Federal Register Vol. 81, No.239,

I. Executive Summary Purpose of the Regulatory Action

This rule finalizes the provisions of a proposed rule published on January 6, 2016 (81 FR 398). With this final rule, FNS is amending the SNAP regulations at 7 CFR parts 271, 272, 273, 274 and 278 to codify and expand guidance that was issued December 29, 2014, requiring State agencies that intend to implement the photo EBT card option under Section 7(h)(9) of the Act, 7 U.S.C. 2016(h)(9), to submit a comprehensive Implementation Plan that addresses certain operational issues to ensure State implementation is consistent with all Federal requirements and that program access is protected for participating households.

In particular, this rule clarifies that the State option to place a photograph on an EBT card is a function of issuance. Pursuant to this, State agencies are prohibited from having photo EBT card requirements that affect the household's eligibility or the certification process. Moreover, this rule clarifies the right of all household members and any other individual permitted by the household to use the EBT card to purchase food or meals on behalf of the household, regardless of whether their photo is on the card, and further defines the responsibility of State agencies to ensure that retailers understand photo EBT requirements when processing transactions involving SNAP.

The final rule removes the provision concerning multiple card usage at the point of sale and incorporates the following minor modifications for clarity:

• Language added to clarify that States must issue both the benefits and EBT card without delay in accordance with SNAP application processing standards, whether or not a photo is on the card.

• Language added to clarify that expedited households are exempt from a mandatory photo EBT card policy until the next recertification.

• Language added to clarify that States may not charge households card replacement fees for any card issued as part of the implementation of the photo EBT card option.

• Language added to clarify that households have the right to permit other individuals to use the household's EBT card on an ad hoc basis for the purpose of attaining assistance with purchasing food, whether or not the State has a photo EBT requirement.

• Language added to specify that Implementation Plans must also include the text that will be added to EBT cards to state that anyone with a valid PIN may use the card even if he/she is not pictured on the card; the procedures for opting into a voluntary photo EBT card policy and documenting that a household voluntarily chose to have a photo on its EBT; and communication plans for educating and notifying clients and retailers of the State's photo EBT card policy.

• Language added to clarify that State agencies shall provide FNS additional information upon request or as may be required by other guidelines established by the Secretary to conduct ongoing evaluations.

• Clarified in preamble that State responsibilities for retailer education on photo EBT cards is limited to the implementation phase. For newly authorized retailers, FNS will update retailer training materials as the agency would for any new requirements affecting SNAP retailer operations.

• Removal of the provision requiring SNAP retailers to ask for identification from SNAP customers using three or more EBT cards at once for purchases and to report that information to the USDA Office of Inspector General (OIG) Fraud Hotline if fraud is suspected.

The Act and SNAP regulations give states the option to require that EBT cards contain a photo of one or more household members. However, implementation involves complex legal, operational, and civil rights considerations; if not well planned, it can inhibit benefit access for eligible participants which could violate federal law.

There have been significant issues with recent attempts to place photos on EBT cards, including confusion at stores where clients have been turned away because of misunderstanding/misapplication of policy; confusion among clients regarding who can use the card in the household because of the photo on the card; and confusion among State workers regarding proper policy for certain cases such as child only cases. As a result, FNS issued guidance to State agencies in December 2014 to provide clear parameters for implementation and ongoing operation of the photo EBT card option. On January 6, 2016, FNS published a proposed rule in the Federal Register (81 FR 398), in which the Agency proposed to amend SNAP regulations at 7 CFR parts 271, 272, 273, 274 and 278 to codify the FNS guidance.

The rule proposed that States submit a comprehensive Implementation Plan to FNS for approval prior to implementing the photo EBT card option, and that the Implementation Plan include certain operational components to ensure State implementation is consistent with all Federal requirements and that program access is not inhibited. Because implementation of the photo EBT card option requires substantial resources, FNS proposed that State agencies also demonstrate that they meet minimum performance standards so FNS could evaluate whether SNAP households receive timely, accurate, and fair service before the State could implement the photo EBT card option. The rule also proposed to clarify that the State option to place photos on EBT cards is a function of issuance and not a condition of eligibility. In addition, the proposed rule included point-of-sale verification provisions to address recently identified violations by retailers and others buying and using multiple cards and Personal Identification Numbers (PINs) to stock their shelves.

FNS solicited comments on the proposed rule for 60 days, ending March 7, 2016. The Agency received 84 comments from various entities, including: 56 advocacy organizations; 11 individuals that identified as SNAP participants; 8 individuals that did not identify with a State agency or organization; 4 grocer associations; 3 State/local government agencies; and 2 Electronic Funds Transfer (EFT) organizations.

