411 A3. Mercaptans, liquid, flammable, toxic, n.o.s. or Mercaptan mixtures, liquid, flammable, toxic, n.o.s (PG III) UN1228 A6. Mercaptans, liquid, toxic, flammable, n.o.s. or Mercaptan mixtures, liquid, toxic, flammable, n.o.s., flash point not less than 23 degrees C UN3071 A6. Methyldichlorosilane UN1242 A3. Morpholine UN2054 A6. Nitric acid other than red fuming, with at least 65 percent, but not more than 70 percent nitric acid UN2031 A6. Nitric acid other than red fuming, with more than 20 percent and less than 65 percent nitric acid UN2031 A6. Nitric acid other than red fuming, with not more than 20 percent nitric acid UN2031 A6. Nitric acid other than red fuming, with more than 70 percent nitric acid UN2031 A3. Nitrohydrochloric acid UN1798 A3. Nitrosylsulfuric acid, liquid UN2308 A6. Organotin compounds, liquid, n.o.s. (PG I) UN2788 A3. Oxidizing liquid, corrosive, n.o.s (PG I) UN3098 A6. Oxidizing liquid, n.o.s (PG I) UN3139 A6. Oxidizing liquid, toxic, n.o.s (PG I) UN3099 A6. Perchloric acid with more than 50 percent but not more than 72 percent acid, by mass UN1873 A3. Phosphorus tribromide UN1808 A6. Propanethiols UN2402 A6. Propylene oxide UN1280 A3. 1,2-Propylenediamine UN2258 A6. Propyleneimine, stabilized UN1921 A3. Selenium oxychloride UN2879 A3, A6. Silicon tetrachloride UN1818 A6. Sulfur chlorides UN1828 A3. Sulfuric acid, fuming with less than 30 percent free sulfur trioxide UN1831 A3. Trichloroacetic acid, solution UN2564 A6. Trifluoroacetic acid UN2699 A3, A6. Valeryl chloride UN2502 A6. Vanadium oxytrichloride UN2443 A6. Vanadium tetrachloride UN2444 A3, A6. Vinyl ethyl ether, stabilized UN1302 A3. Xylyl bromide, liquid UN1701 A6.
    Section 172.102 Special Provisions

    Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. PHMSA proposes, to replace the existing requirement for tightly closed metal receptacles in special provision A3 from § 172.102(b)(2), which applies only to transportation by aircraft, with a requirement for rigid and leakproof receptacles or intermediate packaging packed with absorbent material.

    Part 175 Section 175.10

    Section 175.10 provides exceptions for passengers, crewmembers, and air operators. PHMSA proposes to revise § 175.10(a)(18)(i) to authorize passengers and crewmembers to carry on board aircraft portable medical electronic devices containing lithium metal batteries with a lithium content exceeding 2 grams per battery, but not exceeding 8 grams of lithium content per battery, and no more than two individually protected lithium metal spare batteries for these portable medical electronic devices each exceeding 2 grams of lithium content, but not exceeding 8 grams of lithium content, with the approval of the operator. Consistent with the ICAO TI and the current HMR prohibitions, spare lithium batteries (i.e. batteries that are not packed with or contained in equipment) of any type and for any application continue to be prohibited from checked baggage. FAA's Safety Alert to Operators (SAFO) 15010 Carriage of Spare Lithium Batteries in Carry-on and Checked Baggage provides additional guidance to operators on this issue.

    Section 175.30

    Section 175.30 prescribes requirements for the inspection and acceptance of hazardous materials. PHMSA proposes revising § 175.30(c)(1) to no longer prohibit packages, outside containers, overpacks, or ULDs containing hazardous materials from being transported on an aircraft if there are one or more holes present when the hole(s) or other indications do not indicate compromised integrity to the package, overpack, freight container, or ULD. This change will harmonize the HMR with language in ICAO TI part 7; 1.3.1(i), which states “the package, overpack, freight container or unit load device is not leaking and there is no indication that its integrity has been compromised.”

    Section 175.33

    Section 175.33 establishes requirements for shipping papers and for the notification of the pilot-in-command (NOTOC) when hazardous materials are transported by aircraft. PHMSA proposes to harmonize the HMR NOTOC requirements with those found in the ICAO TI. Specifically, we propose to more closely align the information that is required to be provided in the NOTOC; ensure the NOTOC is provided to dispatchers or when dispatchers are not utilized, other ground support personnel designated in the operator's manual assigned to the flight; harmonize with ICAO requirements addressing when the NOTOC must be provided to the pilots and dispatchers; require confirmation via signature or other appropriate indication by the pilot-in-command (PIC) to indicate that the required information was received; and require confirmation via signature or other appropriate indication by the person responsible for loading the aircraft that no damaged or leaking packages or packages showing evidence of damage or leakage have been loaded on the aircraft.

    Finally, and consistent with the ICAO TI, we propose to amend § 175.33 by removing the requirement to include additional informational requirements in § 175.33(a)(1)(i) and (ii). This information will continue to be required on shipping papers.

    Section 175.88

    Section 175.88 prescribes requirements for inspection, orientation, and securing packages of hazardous materials aboard aircraft. PHMSA proposes revisions to § 175.88(c) to require hazardous materials loaded in an aircraft to be protected from damage, including by the movement of baggage, mail, stores, or other cargo, consistent with general loading requirements found in the ICAO TI. This proposed change would require that packages be protected from damage during loading operations through dragging or mishandling of packages containing hazardous materials and further harmonize specific portions of the general loading/securement requirements pertaining to appropriate securing and loading practices of the HMR with those found in the ICAO TI.

    IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking

    This proposed rule is published under the statutory authority of the Federal hazardous materials transportation law (Federal hazmat law). 49 U.S.C. 5101 et seq. Section 5103(b) of the Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. Section 5120(b) of the Federal hazmat law authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. The Secretary has delegated these authorizations to the Administrator for PHMSA. See 49 CFR 1.97.

    This rule proposes to amend regulations to increase alignment with international standards by incorporating various amendments, including changes to special provisions, packaging requirements, air transport notification of pilot-in-command (NOTOC) requirements, and allowances for hazardous materials to be carried on board an aircraft by passengers and crewmembers. To this end, this rule proposes to more fully align the HMR with the ICAO TI. The large volume of hazardous materials transported in international commerce warrants the harmonization of domestic and international requirements to the greatest extent possible.

    Harmonization serves to facilitate international commerce, while also promoting the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and operators were required to comply with two or more conflicting sets of regulatory requirements. PHMSA's goal is to harmonize without sacrificing the current HMR level of safety or imposing undue burdens on the regulated community. Additionally, we consulted the Federal Aviation Administration in the development of this rule.

    B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

    This proposed rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), and, therefore, was not reviewed by the Office of Management and Budget. This proposed rule is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation. 44 FR 11034 (Feb. 26, 1979).

    Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), supplements and reaffirms Executive Order 12866, stressing that, to the extent permitted by law, an agency rulemaking action must be based on benefits that justify its costs, impose the least burden, consider cumulative burdens, maximize benefits, use performance objectives, and assess available alternatives.

    Benefits of Harmonization

    Pursuant to Executive Order 13563, PHMSA analyzed the expected benefits of these proposed provisions. Typically the benefits of rules are derived from (1) enhanced health and safety factors and (2) reduced expenditures, such as private-sector savings, government administrative savings, gains in work time, harmonization impacts, and costs of compliance. In the case of this NPRM, most of the benefits from the rule will be derived from health and safety factors, and reduced compliance costs.

    The quantifying health and safety benefits specifically attributable to modifications of the NOTOC requirements are not easily calculable with any degree of accuracy. The pilot signature and stronger confirmation requirements from the person responsible for loading the aircraft will result in more effective and efficient response in the event of an aviation incident. The proposed requirement that packages be protected from damage during loading operations will result in increased safety and environmental protection. Benefits would also be realized through a more efficient response time as a result of emergency response personnel having quicker access to hazardous materials information for each flight.

    The primary reduced expenditures benefits expected from this NPRM result from reduced packaging costs in relation to the removal of special provision A3 from all assigned PG I HMT entries and special provision A6 from all assigned liquid HMT entries, as well as cost savings from general harmonization of NOTOC requirements.

    Currently, compliance with special provisions A3 and A6 requires domestic shippers to use extra 9 or more expensive 10 materials. Shippers also incur higher freight charges for shipping packages with higher package weights.11 PHMSA estimates that the partial removal of A3 and complete removal of A6 for liquids, as well as that of the associated intermediate packaging requirements, from the HMR will provide an undiscounted annual benefit of $1,814,643 in reduced packaging costs to shippers.

    9 A metal container enclosing either a plastic or glass container.

    10 A metal or glass container rather than a plastic container.

    11 Having a metal container enclosing a plastic/glass container will add weight. Likewise using a metal or glass container rather than a plastic container will add weight.

    To arrive at this benefit, PHMSA (1) analyzed commodity flow survey data for commodities assigned A3, A6, or both in the HMR, (2) determined an estimate of total tons of freight for affected commodities offered for transportation by aircraft annually, (3) used this general commodity flow survey data to estimate the number of impacted packages, and (4) determined a cost basis for packages prepared under existing requirements versus proposed requirements.

    The reduced expenditure cost savings associated with general harmonization are not easily calculable with any degree of accuracy. Inconsistent hazardous materials regulations result in additional compliance costs for industry and increase compliance training efforts, whereas consistency of regulations reduces regulatory compliance costs and helps to avoid rejected or frustrated shipments. PHMSA expects the increased harmonization of the HMR and ICAO TI NOTOC provisions to generate cost savings by streamlining the processes for NOTOC generation.

    Costs of Harmonization

    The primary costs associated with this NPRM are time costs related to proposed requirements for (1) confirmation via signature or other appropriate indication by the person responsible for loading the aircraft that no damaged or leaking packages were loaded on the aircraft, and (2) confirmation via signature or other appropriate indication by the pilot-in-command to indicate that the required information was received. PHMSA estimates the annual costs associated with harmonizing the HMR NOTOC requirements with those found in the ICAO TI to be $705,590. PHMSA notes that many air operators already comply with the ICAO TI NOTOC requirements; therefore, the estimated cost of harmonizing likely is overestimated in this analysis. The HMR currently requires confirmation that no damaged or leaking packages have been loaded on the aircraft. In satisfying this current requirement, it is assumed that many operators are already using the proposed specific confirmation requirement (signature or other indication) from the person responsible loading the aircraft and are already be accounted for in time costs. Under current practice, the NOTOC is transmitted to the pilot-in-command. We assume the additional provision of identical NOTOC information to the dispatcher (or other personnel) will incur negligible costs, if any, especially as we understand this to be a common industry practice. PHMSA invites comments on this assumption and on any unanticipated costs associated with this proposed requirement.

    PHMSA expects the adoption of the proposal to eliminate the intermediate packaging requirements provided in special provision A6 for liquids (and A3 for PG I materials) to yield a modest increase in safety costs due to increased transport volumes that may result from the reduced packaging costs. Based on an estimated 10 percent increase in transport volumes of commodities currently assigned special provisions A3 and A6, PHMSA estimates the annual increased safety cost attributable to the removal of these special provisions as proposed in this NPRM is $2,051.

    Net Benefit

    Based on the previous discussions of benefits and costs, PHMSA estimates the net benefit associated with this NPRM (2137-AF10) to be $1,107,002.

    C. Executive Order 13132

    This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999). This proposed rule may preempt State, local, and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision, 49 U.S.C. 5125(b), that preempts State, local, and Indian tribe requirements on certain covered subjects, as follows:

    (1) The designation, description, and classification of hazardous material;

    (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

    (3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;

    (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and

    (5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

    This proposed rule addresses covered subject items (2), (3), and (5) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This proposed rule is necessary to harmonize with international standards. If the proposed changes are not adopted into the HMR, U.S. companies—including numerous small entities competing in foreign markets—would be at an economic disadvantage because of their need to comply with a dual system of regulations. The changes in this proposed rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA proposes the effective date of Federal preemption be 90 days from publication of a final rule in this matter.

    D. Executive Order 13175

    This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 FR 67249 (Nov. 9, 2000). Because this proposed rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

    E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures

    This proposed rule was developed in accordance with Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), and DOT's Policies and Procedures to promote compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and ensure that potential impacts of draft rules on small entities are properly considered. The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities, unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities.

    This proposed rule facilitates the transportation of hazardous materials in international commerce by increasing consistency with international standards. It applies to offerors and carriers of hazardous materials, some of whom are small entities, such as chemical manufacturers, users and suppliers, packaging manufacturers, distributors, aircraft operators, and training companies. As previously discussed in Section IV, Subsection B (“Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures”), PHMSA expects that the majority of amendments in this proposed rule will result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America. Many companies will realize economic benefits as a result of these amendments. Additionally, the changes effected by this NPRM will relieve U.S. companies, including small entities competing in foreign markets, from the burden of complying with a dual system of regulations. However, PHMSA requests comment on the economic impacts of the proposed rule on a small entities.

    F. Paperwork Reduction Act

    PHMSA currently has approved information collection under Office of Management and Budget (OMB) Control Number 2137-0034, “Hazardous Materials Shipping Papers and Emergency Response Information.” We anticipate that this proposed rule will result in an increase in the annual burden of this information collection because of an increase in the amount of time needed to complete the NOTOC due to additional requirements for (1) confirmation via signature or other appropriate indication by the person responsible for loading the aircraft that no damaged or leaking packages were loaded on the aircraft, and (2) confirmation via signature or other appropriate indication by the pilot-in-command that the required information was received.

    This rulemaking identifies a revised information collection that PHMSA will submit to OMB for approval based on the requirements in this NPRM. PHMSA has developed burden estimates to reflect changes in this NPRM and estimates that the information collection and recordkeeping burden in this rule are as follows:

    OMB Control Number: 2137-0034.

    Annual Increase in Number of Respondents: 150.

    Annual Increase in Annual Number of Responses: 1,976,475.

    Annual Increase in Annual Burden Hours: 5,474.

    Annual Increase in Annual Burden Costs: $483,083.

    Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Section 1320.8(d) of 5 CFR requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information and recordkeeping requests. PHMSA specifically invites comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these proposed requirements. Address written comments to the Dockets Unit as identified in the ADDRESSES section of this rulemaking. We must receive comments regarding information collection burdens prior to the close of the comment period as identified in the DATES section of this rulemaking. In addition, you may submit comments specifically related to the information collection burden to PHMSA Desk Officer, Office of Management and Budget, at fax number 202-395-6974. Requests for a copy of this information collection should be directed to Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH-10), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. If these proposed requirements are adopted in a final rule, PHMSA will submit the revised information collection and recordkeeping requirements to OMB for approval.

    G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

    H. Unfunded Mandates Reform Act

    This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more, adjusted for inflation, to either State, local, or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule.

    I. Environmental Assessment

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375, requires that Federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations that implement NEPA, 40 CFR parts 1500-1508, require Federal agencies to conduct an environmental review considering (1) the need for the proposed action, (2) alternatives to the proposed action, (3) probable environmental impacts of the both the proposed action and the alternatives, and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

    1. Purpose and Need

    In this NPRM, PHMSA proposes to amend the HMR in to increase harmonization with international standards and to address four petitions for rulemaking submitted by shippers, carriers, manufacturers, and industry representatives. These proposed revisions are intended to harmonize with international standards, while also maintaining or enhancing safety. Specifically, PHMSA, consistent with P-1487, proposes to harmonize the HMR with the 2015-2016 ICAO TI requirements for the NOTOC, the ICAO TI requirement for the air operator to provide a copy of the NOTOC to the flight dispatcher, and the ICAO TI requirement for the air operator to obtain and retain a confirmation that the NOTOC was received and agreed to by the pilot. This NPRM addresses three additional petitions for rulemaking (P-1637, P-1649, and P-1671), proposing to: (1) More closely harmonize with the ICAO TI in regard to intermediate packaging requirements for certain low and medium danger hazardous materials; (2) add an exception to allow passengers to bring on board an aircraft portable medical electronic devices containing lithium batteries that exceed the lithium battery limits in § 175.10(a)(18)(i), as well as spare batteries for these devices with the approval of the operator; and (3) remove language prohibiting any package, outside container, or overpack containing hazardous materials from being transported on an aircraft if it has holes when there is no indication that the integrity of the containment method has been compromised. All of these proposals more closely harmonize U.S. regulations with international standards.

    This action is necessary to: (1) Fulfill our statutory directive to promote transportation safety; (2) fulfill our statutory directive under the Administrative Procedure Act (APA) that requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a rule, 5 U.S.C. 553(e); (3) align the HMR with international transport standards and requirements to the extent practicable in accordance with Federal hazmat law, see 49 U.S.C. 5120; and (4) simplify and clarify the regulations in order to promote understanding and compliance. Specifically, this rulemaking achieves these goals by responding to petitions (P-1487, P-1637, P-1649, and P-1671).

    With this action, we intend to more closely align the HMR with international transport standards and requirements, without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated public.

    2. Alternatives

    In proposing this rulemaking, PHMSA is considering the following alternatives:

    No Action Alternative:

    If PHMSA were to choose this alternative, we would not proceed with any rulemaking on this subject and the current regulatory standards would remain in effect.

    Preferred Alternative:

    This alternative is the current proposal as it appears in this NPRM, applying to transport of hazardous materials by air. The proposed amendments included in this alternative are more fully addressed in the preamble and regulatory text sections of this NPRM. However, they generally include the following:

    (1) More closely harmonize the HMR and ICAO TI notification requirements. In this NPRM, PHMSA proposes to more closely align NOTOC requirements between the HMR and the ICAO TI. This includes information required in the notification, when the NOTOC must be provided to pilots and dispatchers, and requirements for verifying that the information was received by the pilot-in-command.

    (2) More closely harmonize with ICAO TI in regard to intermediate packaging requirements for certain low and medium danger hazardous materials. In this NPRM, PHMSA proposes to remove all references to special provision A6 assigned to liquids in the Hazardous Materials Table. Additionally, this NPRM proposes to amend special provision A3 to authorize additional intermediate packagings.

    (3) Add an exception to allow passengers, with the approval of the operator, to bring on board an aircraft a portable medical electronic device that exceeds the lithium battery limits in § 175.10(a)(18)(i). In this NPRM, PHMSA proposes to amend § 175.10(a)(18)(i) to increase the quantity limits applicable to the transportation of portable medical electronic devices containing lithium metal batteries and spare batteries for these devices carried on an aircraft. The current HMR limit all lithium metal batteries to a lithium content of not more than 2 grams per battery regardless of end use, whereas the ICAO TI allow portable medical electronic devices containing lithium metal batteries to contain up to 8 grams of lithium (as well as spare batteries for these devices) to be carried on board an aircraft.

    (4) Amend the Package Inspection and Securing Requirements. In this NPRM, PHMSA proposes to amend § 175.30(c)(1) to remove language prohibiting any package, outside container, or overpack containing hazardous materials from being transported on an aircraft if it has holes. Additionally, PHMSA proposes revisions to § 175.88(c) to require hazardous materials loaded in an aircraft to be protected from damage, including by the movement of baggage, mail, stores, or other cargo, consistent with general loading requirements found in the ICAO TI.

    3. Probable Environmental Impacts of the Alternatives

    No Action Alternative:

    If PHMSA were to choose the No Action Alternative, we would not proceed with any rulemaking on this subject and the current regulatory standards would remain in effect. However, efficiencies gained through harmonization in updates to transport standards would not be realized. Foregone efficiencies in the No Action Alternative include freeing up limited resources to concentrate on air transport hazard communication (hazcom) issues of potentially much greater environmental impact.

    Additionally, the Preferred Alternative encompasses enhanced and clarified regulatory requirements, which would result in increased compliance and less environmental and safety incidents. Not adopting the proposed environmental and safety requirements in the NPRM under the No Action Alternative would result in a lost opportunity for reducing environmental and safety-related incidents.

    Greenhouse gas emissions would remain the same under the No Action Alternative.

    Preferred Alternative:

    If PHMSA selects the provisions as proposed in this NPRM, we believe that safety and environmental risks would be reduced and that protections to human health and environmental resources would be increased. Consistency between U.S. and international notification requirements can enhance the safety and environmental protection of hazardous materials transportation, reduce compliance costs, increase the flow of hazardous materials from their points of origin to their points of destination (or diversion airport when required), and improve the emergency response in the event of a hazardous materials incident or accident.

    Overall, harmonization will result in more targeted and effective training and thereby enhanced environmental protection. These proposed amendments will reduce inconsistent hazardous materials regulations, which can increase the time and cost of compliance training. For ease of compliance with appropriate regulations, air carriers engaged in the transportation of hazardous materials generally elect to accept and transport hazardous materials in accordance with the ICAO TI, as appropriate. Increasing consistency between these international regulations and the HMR allows shippers and carriers to more efficiently train hazmat employees in their responsible functions. PHMSA believes that these proposed amendments, which will increase standardization and consistency of regulations, will result in greater protection of human health and the environment:

    (1) More closely harmonize the HMR and ICAO TI notification requirements. Harmonizing the HMR and ICAO TI notification requirements will (1) allow air carriers to streamline compliance and training programs, (2) result in emergency response personnel having quicker access to hazmat information for each flight, (3) remove the requirement to supply data elements required under shipping paper provisions, and (4) provide dispatchers access to hazmat information and relieve the flight crew of the responsibility of communicating this information to Air Traffic Control (ATC) and Aircraft Rescue and Firefighting (ARFF) personnel.