The comments FNS received were overwhelmingly supportive of the proposed rule, in general, and, in particular, of the recognition that photo EBT is a function of issuance that cannot impact households' SNAP eligibility. With regards to the photo EBT card implementation and monitoring provisions in the proposed rule, respondents expressed appreciation for the effort taken by FNS to protect SNAP participants' access to benefits, to prevent challenges in photo EBT implementation in the future, and to ensure that Federal reimbursement dollars are not wasted in the administrative costs of implementing a complex State option. Many respondents provided suggestions for strengthening client protections even further and for imposing stricter requirements on State agencies wishing to implement the photo EBT card option, such as requiring additional client exemptions from the photo, establishing a specific level for each performance metric that reflects a State's commitment and ability to provide timely assistance to eligible households, establishing clearer requirements for client and retailer education, and requiring the State agency to seek input from key stakeholders prior to and after implementation.

At the same time, some of the respondents supporting the rule expressed opposition to the general principle of placing photos on EBT cards because they believe it stigmatizes people receiving government assistance, subjects them to unequal and greater scrutiny by store clerks, wastes taxpayer dollars, and is at odds with the rules of the commercial payments world, which EBT is intended to follow. Some respondents also felt that allowing States to withhold benefits is inconsistent with the statutory intent that photo EBT cards are a function of issuance, not certification.

Four respondents expressed overall opposition to the rule, believing that the rule both in form and in effect restricts States' ability to exercise the photo EBT card option and supported, instead, requiring mandatory placement of photos on EBT cards and/or not restricting States' ability to do so. Furthermore, several other respondents expressed significant concerns with the proposed verification and reporting requirements of retailers for customers paying with multiple EBT cards at the point-of-sale.

Because of the strong support for the rule and based on FNS' authority under Section 11 of the Act for monitoring and oversight of SNAP, FNS is largely adopting the proposed rule as a final rule, with some clarifying changes regarding the photo EBT card provisions in response to comments. Also, in response to comments, FNS is eliminating the verification requirement with respect to multiple card usage at the point-of-sale. Below is further discussion of the most illustrative comments FNS received.

Minimum requirements—Several respondents, which included nine advocates and seven clients, requested that FNS not allow a State to commence with photo EBT plans if they cannot process household applications and issue benefits on time. The proposed rule specified that, prior to implementation, State agencies must demonstrate successful administration of SNAP based on SNAP performance standards, including application processing timeliness for both the 7-day expedited processing and the 30-day processing standards. Pursuant to the proposed provision at 7 CFR 274.8(f)(1), which remains unchanged in the final rule, States must demonstrate to FNS successful administration of SNAP based on SNAP performance standards to be eligible to implement the photo EBT card option, including successfully processing household benefits within the required timeframes.

Nine advocacy organizations also wanted FNS to establish specific benchmarks for the performance metrics States must meet in order to implement the photo EBT card option. The respondents suggested it is critical that there be a specific performance level that must be established and maintained for each metric, one that reflects a State's commitment to providing timely assistance to eligible households, and its ability to do so. Respondents also wanted FNS to clarify that the performance metrics will be based on performance and not on improvement in order to best protect SNAP applicants and participants. One respondent suggested that the final rule should require positive performance in each of the three years preceding approval and implementation of the photo EBT system.

While FNS understands advocates' desire for specific thresholds with the intent of being able to readily exclude poor performing States from being allowed to implement the photo EBT card option, FNS has come to the conclusion that such a narrowly defined approach could unduly limit FNS' ability to evaluate a State's overall capacity for properly implementing the photo EBT card option. Instead, FNS believes that assessing the State's overall program performance would result in a more effective and accurate determination of a State's capability to implement a photo EBT card option with minimal adverse impacts to clients. The overall picture would, of course, take into account individual measurements, such as those already established through current FNS policy and the Quality Control (QC) process. The Agency will use many of these same standards, as specified at 7 CFR 274.8(f)(1), to measure State performance levels for the purpose of approving photo EBT card implementation. However, it's possible a State could be meeting such standards and still be performing poorly overall or in other areas not included in current standard measurements. For this reason, it is important for FNS to maintain some flexibility to be able to address situations in which unforeseen performance issues would inhibit proper photo EBT card implementation.

The final rule at 7 CFR 274.8(f)(1) remains unchanged.

Voluntary program—Four advocacy organizations wanted FNS to require States to memorialize any agreement to “opt-in” to a voluntary photo EBT card policy with written documentation signed by the household that makes clear that it understood it had a choice and decided to opt-in. The provisions at 7 CFR 274.8(f)(14)(iii) list general types of information FNS expects in the Implementation Plans, including a description of the card issuance procedures and how the State will obtain photographs. Although FNS is not specifying in regulations how State agencies must meet the requirement to have households opt in rather than opt out of a voluntary photo EBT card policy, FNS is adding, in response to comments, language in 7 CFR 274.8(f)(14)(iii) to require that the Implementation Plan include a description of the proposed procedures for opting into a voluntary photo EBT card policy and documenting that a household voluntarily chose to have a photo on its EBT card. Specifically, States will need to show how the opt-in process will protect clients' right to not have a photo on the card in voluntary programs. 7 CFR 274.8(f)(14)(iii) is changed accordingly.

Serving clients with hardship—Several respondents, including 26 advocacy organizations and 8 clients, wanted FNS to expand the minimum required exemption criteria for mandatory photo EBT programs in the proposed 7 CFR 274.8(f)(4). In particular, many respondents wanted FNS to mandate hardship and “good cause” exemptions to address applicants residing in rural areas, applicants that have a hardship that makes it difficult for them to travel to have their photo taken for the card, applicants with caregiving duties, as well as veterans, applicants with refugee or asylee status and those who face low-literacy barriers. Based on the experiences of the other States with existing photo EBT policies, FNS determined that there is sufficient basis to mandate exemptions for the most vulnerable populations. However, with respect to more general hardship or “good cause” exemptions, FNS has decided to remain consistent with mandatory exemptions required for other areas of the Program. For hardship cases that are not already exempt under State policy, FNS is clarifying at 7 CFR 274.8(f)(5) that State agencies must have a process in place to address such situations on a case-by-case basis. Therefore, in the final rule, FNS is maintaining States' discretion to establish their own hardship exemptions beyond the minimum required exemptions for a mandatory photo EBT program based on State-specific needs and 7 CFR 274.8(f)(4) is adopted as is.

Issuance of the photo EBT card—One advocacy organization wanted FNS to specify that if a household meets expedited criteria, a “photo-less” card must be issued to the entire household without delay. FNS agrees that the proposed language at 7 CFR 274.8(f)(6) does not sufficiently reflect the preamble language to make expedited households exempt from mandatory photo EBT card policies until the next recertification. In other words, States must not issue a photo EBT card to expedited households even if they can do so within 7 days. Therefore, FNS is revising the regulatory language at 7 CFR 274.8(f)(6)(ii) to clarify that States must issue without delay benefits and a card without the photo to households that meet expedited criteria. A nonexempt household member may be required to comply at the next recertification.

One advocacy organization wanted FNS to clarify that States must issue both the benefits and card without delay for expedited households. In line with SNAP regulations at 7 CFR 274.2(b), benefits are not considered available until the State provides the household with an active EBT card and PIN, and benefits have been posted to the household's EBT account and are available for spending. Accordingly, FNS is adding clarifying language at 7 CFR 274.8(f)(6)(iii).

Card replacement fees—Five advocates suggested FNS clarify that State agencies may not charge households a replacement card fee when replacing non-photo EBT cards with photo EBT cards during implementation or for putting additional text on the card related to the use of photo EBT cards. State agencies are currently permitted to charge card replacement fees when a card has been lost, stolen, or damaged and the requirements of 7 CFR 274.6(b) have been met. The issuance of a photo EBT card is not a replacement of a lost, stolen or damaged card, so replacement fees would not apply. However, FNS will clarify in 7 CFR 274.8(f)(6)(vi) that States are prohibited from counting any card issued as part of the implementation of the photo EBT card option against the household with respect to both the card replacement threshold and replacement fees under 7 CFR 274.6(b).

Prorating household benefits—Four advocacy organizations and one individual viewed withholding benefits for noncompliance with a photo EBT card requirement as a violation of the Act since photo EBT cards are a function of issuance, not certification, and, therefore, should not be allowed. One State agency viewed the proration and withholding requirement for mandatory photo EBT cards unduly burdensome, making it impractical to compel compliance. The Act clearly provides States with the option to mandate a photo on EBT cards. FNS has determined that States may enforce a mandatory policy by withholding issuance of the non-complying household member share of benefits only, but not by denying certification or withholding benefits for the entire household.