    Greenhouse gas emissions would remain the same under this proposed amendment.

    (2) More closely harmonize with the ICAO TI in regard to intermediate packaging requirements for certain low and medium danger hazardous materials. Deleting the assignment of special provisions A3 (partial) and A6 (for liquids) more closely harmonizes the HMR with the packing instructions of the ICAO TI and removes a requirement that, according to the petitioner, is a barrier to trade for U.S. exports, while still maintaining an appropriate level of safety. Existing requirements in § 173.27(d) and (e) for inner packagings to have a secondary means of closure and to be placed in either a rigid and leakproof receptacle or an intermediate packaging with absorbent material make special provisions A3 and A6 redundant for PG I commodities. Additionally, the requirements in § 173.27(d) for inner packagings to have a secondary means of closure or a leakproof liner or bag adequately address the hazards that special provision A6 was designed to mitigate for PG II and III liquid materials.

    Greenhouse gas emissions would remain the same under this proposed amendment.

    (3) Add an exception to allow passengers, with the approval of the operator, to bring on board an aircraft a portable medical electronic device that exceeds the lithium battery limits in § 175.10(a)(18)(i). Harmonizing with the ICAO TI in this area would assist the traveling public who rely on their portable medical electronic devices. This revision will be consistent with the FAA Modernization and Reform Act. PHMSA has found no data on increased incidents in countries allowing the ICAO TI lithium battery limits for portable electronic medical devices.

    Greenhouse gas emissions would remain the same under this proposed amendment.

    (4) Amend the Package Inspection and Securing Requirements. Harmonizing with the ICAO TI in this area will address the overly prescriptive requirements for package inspection and securing, which currently result in acceptance rejections from airlines and freight forwarders. Further, harmonization will result in more targeted and effective training and thereby enhanced environmental protection. These proposed amendments will reduce inconsistent hazardous materials regulations, which hamper compliance training efforts.

    Greenhouse gas emissions would remain the same under this proposed amendment.

    4. Agencies Consulted

    PHMSA has coordinated with the U.S. Federal Aviation Administration in the development of this proposed rule. PHMSA will consider the views expressed in comments to the NPRM submitted by members of the public, State and local governments, and industry.

    5. Conclusion

    The provisions of this proposed rule build on current regulatory requirements to enhance the transportation safety and security of shipments of hazardous materials transported by aircraft, thereby reducing the risks of an accidental or intentional release of hazardous materials and consequent environmental damage. PHMSA believes the net environmental impact will be positive and that there are no significant environmental impacts associated with this proposed rule.

    PHMSA welcomes any views, data, or information related to environmental impacts that may result if the proposed requirements are adopted, as well as possible alternatives and their environmental impacts.

    J. Privacy Act

    Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register, 65 FR 19477 (April 11, 2000) or you may visit http://www.dot.gov/privacy.html.

    K. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, “Promoting International Regulatory Cooperation,” 77 FR 26413 (May 4, 2012), agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

    Similarly, the Trade Agreements Act of 1979, Public Law 96-39, as amended by the Uruguay Round Agreements Act, Public Law 103-465, prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

    PHMSA and the FAA participate in the establishment of international standards to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not cause unnecessary obstacles to foreign trade. In fact, the proposed rule is designed to facilitate international trade by eliminating differences between the domestic and international air transportation requirements. Accordingly, this rulemaking is consistent with Executive Order 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.

    L. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995, 15 U.S.C. 272 note, directs Federal agencies to use voluntary consensus standards in their regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specification of materials, test methods, or performance requirements) that are developed or adopted by voluntary consensus standard bodies. This proposed rule does not involve voluntary consensus standards.

    List of Subjects 49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.

    49 CFR Part 175

    Air carriers, Hazardous materials transportation, Reporting and recordkeeping requirements.

    In consideration of the foregoing, PHMSA proposes to amend 49 CFR chapter I as follows:

    Regulations Text PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING REQUIREMENTS, AND SECURITY PLANS 1. The authority citation for part 172 continues to read as follows: Authority:

    49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.