Household compliance—Sixteen respondents, including advocacy organizations and clients, expressed concern that households be given sufficient time to comply with a photo EBT card requirement. Respondents suggested that FNS consider applying a standard for missed photo appointments similar to the regulatory requirements at 7 CFR 273.2(h)(1)(i)(D), relating to missed interviews, to households that do not comply with the first appointment to get their photograph taken. FNS does not believe that the requirements surrounding missed eligibility interviews are appropriate for the purposes of allowing clients sufficient time to obtain a photo for the EBT card because those requirements do not provide the flexibility that must be part of a State's photo EBT card policy. States must describe the process for obtaining the photos in the Implementation Plan. The language in 7 CFR 274.8(f)(6)(i) requires that the time provided to households to come in to take a photo be sufficient and reasonable, and also specifies that obtaining the photo must not impact processing standards at 7 CFR 273.2(g) and (i). The process should be flexible with multiple opportunities for providing a photo, such as allowing clients to come in on a drop-in basis. If the non-exempt, non-compliant household member does not provide a photo within 30 days of applying, the State must still issue the EBT card and provide a pro-rated amount of benefits for the other exempt, or compliant household members as provided in 7 CFR 274.8(f)(7). When the non-exempt household member comes into compliance with the photo requirement, the household gets the remaining benefits back for all previous months as provided in 7 CFR 274.8(f)(8). As mentioned, expedited households are exempt from the photo EBT card policy until the next recertification. As stated in 7 CFR 274.8(f)(8), withheld benefits are expunged after one year in accordance with 7 CFR 274.2(h)(2). With one year to come into compliance, FNS believes the proposed regulations already protect households from being negatively impacted if circumstances delay the head of household's ability to provide a photo. It is also important to highlight that this only applies to mandatory implementation as voluntary participants cannot be required to be photographed under any circumstance. 7 CFR 274.8(f)(6) remains unchanged with respect to providing households sufficient time to comply with a photo EBT card requirement.

Expungement—One advocacy organization wanted FNS to exempt benefits withheld for noncompliance from expungement until the household becomes compliant. Because it is possible that some households may never come into compliance, FNS does not believe it is practical to require States to hold the benefits and maintain them as a SNAP obligation in perpetuity. FNS continues to believe that one year is sufficient time for the household to come into compliance before the State can start expunging withheld benefits. Furthermore, all withheld benefits cannot be expunged at once. Benefits must be expunged at the allotment level just as they are under the regular expungement process at 7 CFR 274.2(h)(2). Similarly, the noncompliant household member continues to accrue withheld benefits for as long as they are certified. For example, if a certified member of a household does not comply with a mandatory photo policy for 14 months and then becomes compliant, the State must return 12 months of benefits to that household. In other words, when a noncompliant member of a household becomes compliant, that household is entitled to all the benefits withheld in accordance with 7 CFR 274.8(f)(7), up to a maximum of 12 months' worth of benefits.

Therefore, the final rule at 7 CFR 274.8(f)(8) remains unchanged to ensure benefits withheld for noncompliance are treated in accordance with the same timeframe used for handling all expungements under 7 CFR 274.2(h)(2). If the noncompliant member comes into compliance, the non-expired benefits must be issued within two business days of when the client has their photo taken by the State agency. Any action to withhold benefits from issuance is subject to fair hearings in accordance with 7 CFR 273.15.

Household and authorized representative card usage—Two advocacy organizations would like the regulations to be more explicit in giving households the right to permit individuals on an ad hoc basis to use the household's EBT card on the household's behalf to purchase food or meals, whether or not their State has a photo EBT policy. While 7 CFR 273.2(n)(3) and 274.7(a) already allow households to select other persons to use their Program benefits to purchase eligible food, FNS agrees that making this ability more explicit in the photo EBT card regulations would be helpful in ensuring that States do not attempt to place undue burdens on households by requiring a formal authorization process to identify individuals who may help the household purchase food. Current regulations allow any household member or non-member selected by the household to purchase food with the household's EBT card on the household's behalf. These non-members are not required to be formally designated and States shall not require households to provide the State information regarding individuals making purchases permitted by the household on an adhoc basis.

However, clients also need to understand that neither the State nor FNS is responsible for any benefits lost as a result of a client freely giving out the household's PIN to another individual. Therefore, FNS is amending language at 7 CFR 274.8(f)(9) through (11) to similarly specify that individuals permitted by the household to purchase food or meals on their behalf are entitled to use the card.

As it continues to be illegal for anyone to sell, transfer, acquire, receive or possess program benefits for the purpose of defrauding the government or individuals certified to receive benefits, clients are not allowed to give their EBT card and/or PIN to another individual for any other purpose other than to purchase food or meals for the certified household only.