    2. In § 172.101, the Hazardous Materials Table is amended by revising the following entries in the appropriate alphabetical sequence:
    § 172.101 Purpose and use of the hazardous materials table. Symbols Hazardous
  • materials
  • descriptions and
  • proper shipping names
  • Hazard
  • class or
  • division
  • Identification
  • No.
  • PG Label
  • codes
  • Special
  • provisions
  • (§ 172.102)
  • (8) Packaging
  • (§ 173.***)
  • Exceptions Non-bulk Bulk (9) Quantity limitations
  • (see §§ 173.27 and 175.75)
  • Passenger
  • aircraft/rail
  • Cargo air-
  • craft only
  • (10) Vessel stowage Location Other
    (1) (2) (3) (4) (5) (6) (7) (8A) (8B) (8C) (9A) (9B) (10A) (10B) *         *         *         *         *         *         * Acetaldehyde 3 UN1089 I 3 B16, T11, TP2, TP7 None 201 243 Forbidden 30 L E *         *         *         *         *         *         * Acetic acid, glacial or Acetic acid solution, with more than 80 percent acid, by mass 8 UN2789 II 8, 3 A3, A7, A10, B2, IB2, T7, TP2 154 202 243 1 L 30 L A Acetic acid solution, not less than 50 percent but not more than 80 percent acid, by mass 8 UN2790 II 8 148, A3, A7, A10, B2, IB2, T7, TP2 154 202 242 1 L 30 L A *         *         *         *         *         *         * Acetic anhydride 8 UN1715 II 8, 3 A3, A7, A10, B2, IB2, T7, TP2 154 202 243 1 L 30 L A 40. *         *         *         *         *         *         * Acetyl chloride 3 UN1717 II 3, 8 A3, A7, IB1, N34, T8, TP2 150 202 243 1 L 5 L B 40. *         *         *         *         *         *         * Alkali metal alloys, liquid, n.o.s 4.3 UN1421 I 4.3 A2, A7, B48, N34 None 201 244 Forbidden 1 L D 13, 52, 148. Alkali metal amalgam, liquid 4.3 UN1389 I 4.3 A2, A7, N34 None 201 244 Forbidden 1 L D 13, 40, 52, 148. *         *         *         *         *         *         * Alkali metal dispersions, flammable or Alkaline earth metal dispersions, flammable 4.3 UN3482 I 4.3, 3 A2, A7 None 201 244 Forbidden 1 L D 13, 52, 148. Alkali metal dispersions, or Alkaline earth metal dispersions 4.3 UN1391 I 4.3 A2, A7 None 201 244 Forbidden 1 L D 13, 52, 148. *         *         *         *         *         *         * Alkylphenols, liquid, n.o.s. (including C2-C12 homologues) 8 UN3145 I 8 T14, TP2 None 201 243 0.5 L 2.5 L B II 8 IB2, T11, TP2, TP27 154 202 242 1 L 30 L B III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A *         *         *         *         *         *         * Allyl iodide 3 UN1723 II 3, 8 A3, IB1, N34, T7, TP2, TP13 150 202 243 1 L 5 L B 40. *         *         *         *         *         *         * G Amine, liquid, corrosive, flammable, n.o.s. or Polyamines, liquid, corrosive, flammable, n.o.s 8 UN2734 I 8, 3 N34, T14, TP2, TP27 None 201 243 0.5 L 2.5 L A 52. II 8, 3 IB2, T11, TP2, TP27 None 202 243 1 L 30 L A 52. G Amines, liquid, corrosive, n.o.s.,or Polyamines, liquid, corrosive, n.o.s 8 UN2735 I 8 B10, N34, T14, TP2, TP27 None 201 243 0.5 L 2.5 L A 52. II 8 B2, IB2, T11, TP1, TP27 154 202 242 1 L 30 L A 52. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 52. *         *         *         *         *         *         * Amyl mercaptan 3 UN1111 II 3 A3, IB2, T4, TP1 None 202 242 5 L 60 L B 95, 102. *         *         *         *         *         *         * Antimony pentafluoride 8 UN1732 II 8, 6.1 A3, A7, A10, IB2, N3, N36, T7, TP2 None 202 243 Forbidden 30 L D 40, 44, 89, 100, 141. *         *         *         *         *         *         * Benzyl chloroformatef 8 UN1739 I 8 B4, N41, T10, TP2, TP13 None 201 243 Forbidden 2.5 L D 40. *         *         *         *         *         *         * Boron trifluoride diethyl etherate 8 UN2604 I 8, 3 A19, T10, TP2 None 201 243 0.5 L 2.5 L D 40. *         *         *         *         *         *         * Butyl mercaptan 3 UN2347 II 3 A3, IB2, T4, TP1 150 202 242 5 L 60 L D 52, 95, 102. *         *         *         *         *         *         * Chlorite solution 8 UN1908 II 8 A3, A7, B2, IB2, N34, T7, TP2, TP24 154 202 242 1 L 30 L B 26, 44, 89, 100, 141. III 8 A3, A7, B2, IB3, N34, T4, TP2, TP24 154 203 241 5 L 60 L B 26, 44, 89, 100, 141. *         *         *         *         *         *         * 2-Chloropropene 3 UN2456 I 3 N36, T11, TP2 150 201 243 1 L 30 L E *         *         *         *         *         *         * Chromium oxychloride 8 UN1758 I 8 A7, B10, N34, T10, TP2 None 201 243 0.5 L 2.5 L C 40, 66, 74, 89, 90. *         *         *         *         *         *         * Chromosulfuric acid 8 UN2240 I 8 A7, B4, B6, N34, T10, TP2, TP13 None 201 243 0.5L 2.5L B 40, 66, 74, 89, 90. *         *         *         *         *         *         * G Corrosive liquid, acidic, inorganic, n.o.s 8 UN3264 I 8 B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L B 40. II 8 386, B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L B 40. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 40. G Corrosive liquid, acidic, organic, n.o.s 8 UN3265 I 8 B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L B 40. II 8 148,B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L B 40. III 8 386, IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 40. G Corrosive liquid, basic, inorganic, n.o.s 8 UN3266 I 8 T14, TP2, TP27 None 201 243 0.5 L 2.5 L B 40, 52. II 8 386, B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L B 40, 52. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 40, 52. G Corrosive liquid, basic, organic, n.o.s 8 UN3267 I 8 B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L B 40, 52. II 8 B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L B 40, 52. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 40, 52. G Corrosive liquid, self-heating, n.o.s 8 UN3301 I 8, 4.2 B10 None 201 243 0.5 L 2.5 L D II 8, 4.2 B2, IB1 154 202 242 1 L 30 L D G Corrosive liquids, flammable, n.o.s 8 UN2920 I 8, 3 B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L C 25, 40. II 8, 3 B2, IB2, T11, TP2, TP27 154 202 243 1 L 30 L C 25, 40. G Corrosive liquids, n.o.s 8 UN1760 I 8 A7, B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L B 40. II 8 B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L B 40. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 40. G Corrosive liquids, oxidizing, n.o.s 8 UN3093 I 8, 5.1 A7 None 201 243 Forbidden 2.5 L C 89. II 8, 5.1 A7, IB2 None 202 243 1 L 30 L C 89. G Corrosive liquids, toxic, n.o.s 8 UN2922 I 8, 6.1 A7, B10, T14, TP2, TP13, TP27 None 201 243 0.5 L 2.5 L B 40. II 8, 6.1 B3, IB2, T7, TP2 154 202 243 1 L 30 L B 40. III 8, 6.1 IB3, T7, TP1, TP28 154 203 241 5 L 60 L B 40 G Corrosive liquids, water-reactive, n.o.s 8 UN3094 I 8, 4.3 A7 None 201 243 Forbidden 1 L E 13, 148. II 8, 4.3 A7 None 202 243 1 L 5 L E 13, 148. *         *         *         *         *         *         * Dichloroacetic acid 8 UN1764 II 8 A3, A7, B2, IB2, N34, T8, TP2 154 202 242 1 L 30 L A *         *         *         *         *         *         * Dichloroacetyl chloride 8 UN1765 II 8 A3, A7, B2, B6, IB2, N34, T7, TP2 154 202 242 1 L 30 L D 40. *         *         *         *         *         *         * Difluorophosphoric acid, anhydrous 8 UN1768 II 8 A7, B2, IB2, N5, N34, T8, TP2 None 202 242 1 L 30 L A 40. *         *         *         *         *         *         * G Disinfectant, liquid, corrosive, n.o.s 8 UN1903 I 8 A7, B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L B *         *         *         *         *         *         * G Dyes, liquid, corrosive, n.o.s. or Dye intermediates, liquid, corrosive, n.o.s 8 UN2801 I 8 11, B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L A II 8 11, B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L A III 8 11, IB3, T7, TP1, TP28 154 203 241 5 L 60 L A *         *         *         *         *         *         * Ethyl mercaptan 3 UN2363 I 3 T11, TP2, TP13 None 201 243 Forbidden 30 L E 95, 102. *         *         *         *         *         *         * Ethyldichlorosilane 4.3 UN1183 I 4.3, 8, 3 A2, A7, N34, T14, TP2, TP7, TP13 None 201 244 Forbidden 1 L D 21, 28, 40, 49, 100. *         *         *         *         *         *         * Fluoroboric acid 8 UN1775 II 8 A7, B2, B15, IB2, N3, N34, T7, TP2 154 202 242 1 L 30 L A Fluorophosphoric acid anhydrous 8 UN1776 II 8 A7, B2, IB2, N3, N34, T8, TP2 None 202 242 1 L 30 L A *         *         *         *         *         *         * Fluorosilicic acid 8 UN1778 II 8 A7, B2, B15, IB2, N3, N34, T8, TP2 None 202 242 1 L 30 L A Fluorosulfonic acid 8 UN1777 I 8 A7, A10, B6, B10, N3, N36, T10, TP2 None 201 243 0.5 L 2.5 L D 40. *         *         *         *         *         *         * Hexafluorophosphoric acid 8 UN1782 II 8 A7, B2, IB2, N3, N34, T8, TP2 None 202 242 1 L 30 L A *         *         *         *         *         *         * Hydrazine, anhydrous 8 UN2029 I 8, 3, 6.1 A7, A10, B7, B16, B53 None 201 243 Forbidden 2.5 L D 40, 52, 125. *         *         *         *         *         *         * Hydriodic acid 8 UN1787 II 8 A3, B2, IB2, N41, T7, TP2 154 202 242 1 L 30 L C III 8 IB3, T4, TP1 154 203 241 5 L 60 L C 8. *         *         *         *         *         *         * Hydrobromic acid, with not more than 49 percent hydrobromic acid 8 UN1788 II 8 A3, B2, B15, IB2, N41, T7, TP2 154 202 242 1 L 30 L C III 8 A3, IB3, T4, TP1 154 203 241 5 L 60 L C 8. *         *         *         *         *         *         * Hydrochloric acid 8 UN1789 II 8 386, A3, B3, B15, B133, IB2, N41, T8, TP2 154 202 242 1 L 30 L C III 8 A3, IB3, T4, TP1 154 203 241 5 L 60 L C 8. *         *         *         *         *         *         * Hydrofluoric acid and Sulfuric acid mixtures 8 UN1786 I 8, 6.1 A7, B15, B23, N5, N34, T10, TP2, TP13 None 201 243 Forbidden 2.5 L D 40. *         *         *         *         *         *         * Hydrofluoric acid, with more than 60 percent strength 8 UN1790 I 8, 6.1 A7, B4, B15, B23, N5, N34, T10, TP2, TP13 None 201 243 0.5 L 2.5 L D 12, 25, 40. Hydrofluoric acid, with not more than 60 percent strength 8 UN1790 II 8, 6.1 A7, B15, IB2, N5, N34, T8, TP2 154 202 243 1 L 30 L D 12, 25, 40. *         *         *         *         *         *         * Hydrogen peroxide and peroxyacetic acid mixtures, stabilized with acids, water, and not more than 5 percent peroxyacetic acid 5.1 UN3149 II 5.1, 8 145, A2, A3, B53, IB2, IP5, T7, TP2, TP6, TP24 None 202 243 1 L 5 L D 25, 66, 75. *         *         *         *         *         *         * Hydrogen peroxide, aqueous solutions with not less than 20 percent but not more than 40 percent hydrogen peroxide (stabilized as necessary) 5.1 UN2014 II 5.1, 8 A2, A3, B53, IB2, IP5, T7, TP2, TP6, TP24, TP37 None 202 243 1 L 5 L D 25, 66, 75. *         *         *         *         *         *         * Lithium aluminum hydride, ethereal 4.3 UN1411 I 4.3, 3 A2, A11, N34 None 201 244 Forbidden 1 L D 13, 40, 148. *         *         *         *         *         *         * Mercaptans, liquid, flammable, toxic, n.o.s. or Mercaptan mixtures, liquid, flammable, toxic, n.o.s 3 UN1228 II 3, 6.1 IB2, T11, TP2, TP27 None 202 243 Forbidden 60 L B 40, 95, 102. III 3, 6.1 B1, IB3, T7, TP1, TP28 150 203 242 5 L 220 L A 40, 95, 102. Mercaptans, liquid, toxic, flammable, n.o.s. or Mercaptan mixtures, liquid, toxic, flammable, n.o.s., flash point not less than 23 degrees C 6.1 UN3071 II 6.1, 3 IB2, T11, TP2, TP13, TP27 153 202 243 5 L 60 L C 40, 102, 121. *         *         *         *         *         *         * Methyldichlorosilane 4.3 UN1242 I 4.3, 8, 3 A2, A7, B6, B77, N34, T14, TP2, TP7, TP13 None 201 243 Forbidden 1 L D 21, 28, 40, 49, 100. *         *         *         *         *         *         * Morpholine 8 UN2054 I 8, 3 T10, TP2 None 201 243 0.5 L 2.5 L A *         *         *         *         *         *         * Nitric acid other than red fuming, with at least 65 percent, but not more than 70 percent nitric acid 8 UN2031 II 8, 5.1 B2, B47, B53, IB2, IP15, T8, TP2 None 158 242 Forbidden 30 L D 66, 74, 89, 90. Nitric acid other than red fuming, with more than 20 percent and less than 65 percent nitric acid 8 UN2031 II 8 B2, B47, B53, IB2, IP15, T8, TP2 None 158 242 Forbidden 30 L D 44, 66, 74, 89, 90. Nitric acid other than red fuming with not more than 20 percent nitric acid 8 UN2031 II 8 B2, B47, B53, IB2, T8, TP2 None 158 242 1 L 30 L D *         *         *         *         *         *         * Nitric acid other than red fuming, with more than 70 percent nitric acid 8 UN2031 I 8, 5.1 B47, B53, T10, TP2, TP12, TP13 None 158 243 Forbidden 2.5 L D 44, 66, 89, 90, 110, 111. *         *         *         *         *         *         * Nitrohydrochloric acid 8 UN1798 I 8 B10, N41, T10, TP2, TP13 None 201 243 Forbidden 2.5 L D 40, 66, 74, 89, 90. *         *         *         *         *         *         * Nitrosylsulfuric acid, liquid 8 UN2308 II 8 A3, A7, B2, IB2, N34, T8, TP2 154 202 242 1 L 30 L D 40, 66, 74, 89, 90. *         *         *         *         *         *         * Organotin compounds, liquid, n.o.s 6.1 UN2788 I 6.1 N33, N34, T14, TP2, TP13, TP27 None 201 243 1 L 30 L B 40. II 6.1 A3, IB2, N33, N34, T11, TP2, TP13, TP27 153 202 243 5 L 60 L A 40. III 6.1 IB3, T7, TP2, TP28 153 203 241 60 L 220 L A 40. *         *         *         *         *         *         * G Oxidizing liquid, corrosive, n.o.s 5.1 UN3098 I 5.1, 8 62 None 201 244 Forbidden 2.5 L D 13, 56, 58, 138. II 5.1, 8 62, IB1 None 202 243 1 L 5 L B 13, 56, 58, 138. III 5.1, 8 62, IB2 152 203 242 2.5 L 30 L B 13, 56, 58, 138. G Oxidizing liquid, n.o.s 5.1 UN3139 I 5.1 62, 127, A2 None 201 243 Forbidden 2.5 L D 56, 58, 138. II 5.1 62, 127, 148, A2, IB2 152 202 242 1 L 5 L B 56, 58, 138. III 5.1 62, 127, 148, A2, IB2 152 203 241 2.5 L 30 L B 56, 58, 138. G Oxidizing liquid, toxic, n.o.s 5.1 UN3099 I 5.1, 6.1 62 None 201 244 Forbidden 2.5 L D 56, 58, 138. II 5.1, 6.1 62, IB1 152 202 243 1 L 5 L B 56, 58, 95, 138. III 5.1, 6.1 62, IB2 152 203 242 2.5 L 30 L B 56, 58, 95, 138. *         *         *         *         *         *         * Perchloric acid with more than 50 percent but not more than 72 percent acid, by mass 5.1 UN1873 I 5.1, 8 A2, N41, T10, TP1 None 201 243 Forbidden 2.5 L D 66. *         *         *         *         *         *         * Phosphorus tribromide 8 UN1808 II 8 A3, A7, B2, B25, IB2, N34, N43, T7, TP2 None 202 242 Forbidden 30 L C 40. *         *         *         *         *         *         * Propanethiols 3 UN2402 II 3 IB2, T4, TP1, TP13 150 202 242 5 L 60 L E 95, 102. *         *         *         *         *         *         * Propylene oxide 3 UN1280 I 3 N34, T11, TP2, TP7 None 201 243 1 L 30 L E 40. *         *         *         *         *         *         * 1,2-Propylenediamine 8 UN2258 II 8, 3 A3, IB2, N34, T7, TP2 None 202 243 1 L 30 L A 40. Propyleneimine, stabilized 3 UN1921 I 3, 6.1 N34, T14, TP2, TP13 None 201 243 1 L 30 L B 40. *         *         *         *         *         *         * Selenium oxychloride 8 UN2879 I 8, 6.1 A7, N34, T10, TP2, TP13 None 201 243 0.5 L 2.5 L E 40. *         *         *         *         *         *         * Silicon tetrachloride 8 UN1818 II 8 A3, B2, B6, T10, TP2, TP7, TP13 None 202 242 Forbidden 30 L C 40. *         *         *         *         *         *         * Sulfur chlorides 8 UN1828 I 8 5, A7, A10, B10, B77, N34, T20, TP2 None 201 243 Forbidden 2.5 L C 40. *         *         *         *         *         *         * Sulfuric acid, fuming with less than 30 percent free sulfur trioxide 8 UN1831 I 8 A7, N34, T20, TP2,TP13 None 201 243 Forbidden 2.5 L C 14, 40. *         *         *         *         *         *         * Trichloroacetic acid, solution 8 UN2564 II 8 A3, A7, B2, IB2, N34, T7, TP2 154 202 242 1 L 30 L B III 8 A3, A7, IB3, N34, T4, TP1 154 203 241 5 L 60 L B 8. *         *         *         *         *         *         * Trifluoroacetic acid 8 UN2699 I 8 A7, B4, N3, N34, N36, T10, TP2 None 201 243 0.5 L 2.5 L B 12, 25, 40. *         *         *         *         *         *         * Valeryl chloride 8 UN2502 II 8, 3 A3, A7, B2, IB2, N34, T7, TP2 154 202 243 1 L 30 L C 40. *         *         *         *         *         *         * Vanadium oxytrichloride 8 UN2443 II 8 A3, A7, B2, B16, IB2, N34, T7, TP2 154 202 242 Forbidden 30 L C 40. *         *         *         *         *         *         * Vanadium tetrachloride 8 UN2444 I 8 A7, B4, N34, T10, TP2 None 201 243 Forbidden 2.5 L C 40. *         *         *         *         *         *         * Vinyl ethyl ether, stabilized 3 UN1302 I 3 T11, TP2 None 201 243 1 L 30 L D *         *         *         *         *         *         * Xylyl bromide, liquid 6.1 UN1701 II 6.1 A3, A7, IB2, N33, T7, TP2, TP13 None 340 None Forbidden 60 L D 40. *         *         *         *         *         *         *
    3. In § 172.102 paragraph (c)(2), special provision A3 is revised as follows:
    § 172.102 Special provisions.

    (c) * * *

    (2) * * *

    A3 For combination packagings, if glass inner packagings (including ampoules) are used, they must be packed with absorbent material in tightly closed rigid and leakproof receptacles before packing in outer packagings.

    PART 175—CARRIAGE BY AIRCRAFT 4. The authority citation for part 175 continues to read as follows: Authority:

    49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97.

    5. In § 175.10, paragraphs (a)(18) and (a)(18)(i) are revised to read as follows:
    § 175.10 Exceptions for passengers, crewmembers, and air operators.

    (a) * * *

    (18) Except as provided in § 173.21 of this subchapter, portable electronic devices (e.g., watches, calculating machines, cameras, cellular phones, laptop and notebook computers, camcorders, medical devices etc.) containing dry cells or dry batteries (including lithium cells or batteries) and spare dry cells or batteries for these devices, when carried by passengers or crew members for personal use. Portable electronic devices powered by lithium batteries may be carried in either checked or carry-on baggage. Spare lithium batteries must be carried in carry-on baggage only. Each installed or spare lithium battery must be of a type proven to meet the requirements of each test in the UN Manual of Tests and Criteria, part III, sub-section 38.3 and each spare lithium battery must be individually protected so as to prevent short circuits (e.g., by placement in original retail packaging, by otherwise insulating terminals by taping over exposed terminals, or placing each battery in a separate plastic bag or protective pouch). In addition, each installed or spare lithium battery must not exceed the following:

    (i) For a lithium metal battery, the lithium content must not exceed 2 grams. With the approval of the operator, portable medical electronic devices (e.g. automated external defibrillators (AED), nebulizer, continuous positive airway pressure (CPAP), etc.) may contain lithium metal batteries exceeding 2 grams but not exceeding 8 grams. No more than two individually protected lithium metal batteries each exceeding 2 grams, but not exceeding 8 grams, may be carried as spare batteries for portable medical electronic devices in carry-on baggage and must be carried with the portable medical electronic device they are intended to operate;

    6. In § 175.30, paragraphs (c) and (c)(1) are revised to read as follows:
    § 175.30 Inspecting shipments.

    (c) A hazardous material may be carried aboard an aircraft only if, based on the inspection by the operator, the package, outside container, freight container, overpack, or unit load device containing the hazardous material:

    (1) Has no leakage or other indication that its integrity has been compromised; and

    7. Section 175.33 is revised to read as follows:
    § 175.33 Shipping paper and notification of pilot-in-command.

    (a) When a hazardous material subject to the provisions of this subchapter is carried in an aircraft, a copy of the shipping paper required by § 175.30(a)(2) must accompany the shipment it covers during transportation aboard the aircraft. The operator of the aircraft must provide the pilot-in-command and dispatcher (or other ground support personnel with responsibilities for operational control of the aircraft as designated in the operator's manual) assigned to the flight with accurate and legible written information as early as practicable before departure of the aircraft, but in no case later than when the aircraft moves under its own power, which specifies at least the following:

    (1) The air waybill number (when issued);

    (2) The proper shipping name, hazard class, subsidiary risk(s) corresponding to a required label(s), packing group and identification number of the material, including any remaining aboard from prior stops, as specified in § 172.101 of this subchapter or the ICAO Technical Instructions (IBR, see § 171.7 of this subchapter). In the case of Class 1 materials, the compatibility group letter also must be shown.

    (3) The total number of packages;

    (4) The location of the packages aboard the aircraft;

    (5) The net quantity or gross weight, as applicable, for each package except those containing Class 7 (radioactive) materials. For a shipment consisting of multiple packages containing hazardous materials bearing the same proper shipping name and identification number, only the total quantity and an indication of the quantity of the largest and smallest package at each loading location need to be provided. For consumer commodities, the information provided may be either the gross mass of each package or the average gross mass of the packages as shown on the shipping paper;

    (6) For Class 7 (radioactive) materials, the number of packages, overpacks or freight containers, their category, transport index (if applicable), and their location aboard the aircraft;

    (7) Confirmation that the package must be carried only on cargo aircraft if its transportation aboard passenger-carrying aircraft is forbidden;

    (8) The airport at which the package(s) is to be unloaded;

    (9) An indication, when applicable, that a hazardous material is being carried under terms of a special permit;

    (10) The telephone number of a person not aboard the aircraft from whom the information contained in the notification of pilot-in-command can be obtained. The aircraft operator must ensure the telephone number is monitored at all times the aircraft is in flight. The telephone number is not required to be placed on the notification of pilot-in-command if the phone number is in a location in the cockpit available and known to the flight crew; and

    (11) The date of the flight;

    (12) For UN1845, Carbon dioxide, solid (dry ice), only the UN number, proper shipping name, hazard class, total quantity in each hold aboard the aircraft, and the airport at which the package(s) is to be unloaded must be provided.

    (13) For UN 3480, Lithium ion batteries, and UN 3090, Lithium metal batteries, the information required by paragraph (a) of this section may be replaced by the UN number, proper shipping name, class, total quantity at each specific loading location, and whether the package must be carried on cargo aircraft only. UN 3480 (Lithium ion batteries) and UN 3090 (Lithium metal batteries) carried under an approval must meet all of the requirements of this section.

    (b)(1) The information provided to the pilot-in-command must also include a signed confirmation or some other indication from the person responsible for loading the aircraft that there was no evidence of any damage to or leakage from the packages or any leakage from the unit load devices loaded on the aircraft;

    (2) A copy of the written notification to pilot-in-command shall be readily available to the pilot-in-command and dispatcher during flight. Emergency response information required by subpart G of part 172 of this subchapter must be maintained in the same manner as the written notification to pilot-in-command during transport of the hazardous material aboard the aircraft.

    (3) The pilot-in-command must indicate on a copy of the information provided to the pilot-in-command, or in some other way, that the information has been received.

    (c) The aircraft operator must—

    (1) Retain a copy of the shipping paper required by § 175.30(a)(2) or an electronic image thereof, that is accessible at or through its principal place of business and must make the shipping paper available, upon request, to an authorized official of a federal, state, or local government agency at reasonable times and locations. For a hazardous waste, each shipping paper copy must be retained for three years after the material is accepted by the initial carrier. For all other hazardous materials, each shipping paper copy must be retained by the operator for one year after the material is accepted by the initial carrier. Each shipping paper copy must include the date of acceptance by the carrier. The date on the shipping paper may be the date a shipper notifies the air carrier that a shipment is ready for transportation, as indicated on the air waybill or bill of lading, as an alternative to the date the shipment is picked up or accepted by the carrier. Only an initial carrier must receive and retain a copy of the shipper's certification, as required by § 172.204 of this subchapter.

    (2) Retain a copy of each notification of pilot-in-command, an electronic image thereof, or the information contained therein for 90 days at the airport of departure or the operator's principal place of business.

    (3) Have the information required to be retained under this paragraph readily accessible at the airport of departure and the intended airport of arrival for the duration of the flight leg.

    (4) Make available, upon request, to an authorized official of a Federal, State, or local government agency (which includes emergency responders) at reasonable times and locations, the documents or information required to be retained by this paragraph. In the event of a reportable incident, as defined in § 171.15 of this subchapter, the aircraft operator must make immediately available to an authorized official of a Federal, State, or local government agency (which includes emergency responders), the documents or information required to be retained by this paragraph.