Client and retailer training—Several respondents, including 10 clients, six advocacy organizations and one State agency wanted to ensure that client and retailer training and education materials be written in clear and conspicuous language, with some respondents specifying font, type and reading level. Some respondents also wanted information regarding exemptions, benefits being prorated, the ability for anyone in the household to use the card, etc., added to the minimum information specified in the proposed rule. While FNS shares the respondents' concerns that clients and retailers receive all the necessary information to ensure compliance with SNAP regulations, FNS does not believe such specificity is necessary. Too much information can have the unintended consequence of overwhelming the recipient with the information, hindering both accessibility and understanding of the information. Instead, FNS will assess the clarity in wording and appearance of photo EBT card training and education materials during the overall implementation approval process. Therefore, FNS is leaving the information required for client and retailer training and education materials unchanged in the final rule at 7 CFR 274.8(f)(10) and (11).

Retailer education and responsibilities—Two advocacy organizations and two State agencies opposed the provisions in the proposed rule that would shift responsibility for retailer education and accountability from FNS to the States. They were concerned that the resources and time necessary to perform retailer outreach effectively is beyond the capacity of many State agencies, which already confront limited resources. While it is true that FNS oversees retailer policy and compliance, States implement the photo EBT process at their own option. The Act clearly requires States that choose to do so to be responsible for ensuring that any other appropriate member of the household or authorized representative of the household may utilize the card, which includes ensuring that the State photo EBT policy is understood by all stakeholders. Furthermore, States have been directly involved with retailer participation with respect to equipping retailers with point-of-sale devices, training them on EBT requirements and procedures, and providing customer service on EBT. Therefore, having States be responsible for retailer education with respect to the photo EBT cards is not inconsistent with past or current retailer involvement at the State level and fulfills the Act's requirement.

Three advocacy organizations wanted FNS to specify that States must educate not only current retailers but any new retailers that come into the Program, while respondents, in general, recommended that FNS incorporate guidance on the proper handling and acceptance of photo EBT cards into the initial training materials for newly authorized stores and any refresher training produced for stores. Because of the divergent comments regarding whether or not States should be given retailer education responsibilities, FNS is limiting State responsibilities regarding retailer education responsibilities on photo EBT cards to the implementation phase. For newly authorized retailers, FNS will maintain its current retailer education responsibilities, including updating retailer training materials as the Agency would for any new requirements affecting SNAP retailer operations. As a result, the proposed retailer education and responsibility provisions remain unchanged in the final rule at 7 CFR 274.8(f)(11).

There were several areas where respondents recommended stricter parameters and/or additional or more specific requirements. In many of these instances, FNS believes States should continue to be allowed some discretion, consistent with other areas of the Program. Furthermore, many of the comments involved general concerns with ensuring States make it clear how they would implement certain aspects of the photo EBT card option, as well as make the policies clear to clients. To that end, FNS is specifically including communication plans for educating and notifying clients and retailers to the language at 7 CFR 274.8(f)(14)(iii).

Ultimately, FNS does not believe it would be beneficial to be too specific with regard to each requirement that is included in the Implementation Plan. Comments received on the Implementation Plan provisions at 7 CFR 274.8(f)(14) are summarized as follows:

Demonstrate a genuine problem that will be rectified by the photo on the EBT card—Six advocacy organizations wanted States to be required to prove the cost effectiveness and efficiency of a photo EBT program, and/or demonstrate that the photo EBT policy will remedy a specific problem. FNS believes such a showing is not required and is unduly burdensome on a State.

Stakeholder input—Ten advocacy organizations and one grocer association wanted FNS to require States to seek and include feedback from other stakeholders, such as anti-hunger, client, or related advocacy groups, EBT vendors, and grocer associations, in the Implementation Plan. FNS agrees that it would benefit States to obtain input from organizations that might have further insight into on-the-ground operations and would highly encourage it. While States are not required to collaborate prior to or after implementation of a regulatory requirement, FNS believes obtaining feedback from stakeholder organizations and/or including them in the State's efforts to communicate effectively with clients and retailers is invaluable, and FNS's evaluation of the Implementation Plan will take into consideration any such collaboration that has influenced development of the plan. For example, as part of the communication plan, States should identify any organizations that will be assisting the State with developing and/or distributing materials and information, as well as indicate any collaboration with and input obtained from stakeholders in the development of the communication plan to clients and retailers. As a result, FNS is adding language at 7 CFR 274.8(f)(14)(iii) to indicate that States must include information regarding any stakeholder collaborations in the Implementation Plan as well.