    (d) The documents required by paragraphs (a) and (b) this section may be combined into one document if it is given to the pilot-in-command before departure of the aircraft.

    8. In § 175.88, paragraph (c) is revised to read as follows:
    § 175.88 Inspection, orientation and securing packages of hazardous materials.

    (c) Packages containing hazardous materials must be:

    (1) Secured in an aircraft in a manner that will prevent any shifting or change in the orientation of the packages;

    (2) Protected from being damaged, including by the movement of baggage, mail, stores, or other cargo;

    (3) Handled so that accidental damage is not caused through dragging or mishandling; and

    (4) When containing Class 7 (radioactive) materials, secured in a manner that ensures that the separation requirements of §§ 175.701 and 175.702 will be maintained at all times during flight.

    Issued in Washington, DC, on November 21, 2016 under authority delegated in 49 CFR 1.97. William Schoonover, Acting Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration.
    [FR Doc. 2016-28403 Filed 12-2-16; 8:45 am] BILLING CODE 4910-60-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0132; 4500030115] Endangered and Threatened Wildlife and Plants; 90-Day Findings on Three Petitions; Correction AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Correction.

    SUMMARY:

    On November 30, 2016, we, the U.S. Fish and Wildlife Service (Service), published a document in the Federal Register announcing 90-day findings on three petitions to list or reclassify wildlife or plants under the Endangered Species Act of 1973, as amended (Act). That document included a not-substantial finding for Tetraneuris verdiensis (Verde four-nerve daisy). In the finding, we mistakenly attributed the petition to list Tetraneuris verdiensis as endangered or threatened and to designate critical habitat for this plant to the Center for Biological Diversity; however Glenn Rink submitted that petition to us. With this document, we correct that error. If you sent a comment previously, you need not resend the comment.

    DATES:

    Correction issued on December 5, 2016. To ensure that we will have adequate time to consider submitted information during the status reviews for the leopard and lesser prairie-chicken, we request that we receive information no later than January 30, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Regarding Tetraneuris verdiensis, contact Shaula Hedwall, 928-556-2118; [email protected] If you use a telecommunications device for the deaf, please call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of November 30, 2016 (81 FR 86315), in FR Doc. 2016-28513, on page 86317, in the first column, under the heading Evaluation of a Petition to List Tetraneuris verdiensis (Verde Four-nerve Daisy) as an Endangered or Threatened Species Under the Act, and the subheading Petition History, remove the words “the Center for Biological Diversity” and add in their place the words “Glenn Rink”.

    Dated: November 30, 2016. Tina A. Campbell, Chief, Division of Policy, Performance, and Management Programs, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-29055 Filed 12-2-16; 8:45 am] BILLING CODE 4333-15-P
    81 233 Monday, December 5, 2016 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. AMS-NOP-12-0060; NOP-12-14] National Organic Program: Notice of Final Guidance on Classification of Materials and Materials for Organic Crop Production AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice of availability of final guidance.

    SUMMARY:

    This notice announces availability of final guidance intended for use by accredited certifying agents, certified operations, material evaluation programs, and other organic industry stakeholders. The first set of guidance documents, NOP 5033, follows recommendations from the National Organic Standards Board (NOSB) concerning the classification of materials under the USDA organic regulations (7 CFR part 205). The Classification of Materials guidance, NOP 5033, details the procedures and decision trees for classifying materials used for organic crop production, livestock production, and handling. The second set of guidance documents, NOP 5034, clarifies certain materials for use in organic crop production. These documents include an illustrative list of allowed natural and synthetic materials and a limited appendix of materials prohibited in organic crop production.

    The guidance explains the policy of the National Organic Program (NOP) concerning the portions of the regulations in question, referenced herein.

    DATES:

    The final guidance documents announced by this notice are effective on December 6, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Paul Lewis, Ph.D., Director, Standards Division, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2646-So., Ag Stop 0268, Washington, DC 20250. Telephone: (202) 720-3252; Fax: (202) 205-7808.

    SUPPLEMENTARY INFORMATION: I. Background

    On April 2, 2013, the Agricultural Marketing Service (AMS) published in the Federal Register a notice of availability with request for public comment on two sets of draft guidance documents (78 FR 19637). These included NOP 5033—Classification of Materials and NOP 5034—Materials for Organic Crop Production. The draft guidance documents on Classification of Materials were developed in response to NOSB recommendations. The documents also address the identified need to develop guidance for certifying agents and certified operations for clarification on the classification of materials and for more definitive information on materials used in organic crop production.

    The draft guidance documents can be viewed online at http://www.ams.usda.gov/NopDraftGuidance. The 60-day comment period closed on June 3, 2013.

    AMS received 47 public comments on the draft guidance. Based on the comments received, NOP revised and is publishing final guidance on these topics.

    The final guidance documents are available from NOP through “The Program Handbook: Guidance and Instructions for Certifying Agents and Certified Operations.” The Program Handbook provides those who own, manage, or certify organic operations with guidance and instructions that can assist them in complying with the USDA organic regulations. The current edition of the Program Handbook is available online at http://www.ams.usda.gov/nop.

    Under the Organic Foods Production Act (OFPA) (7 U.S.C. 6501-6522), the National List of Allowed and Prohibited Substance section of the USDA organic regulations must include synthetic substances that are permitted for use in organic crop production, and nonsynthetic (natural) substances that are prohibited for use in organic crop production.

    Because industry typically uses the word “material” to describe “substance,” for the purposes of these guidance documents, “substance” and “material” are synonymous and interchangeable.

    Nonsynthetic (natural) materials are generally permitted to be used in organic production, but are not required to be included in the National List. At times, this construction of the National List has led to inconsistent determinations by industry on which input materials are allowed for organic production, since permitted nonsynthetic materials (e.g., feather meal, fish meal, botanical pesticides) are not specifically identified in the standards.

    The guidance document NOP 5033, Classification of Materials, provides guidance to the industry on how materials are classified as nonsynthetic, synthetic, agricultural, or nonagricultural. The terms “nonsynthetic,” “synthetic,” “agricultural,” and “nonagricultural” are defined at 7 CFR 205.2 of the USDA organic regulations. This guidance implements a series of NOSB recommendations and clarifies the classification of these defined terms. NOP 5033-1 includes a decision tree for classifying a material as synthetic or nonsynthetic. NOP 5033-2 includes a decision tree for classifying a material as agricultural or nonagricultural. For materials used in organic crop production, the classification guidance is intended to be used in conjunction with the final guidance NOP 5034, Materials for Organic Crop Production.

    The guidance document NOP 5034, Materials for Organic Crop Production, guides the industry on materials used in organic crop production. NOP 5034-1 is a tool for organic producers to understand which input materials are allowed in organic crop production. The guidance includes substances that are specifically allowed in section 205.601 of the USDA organic regulations, as well as materials that are permitted, but are not required to be included on the National List. The appendix NOP 5034-2 provides a list of materials that are specifically prohibited in organic crop production. Neither list is intended to be all inclusive. NOP 5034-2 does include items that have been previously reviewed by the NOSB and not recommended for use or whose use in organic crop production has expired. The appendix of prohibited materials also includes materials that are specifically listed in section 205.602 of the National List as prohibited for use in organic crop production (e.g., lead salts) or that are otherwise prohibited by the USDA organic regulations (e.g., sewage sludge). The guidance does not grant new allowances for any synthetic substance to be used in organic production that have not been specifically recommended by the NOSB and added to the National List through rulemaking.

    II. Significance of Guidance

    These final guidance documents are being issued in accordance with the Office of Management and Budget (OMB) Bulletin on Agency Good Guidance Practices (GGPs) (January 25, 2007, 72 FR 3432-3440). The purpose of GGPs is to ensure that program guidance documents are developed with adequate public participation, are readily available to the public, and are not applied as binding requirements. These final guidance documents represent NOP's current positions on these topics. It does not create or confer any rights for, or on, any person and does not operate to bind NOP or the public. Guidance documents are intended to offer uniform methods for operations that comply with the Organic Foods Production Act (OFPA), as amended (7 U.S.C. 6501-6522) and USDA organic regulations, thereby reducing the burden on operators of developing their own methods and to simplify audits and inspections. Alternative approaches that can demonstrate compliance with the OFPA and its implementing regulations are also acceptable. As with any alternative compliance approach, NOP strongly encourages industry to discuss alternative approaches with the NOP before implementing them to avoid unnecessary or wasteful expenditures of resources and to ensure the proposed alternative approach complies with the Act and its implementing regulations.

    III. Electronic Access

    Persons with access to Internet may obtain a copy of final guidance documents from the NOP's Web site at http://www.ams.usda.gov/nop. Request for hard copies of the final guidance documents can be obtained by submitting a written request to the person listed in the FOR FURTHER INFORMATION CONTACT section of this notification of availability.

    Authority:

    7 U.S.C. 6501-6522.

    Dated: November 29, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-29018 Filed 12-2-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Forest Service Lyon-Mineral Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Lyon-Mineral Resource Advisory Committee (RAC) will meet in Yerington, Nevada. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/pts/specialprojects/racweb.

    DATES:

    The meeting will be held January 12, 2017, at 1:00 p.m.

    All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Lyon County Administration Complex, Commissioners Meeting Room, 27 South Main Street, Yerington, Nevada.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Bridgeport Ranger Station, HC62, Box 1000, Bridgeport, California. Please call ahead at 760-932-7070 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Jeremy Marshall, Designated Federal Officer by phone at 760-932-5801, or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Discuss new project proposals; and

    2. Receive an update on current and completed projects.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by January 3, 2017, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Jeremy Marshall, Designated Federal Officer, Bridgeport Ranger District, HC 62, Box 1000, Bridgeport, California 93517; or by email to [email protected], or via facsimile to 760-932-5899.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: November 28, 2016. Jeremy Marshall, Bridgeport District Ranger.
    [FR Doc. 2016-29067 Filed 12-2-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Office of Inspector General Succession, Delegations of Authority, and Signature Authorities, No. IG-1313, Change 8 AGENCY:

    Office of Inspector General, USDA.

    ACTION:

    Notice.

    SUMMARY:

    On November 9, 2016, USDA Inspector General Phyllis K. Fong, pursuant to authority vested in her by the Federal Vacancies Reform Act (5 U.S.C. 3345-3349d) and the Inspector General Act of 1978, as amended (5 U.S.C. app. 3), issued IG-1313, Change 8, Succession, Delegations of Authority, and Signature Authorities. This directive is a revised succession order and reflects delegations of authority for the Office of Inspector General. This directive has been revised to update the lines of succession and delegation, and to clarify procedures to be followed in the event the Office of Inspector General (OIG) headquarters must be relocated. This directive provides guidance on the transfer of functions and duties of the Inspector General (IG), as well as other OIG central management functions, regardless of what events necessitate such transfer.