Limited English Proficient (LEP) SNAP clients—Four advocacy organizations wanted Implementation Plans to detail the State's training plan for LEP clients. They also asked that examples of letters and other materials communicating the policy to clients and retailers should include appropriate translations. FNS agrees with the spirit of this recommendation, and notes that the photo EBT card materials and information are subject to the language requirements in 7 CFR 272.4(b) regarding translation and interpretation, and States are prohibited from unlawfully discriminating against any applicants or participants as specified in 7 CFR 272.6(b)(1). In addition, 7 CFR 274.8(f)(14)(v) requires States to demonstrate how the photo EBT card materials comply with civil rights laws. FNS will review States' Implementation Plans to ensure that SNAP recipient training, materials, and information provide meaningful access to LEP individuals and conform to the requirements of Title VI of the Civil Rights Act of 1964. FNS will also obtain translations of all materials that will be used to inform clients, retailers, and other stakeholders. For clarification purposes, FNS is referencing language requirements and civil rights laws at 7 CFR 274.8(f)(14)(iii) and (v), respectively, in the final rule.

Retroactive implementation plans—Two grocer associations and two advocacy organizations wanted FNS to require States with current photo EBT programs to retroactively submit Implementation Plans. FNS is actively involved in ensuring that the current photo EBT card programs are meeting all FNS requirements. FNS believes that the efforts in those States should be focused on correcting any compliance issues rather than developing an implementation plan for a program that is already operating, so FNS will not be requiring those states to submit an Implementation Plan.

Disaster Plan—One grocer association suggested that FNS require States to address the use of photo EBT cards in their disaster plans. FNS strongly encourages States choosing to place photos on EBT cards to plan for and develop procedures for how the State will issue EBT cards in the event of a disaster. FNS is not requiring States to include processes for addressing photo EBT cards in their disaster plans because Section 5(h)(3)(B) of the Food and Nutrition Act gives the Secretary the authority to adjust issuance methods to be consistent with what is practicable under actual conditions in the affected area.

Conditional Approval of Implementation Plan—FNS is also clarifying at 7 CFR 274.8(f)(14)(i) that if a State's Implementation Plan is not sufficient for successful implementation of the photo EBT card option, FNS may issue a denial or an approval subject to conditions.

One advocacy organization specifically requested that FNS expand the data collected as part of the post-implementation assessment and evaluation to include the types of households impacted by the State's photo EBT card policy, not just the numbers or percentages, in order to help identify a group/type of household member that needs to be exempted from the policy. Other respondents more generally suggested that FNS monitor the impact on various groups as part of ongoing monitoring provided for in 7 CFR 274.8(f)(17). FNS notes that many vulnerable groups are already exempt from mandatory photo EBT card policies under 7 CFR 274.8(f)(4). These groups include, at a minimum, the elderly, the disabled, children under 18, homeless households, and victims of domestic violence. States may also establish additional exemptions. Therefore, FNS believes that the value gained from requiring States to obtain data on these groups would not be substantial. As a result, the minimum information required in the post-implementation report remains unchanged in the final rule.

FNS received several comments in response to questions posed in the proposed rule asking how FNS should verify appropriate implementation on an ongoing basis, and whether there is other data that should be required from States on an ongoing basis and how frequently States should be required to report. Respondents suggested several areas for ongoing monitoring such as tracking the impact of photo EBT policies on LEP households, the elderly, individuals with disabilities, and non-applicant heads of households; tracking client complaints; seeking advocate feedback on an ongoing basis; and periodically surveying stores after implementation to validate that the photo EBT requirements are understood. Respondents also suggested annual reporting and more frequent reporting during the first year of photo EBT operations. While FNS understands the desire for more detailed data, unfortunately, such data are not readily available to the States or reliable because they are not collected in any systematic way.

Nine advocacy organizations wanted FNS to stipulate that any State agency which decides to implement the photo EBT card option must continue to meet metrics set forth by the Department or suspend photo EBT. The proposed provisions at 7 CFR 274.8(f)(17)-(18) stipulate that FNS would continue to monitor and evaluate the operation of the photo EBT card option and, should there be problems with the State's implementation, FNS may require corrective action by the State. If that were to fail, FNS would consider other possible actions, including suspension of the States' photo EBT policy. As with all SNAP statutory, regulatory, and policy provisions, FNS has established processes for ensuring States are meeting SNAP requirements, such as through the Management Evaluation (ME) reviews. FNS intends to follow these same processes with respect to the photo EBT card option. Should FNS find that a State is not meeting any of the SNAP performance standards after implementation, the State's photo EBT card policy would be examined to determine its impact on any deficiencies found and whether the photo EBT card policy and implementation should be included in the appropriate actions to remedy the situation.