    DATES:

    November 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Christy Slamowitz, Counsel to the Inspector General, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 441-E, Washington, DC 20250-2308, Telephone: (202) 720-9110.

    SUPPLEMENTARY INFORMATION:

    The OIG proposes revising the succession and delegations of authority for OIG by publishing a detailed sequence of succession within the Washington, DC, headquarters, followed by a detailed sequence of succession by region and position. This action is taken pursuant to authority vested in the Inspector General by the Federal Vacancies Reform Act (5 U.S.C. 3345-3349d) and the Inspector General Act of 1978 (5 U.S.C. app. 3).

    For the reasons stated in the preamble, IG-1313, Change 8, Succession, Delegations of Authority, and Signature Authorities, has been revised to give notice of a delegation of authority and the line of succession from the Inspector General as follows:

    I. Pursuant to authority vested in me by the Federal Vacancies Reform Act (5 U.S.C. 3345-3349d) and the Inspector General Act of 1978, as amended (5 U.S.C. app. 3), during any period in which the Inspector General (IG), United States Department of Agriculture (USDA), resigns, dies, or is otherwise unable to perform the functions and duties of the office, and unless the President shall designate another officer to perform the functions and duties of the position, the Deputy IG, as the designated first assistant to the IG, shall temporarily perform the IG's functions and duties in an acting capacity, pursuant to and subject to the Federal Vacancies Reform Act (5 U.S.C. 3345-3349d). In the absence of the IG and Deputy IG, the officials designated below, in the order listed, shall become the acting Deputy IG and so shall temporarily perform the functions and duties of the IG. This order may be changed by a delegation in writing from the IG, or by the Deputy IG while acting in the absence of the IG:

    1. Assistant IG for Audit (AIG/A);

    2. Assistant IG for Investigations (AIG/I);

    3. Assistant IG for Management (AIG/M);

    4. Assistant IG for Data Sciences (AIG/DS);

    5. Counsel to the IG;

    6. Deputy Assistant IG for Audit (DAIG/A), by seniority;

    7. Deputy Assistant IG for Investigations (DAIG/I);

    The following officials for the listed locations in the following order:

    8. Audit Directors, by seniority, then Investigations Director, Technical Crimes Division—Kansas City, Missouri;

    9. Special Agent-in-Charge (SAC)—Temple, Texas;

    10. Audit Director—Beltsville, Maryland;

    11. SAC—New York, New York;

    12. Audit Director, then SAC—Oakland, California;

    13. Audit Director, then SAC—Atlanta, Georgia;

    14. Audit Director, then SAC—Chicago, Illinois;

    15. Director, Office of Compliance and Integrity; or

    16. Director, Office of Diversity and Conflict Resolution.

    II. For purposes of this order of succession, a designated official is a person holding a permanent appointment to the position. Persons filling positions in an acting capacity do not substitute for officials holding a permanent appointment to a position. If a position is vacant or an official occupying the position on a permanent basis is absent or unavailable, authority passes to the next available official occupying a position in the order of succession.

    III. This delegation is not in derogation of any authority residing in the above officials relating to the operation of their respective programs, nor does it affect the validity of any delegations currently in force and effect and not specifically cited as revoked or revised herein.

    IV. The authorities delegated herein may not be redelegated.

    Authority:

    5 U.S.C. 3345-3349d; 5 U.S.C. app. 3.

    Dated: November 29, 2016. Phyllis K. Fong, Inspector General.
    [FR Doc. 2016-29096 Filed 12-2-16; 8:45 am] BILLING CODE 3410-23-P
    DEPARTMENT OF COMMERCE Bureau of the Census [Docket Number 161107999-6999-01] Voting Rights Act Amendments of 2006, Determinations Under Section 203 AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Notice of determination.

    SUMMARY:

    As required by Section 203 of the Voting Rights Act of 1965, as amended, this notice publishes the Bureau of the Census (Census Bureau) Director's determinations as to which political subdivisions are subject to the minority language assistance provisions of the Act. As of this date, those jurisdictions that are listed as covered by Section 203 have a legal obligation to provide the minority language assistance prescribed by the Act.

    EFFECTIVE DATE:

    This notice is effective on December 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For information regarding this notice, please contact Mr. James Whitehorne, Chief, Census Redistricting and Voting Rights Data Office, Bureau of the Census, United States Department of Commerce, Room 4H057, 4600 Silver Hill Rd, Washington, DC 20233, by telephone at 301-763-4039, or visit the Redistricting & Voting Rights Data Office Internet site at http://www.census.gov/rdo/.

    For information regarding the applicable provisions of the Act, please contact T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 950 Pennsylvania Avenue NW., Washington, DC 20530, by telephone at (800) 253-3931 or visit the Voting Section Internet site at https://www.justice.gov/crt/voting-section.

    SUPPLEMENTARY INFORMATION:

    In July 2006, Congress amended the Voting Rights Act of 1965, now codified at Title 52, United States Code (U.S.C.), § , 10301 et seq. (See Pub. L. 109-246, 120 Stat. 577 (2006)). Among other changes, the sunset date for minority language assistance provisions set forth in Section 203 of the Act was extended to August 5, 2032.

    Section 203 mandates that a state or political subdivision must provide language assistance to voters if more than five (5) percent of voting age citizens are members of a single-language minority group and do not “speak or understand English adequately enough to participate in the electoral process” and if the rate of those citizens who have not completed the fifth grade is higher than the national rate of voting age citizens who have not completed the fifth grade. When a state is covered for a particular language minority group, an exception is made for any political subdivision in which less than five (5) percent of the voting age citizens are members of the minority group and are limited in English proficiency, unless the political subdivision is covered independently. A political subdivision is also covered if more than 10,000 of the voting age citizens are members of a single-language minority group, do not “speak or understand English adequately enough to participate in the electoral process,” and the rate of those citizens who have not completed the fifth grade is higher than the national rate of voting age citizens who have not completed the fifth grade.

    Finally, if more than five (5) percent of the American Indian or Alaska Native voting age citizens residing within an American Indian Area, as defined for the purposes of the decennial census, are members of a single language minority group, do not “speak or understand English adequately enough to participate in the electoral process,” and the rate of those citizens who have not completed the fifth grade is higher than the national rate of voting age citizens who have not completed the fifth grade, any political subdivision, such as a county, which contains all or any part of that American Indian Area, is covered by the minority language assistance provision set forth in Section 203. For the 2010 Census, American Indian areas and Alaska Native Regional Corporations were identified by the federally recognized tribal governments, Bureau of Indian Affairs, and state governments. The Census Bureau worked with American Indians and Alaska Natives to identify statistical areas, such as Oklahoma Tribal Statistical Areas (OTSA), Tribal Designated Statistical Areas (TDSA), State Designated Tribal Statistical Areas (SDTSA), and Alaska Native Village Statistical Areas (ANVSA).

    Pursuant to Section 203, the Census Bureau Director has the responsibility to determine which states and political subdivisions are subject to the minority language assistance provisions of Section 203. The state and political subdivisions obligated to comply with the requirements are listed in the attachment to this Notice.

    Section 203 also provides that the “determinations of the Director of the Census under this subsection shall be effective upon publication in the Federal Register and shall not be subject to review in any court.” Therefore, as of this date, those jurisdictions that are listed as covered by Section 203 have legal obligation to provide the minority language assistance prescribed in Section 203 of the Act. In the cases where a state is covered, those counties or county equivalents not displayed in the attachment are exempt from the obligation. Those jurisdictions subject to Section 203 of the Act previously, but not included on the list below, are no longer obligated to comply with Section 203.