Two advocacy organizations suggested FNS classify any adoption of photo EBT cards as a major systems change so that it automatically requires the State to collect the data specified at 7 CFR 272.15. Conversely, two individual respondents and one State agency expressed concern that the proposed reporting requirements were excessively burdensome to State agencies and that the rule provided seemingly unbounded discretion to the Secretary for ongoing monitoring.

FNS appreciates the thoughtful feedback respondents provided. Although Section 11 of the Act provides the Secretary with broad authority for the monitoring and oversight of SNAP, FNS understands that some specific parameters with regard to ongoing monitoring of the photo EBT option would be helpful for all stakeholders involved. FNS has determined that more specific requirements would be best addressed through separate guidance to allow for flexibility. With respect to classifying the photo EBT card option as a major change, FNS determined prior to publishing the Major Change rule (81 FR 2725 (January 19, 2016)) that it would not be the appropriate process for implementing photo EBT card operating standards because major changes, as defined in the rule, specifically relate to SNAP certification processes, and how process or technology changes impact the ability of SNAP applicants and participants to interact with the State agency or be certified for benefits. The photo EBT card option is a function of issuance, not certification, and therefore, cannot impact whether or not a household is eligible for SNAP participation.

As with comments received regarding the Implementation Plan requirements and performance standards, FNS will consider comments on the proposed rule regarding ongoing monitoring in the development of any criteria or further guidance for evaluating States' photo EBT card policies on an ongoing basis. The final rule clarifies at 7 CFR 274.8(f)(17) that State agencies will be required to provide FNS additional information upon request to conduct ongoing evaluations.

In response to FNS' specific question seeking comments on whether a State should be required to stop or suspend placing photos on EBT cards if the State agency fails to establish procedures to ensure that all members of the household or any authorized representatives are able to use the card, four advocacy organizations supported FNS taking action to suspend a State's Photo EBT card policy. One respondent urged FNS to establish and enforce a penalty that is real and meaningful when States ignore or defy Federal enforcement, and to render a State ineligible to continue its photo EBT card policy if it is found to have a negative impact on a State's ability to process SNAP applications and issue benefits in a timely manner. Another respondent suggested that review of the photo EBT card policies be added as a part of the State Agency Management Evaluation (ME).

In the absence of a concrete alternative process for assessing and imposing penalties for noncompliance with the photo EBT card requirements or for other deficiencies that may be the result of the State's photo EBT card policy, FNS will continue to follow existing procedures for evaluating and addressing situations when a State agency is not meeting standards contained in the Act, regulations, and/or the State Plan of Operation, including procedures for ME reviews, corrective actions, and suspension/disallowance of federal administrative funding. As a result, the final rule remains unchanged with regard to State noncompliance and penalties.

In the proposed rule, FNS posed other specific questions for comment. These questions involved whether there are concerns with posting approved Implementation Plans on the FNS public Web site, whether there was a potential benefit for allowing non-applicants to have their photograph taken under a voluntary implementation, and whether stakeholders believe “testers” to be a worthwhile method for verifying appropriate implementation at authorized retailer locations. Ten advocacy organizations and two State agencies agreed with the rationale that approved Implementation Plans are public information and should be posted on the FNS Web site, and with prohibiting the taking of photos of non-applicants under a voluntary photo EBT card policy as proposed in 7 CFR 274.8(f)(3)(iii). One commenter suggested photographs of non-applicants be allowed only on alternate cards, where an alternate card is required by the state agency or requested by the household to be issued to a person who is not a member of the SNAP household. With regard to “testers,” respondents, in general, including six advocacy organizations, two grocers associations, one electronic funds association and one State agency, supported using the method to determine if any barriers have been created due to a State's photo EBT card policy. However, the two grocers associations felt that the method should be used only if retailers were not subjected to any penalties for a poor outcome, while the State agency suggested the method be a State option, given the administrative costs involved, and only if retailers faced sanctions for failing to adhere to State or Federal policies.

Based on the above comments, FNS will not require States to use “testers” to verify proper implementation of photo EBT card policies at retailer locations. However, FNS encourages States to consider such a method when developing their overall strategies to ensure benefit access is not being held up or denied in the checkout lines. Therefore, the final rule remains unchanged with respect to posting approved Implementation Plans and prohibiting States from placing non-applicant photos on EBT cards. With respect to “testers”, FNS is adding language at 7 CFR 274.8(f)(16)(i)(B) as an option for monitoring retailer compliance.