    Dated: November 22, 2016. John H. Thompson, Director, Bureau of the Census. Covered Areas for Voting Rights Bilingual Election Materials—2015 State and political subdivision Language minority group Alaska: Aleutians East Borough Filipino. Aleutians East Borough Hispanic. Aleutians East Borough Yup'ik. Aleutians West Census Area Aleut. Aleutians West Census Area Filipino. Bethel Census Area Inupiat. Bethel Census Area Yup'ik. Bristol Bay Borough Yup'ik. Dillingham Census Area Yup'ik. Kenai Peninsula Borough Yup'ik. Kodiak Island Borough Yup'ik. Lake and Peninsula Borough Yup'ik. Nome Census Area Inupiat. Nome Census Area Yup'ik. North Slope Borough Inupiat. Northwest Arctic Borough Inupiat. Southeast Fairbanks Census Area Alaskan Athabascan. Valdez-Cordova Census Area Alaskan Athabascan. Wade Hampton Census Area Inupiat. Wade Hampton Census Area Yup'ik. Yukon-Koyukuk Census Area Alaskan Athabascan. Yukon-Koyukuk Census Area Inupiat. Arizona: Apache County American Indian (Navajo). Coconino County American Indian (Navajo). Gila County American Indian (Apache). Graham County American Indian (Apache). Maricopa County Hispanic. Navajo County American Indian (Navajo). Pima County Hispanic. Pinal County American Indian (Apache). Santa Cruz County Hispanic. Yuma County Hispanic. California: State Coverage Hispanic. Alameda County Chinese (including Taiwanese). Alameda County Filipino. Alameda County Hispanic. Alameda County Vietnamese. Colusa County Hispanic. Contra Costa County Chinese (including Taiwanese). Contra Costa County Hispanic. Del Norte County American Indian (All other American Indian Tribes). Fresno County Hispanic. Glenn County Hispanic. Imperial County Hispanic. Kern County Hispanic. Kings County Hispanic. Los Angeles County Cambodian. Los Angeles County Chinese (including Taiwanese). Los Angeles County Filipino. Los Angeles County Hispanic. Los Angeles County Korean. Los Angeles County Vietnamese. Madera County Hispanic. Merced County Hispanic. Monterey County Hispanic. Orange County Chinese (including Taiwanese). Orange County Hispanic. Orange County Korean. Orange County Vietnamese. Riverside County Hispanic. Sacramento County Chinese (including Taiwanese). Sacramento County Hispanic. San Benito County Hispanic. San Bernardino County Hispanic. San Diego County American Indian (All other American Indian Tribes). San Diego County Chinese (including Taiwanese). San Diego County Filipino. San Diego County Hispanic. San Diego County Vietnamese. San Francisco County Chinese (including Taiwanese). San Francisco County Hispanic. San Joaquin County Hispanic. San Mateo County Chinese (including Taiwanese). San Mateo County Hispanic. Santa Barbara County Hispanic. Santa Clara County Chinese (including Taiwanese). Santa Clara County Filipino. Santa Clara County Hispanic. Santa Clara County Vietnamese. Stanislaus County Hispanic. Tulare County Hispanic. Ventura County Hispanic. Colorado: Conejos County Hispanic. Costilla County Hispanic. Denver County Hispanic. La Plata County American Indian (Ute). Montezuma County American Indian (Ute). Saguache County Hispanic. Connecticut: Bridgeport town Hispanic. East Hartford town Hispanic. Hartford town Hispanic. Kent town American Indian (All other American Indian Tribes). Meriden town Hispanic. New Britain town Hispanic. New Haven town Hispanic. New London town Hispanic. Waterbury town Hispanic. Windham town Hispanic. Florida: State Coverage Hispanic. Broward County Hispanic. DeSoto County Hispanic. Hardee County Hispanic. Hendry County Hispanic. Hillsborough County Hispanic. Lee County Hispanic. Miami-Dade County Hispanic. Orange County Hispanic. Osceola County Hispanic. Palm Beach County Hispanic. Pinellas County Hispanic. Polk County Hispanic. Seminole County Hispanic. Georgia: Gwinnett County Hispanic. Hawaii: Honolulu County Chinese (including Taiwanese). Honolulu County Filipino. Idaho: Lincoln County Hispanic. Illinois: Cook County Asian Indian. Cook County Chinese (including Taiwanese). Cook County Hispanic. Kane County Hispanic. Lake County Hispanic. Iowa: Buena Vista County Hispanic. Tama County American Indian (All other American Indian Tribes). Kansas: Finney County Hispanic. Ford County Hispanic. Grant County Hispanic. Haskell County Hispanic. Seward County Hispanic. Maryland: Montgomery County Hispanic. Massachusetts: Boston city Hispanic. Chelsea city Hispanic. Holyoke city Hispanic. Lawrence city Hispanic. Lowell city Cambodian. Lowell city Hispanic. Lynn city Hispanic. Malden city Chinese (including Taiwanese). Quincy city Chinese (including Taiwanese). Revere city Hispanic. Southbridge town Hispanic. Springfield city Hispanic. Worcester city Hispanic. Michigan: Colfax township Hispanic. Fennville city Hispanic. Hamtramck city Bangladeshi. Mississippi: Attala County American Indian (Choctaw). Jackson County American Indian (Choctaw). Jones County American Indian (Choctaw). Kemper County American Indian (Choctaw). Leake County American Indian (Choctaw). Neshoba County American Indian (Choctaw). Newton County American Indian (Choctaw). Noxubee County American Indian (Choctaw). Scott County American Indian (Choctaw). Winston County American Indian (Choctaw). Nebraska: Colfax County Hispanic. Dakota County Hispanic. Dawson County Hispanic. Nevada: Clark County Filipino. Clark County Hispanic. New Jersey: Bergen County Hispanic. Bergen County Korean. Camden County Hispanic. Cumberland County Hispanic. Essex County Hispanic. Hudson County Hispanic. Middlesex County Asian Indian. Middlesex County Hispanic. Passaic County Hispanic. Union County Hispanic. New Mexico: Bernalillo County American Indian (Navajo). Bernalillo County Hispanic. Chaves County Hispanic. Cibola County American Indian (Navajo). Doña Ana County Hispanic. Guadalupe County Hispanic. Hidalgo County Hispanic. Lea County Hispanic. Lincoln County American Indian (Apache). Luna County Hispanic. McKinley County American Indian (Navajo). Mora County Hispanic. Otero County American Indian (Apache). Rio Arriba County American Indian (Navajo). San Juan County American Indian (Navajo). San Juan County American Indian (Ute). San Miguel County Hispanic. Sandoval County American Indian (Navajo). Sandoval County American Indian (Pueblo). Santa Fe County American Indian (Pueblo). Socorro County American Indian (Navajo). Socorro County Hispanic. Union County Hispanic. Valencia County Hispanic. New York: Bronx County Hispanic. Kings County Chinese (including Taiwanese). Kings County Hispanic. Nassau County Hispanic. New York County Chinese (including Taiwanese). New York County Hispanic. Queens County Asian Indian. Queens County Chinese (including Taiwanese). Queens County Hispanic. Queens County Korean. Suffolk County Hispanic. Westchester County Hispanic. Oklahoma Texas County Hispanic. Pennsylvania: Berks County Hispanic. Lehigh County Hispanic. Philadelphia County Hispanic. Rhode Island: Central Falls city Hispanic. Pawtucket city Hispanic. Providence city Hispanic. Texas: State Coverage Hispanic. Andrews County Hispanic. Atascosa County Hispanic. Bailey County Hispanic. Bee County Hispanic. Bexar County Hispanic. Brooks County Hispanic. Caldwell County Hispanic. Calhoun County Hispanic. Cameron County Hispanic. Castro County Hispanic. Cochran County Hispanic. Crane County Hispanic. Crockett County Hispanic. Crosby County Hispanic. Culberson County Hispanic. Dallam County Hispanic. Dallas County Hispanic. Dawson County Hispanic. Deaf Smith County Hispanic. Dimmit County Hispanic. Duval County Hispanic. Ector County Hispanic. Edwards County Hispanic. El Paso County American Indian (Pueblo). El Paso County Hispanic. Floyd County Hispanic. Fort Bend County Hispanic. Frio County Hispanic. Gaines County Hispanic. Garza County Hispanic. Glasscock County Hispanic. Hale County Hispanic. Hansford County Hispanic. Harris County Chinese (including Taiwanese). Harris County Hispanic. Harris County Vietnamese. Hidalgo County Hispanic. Hockley County Hispanic. Hudspeth County Hispanic. Jeff Davis County Hispanic. Jim Hogg County Hispanic. Jim Wells County Hispanic. Jones County Hispanic. Karnes County Hispanic. Kenedy County Hispanic. Kinney County Hispanic. Kleberg County Hispanic. Knox County Hispanic. La Salle County Hispanic. Lamb County Hispanic. Live Oak County Hispanic. Lynn County Hispanic. Martin County Hispanic. Matagorda County Hispanic. Maverick County American Indian (All other American Indian Tribes). Maverick County Hispanic. McMullen County Hispanic. Medina County Hispanic. Menard County Hispanic. Midland County Hispanic. Moore County Hispanic. Nolan County Hispanic. Nueces County Hispanic. Ochiltree County Hispanic. Parmer County Hispanic. Pecos County Hispanic. Presidio County Hispanic. Reagan County Hispanic. Reeves County Hispanic. Refugio County Hispanic. San Patricio County Hispanic. Schleicher County Hispanic. Scurry County Hispanic. Sherman County Hispanic. Starr County Hispanic. Sterling County Hispanic. Sutton County Hispanic. Swisher County Hispanic. Tarrant County Hispanic. Tarrant County Vietnamese. Terry County Hispanic. Titus County Hispanic. Travis County Hispanic. Upton County Hispanic. Uvalde County Hispanic. Val Verde County Hispanic. Ward County Hispanic. Webb County Hispanic. Willacy County Hispanic. Winkler County Hispanic. Yoakum County Hispanic. Zapata County Hispanic. Zavala County Hispanic. Utah: San Juan County American Indian (Navajo). San Juan County American Indian (Ute). Virginia: Fairfax County Hispanic. Fairfax County Vietnamese. Washington: Adams County Hispanic. Franklin County Hispanic. King County Chinese (including Taiwanese). King County Vietnamese. Yakima County Hispanic. Wisconsin: Arcadia city Hispanic. Madison town Hispanic. Milwaukee city Hispanic.
    [FR Doc. 2016-28969 Filed 12-2-16; 8:5 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Economics and Statistics Administration Extension of Deadline for Nominations of Members To Serve on the Commerce Data Advisory Council (CDAC) AGENCY:

    Economics and Statistics Administration (ESA), Department of Commerce.

    ACTION:

    Extension of deadline for nominations of members to the Commerce Data Advisory Council (CDAC).

    SUMMARY:

    The Secretary of Commerce is requesting nomination of individuals to the Commerce Data Advisory Council. The Secretary will consider nominations received in response to this notice, as well as from other sources. The SUPPLEMENTARY INFORMATION section of this notice provides committee and membership criterial.

    DATES:

    The Economics and Statistics Administration must receive nominations of members by midnight December 16, 2016.

    ADDRESSES:

    Please submit nominations to the email account [email protected], this account is specifically set up to receive Data Advisory Council applications. Nominations may also be submitted by postal delivery to Burton Reist, Director of External Affairs, Economics and Statistics Administration/DFO CDAC, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Burton Reist, Director of External Affairs, Economics and Statistics Administration, Department of Commerce, at (202) 482-3331 or email [email protected], also at 1401 Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: I. Background

    The Department of Commerce (Department) collects, compiles, analyzes, and disseminates a treasure trove of data, including data on the Nation's economy, population, and environment. This data is fundamental to the Department's mission and is used for the protection of life and property, for scientific purposes, and to enhance economic growth. However, the Department's capacity to disseminate the increasing amount of data held and to disseminate it in formats most useful to its customers is significantly constrained.

    In order to realize the potential value of the data the Department collects, stores, and disseminates, the Department must minimize barriers to accessing and using the data. Consistent with privacy and security considerations, the Department is firmly committed to unleashing its untapped data resources in ways that best support downstream information access, processing, analysis, and dissemination.

    The Commerce Data Advisory Council (CDAC) provides advice and recommendations, to include process and infrastructure improvements, to the Secretary on ways to make Commerce data easier to find, access, use, combine and disseminate. The aim of this advice shall be to maximize the value of Commerce data to all users including governments, businesses, communities, academia, and individuals.

    The Secretary will draw CDAC membership from the data industry academia, non-profits and state and local governments with a focus on recognized expertise in collection, compilation, analysis, and dissemination. As privacy concerns span the entire data lifecycle, expertise in privacy protection also will be represented on the Council. The Secretary will select members that represent the entire spectrum of Commerce data including demographic, economic, scientific, environmental, patent, and geospatial data. The Secretary will select members from the information technology, business, non-profit, and academic communities, and state and local governments. Collectively, their knowledge will include all types of data Commerce distributes and the full lifecycle of data collection, compilation, analysis, and dissemination.

    II. Description of Duties

    The Council shall advise the Secretary on ways to make Commerce data easier to find, access, use, combine, and disseminate. Such advice may include recommended process and infrastructure improvements. The aim of this advice shall be to maximize the value of Commerce data to governments, businesses, communities, and individuals.

    In carrying out its duties, the Council may consider the following:

    —Data management practices that make it easier to track and disseminate integrated, interoperable data for diverse users; —Best practices that can be deployed across Commerce to achieve common, open standards related to taxonomy, vocabulary, application programming interfaces (APIs), metadata, and other key data characteristic