Card Text—Twenty-two respondents, including 10 advocacy organizations, eight clients, two grocers associations, one individual, and one State agency, commented with respect to the proposed requirement at 7 CFR 274.8(b)(5)(ii) that States with photo EBT cards add text to all of the State's EBT cards informing retailers and clients that all household members and authorized representatives, including individuals permitted by the household to purchase food or meals on its behalf, are allowed to use the EBT card even if their photo is not on the card or no photo is on the card. All respondents supported the requirements, but some wanted FNS to mandate specific wording to be placed on the cards rather than allow States to develop alternative language. Through the Implementation Plan approval process, FNS will look closely at the wording States intend to place on the cards to ensure that it is clear and conveys the appropriate information. Because the wording may be impacted by the space available on the card or may evolve over time based on subsequent State experiences, FNS is maintaining State discretion to propose their own text to place on EBT cards in the final rule. However, FNS will add language at 7 CFR 274.8(f)(14)(iii) to specify that the Implementation Plan must also include the text required by 7 CFR 274.8(b)(5)(ii).

Respondents also asked FNS to require States to place a 24-hour toll-free emergency number for retailers to call with questions about photo EBT requirements as well as a number for clients to call if they are being denied the right to use the household photo EBT card. In addition, respondents suggested requiring a Web site on the card where retailers and clients could go for information on the State's photo EBT card policy. All States already have toll-free customer service numbers for both clients and retailers, some of which operate 24 hours. Many States also have or plan to have EBT client Web sites. Furthermore, these toll-free numbers and Web sites are already on many of the State's EBT cards. Again, FNS believes States should continue to have the same discretion in this area as they do for addressing all other EBT customer service issues. However, FNS will review photo EBT card Implementation Plans to ensure States will have a process in place for clients and retailers to get their issues related to the photo EBT program addressed as well as to ensure that clients and retailers are informed of this process.

Using multiple cards for SNAP purchases—In an attempt to address the existence of violating retailers and others buying and using multiple cards and PINs to stock their shelves, the proposed rule included a provision at 7 CFR 272.8(h) to require SNAP retailers to ask for identification from SNAP customers using three or more EBT cards at once for purchases and to report that information to the USDA OIG Fraud Hotline if fraud is suspected. Many concerns with this proposed policy were raised by the three grocers associations, one State agency and one advocacy organization. FNS agrees with respondents' concerns that such a requirement would present significant challenges for SNAP retailers for a variety of reasons. In particular, FNS agrees with a respondent's comment that it would not be prudent to require clerks, who are sometimes as young as 16 years old, to enter into what could potentially be a confrontational situation with a customer.

Alternatively, one respondent suggested that multiple card use not be allowed for a single transaction or by an individual for multiple transactions. Other respondents commented that there are circumstances where an individual could be using multiple EBT cards to legally purchase food for SNAP recipients and a limitation on the number of cards an individual may use at one time may create access issues for some recipients. Based on the comments received, FNS is removing this provision in the final rule and will consider prohibiting the use of multiple cards for future rulemaking. Although customers may use multiple EBT cards at the point of sale, retailers should continue to report any suspicious activity to the USDA OIG Fraud Hotline. The final rule is modified accordingly at 7 CFR 278.2(h).

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, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated significant. Accordingly, the rule has been reviewed by the Office of Management and Budget. A summary of the regulatory impact analysis is included below. The full analysis is available through www.regulations.gov in the docket for this rule (FNS-2016-0003).

As required for all rules that have been designated as Significant by the Office of Management and Budget, a Regulatory Impact Analysis (RIA) was developed for this final rule. The full RIA is included in the supporting documents of the rule docket at www.regulations.gov. The following summarizes the conclusions of the regulatory impact analysis.

Need for Action: This final rule would incorporate into regulation and expand on guidance that was issued December 29, 2014 to certain State agencies. Based on observed implementation to date, there is cause for concern about possible negative impacts of photo EBT programs on client access and civil rights, both as programs are first implemented and over time. This guidance requires States that intend to implement the photo EBT card option to submit a comprehensive Implementation Plan for FNS approval that addresses key operational issues to ensure State implementation complies with all Federal requirements and that program access is protected for participating households. In this final rule, the Department clarifies that the State option to place a photo on an EBT card is a function of issuance. Pursuant to this, State agencies are prohibited from having photo EBT requirements that affect the eligibility process. This includes ensuring that the photo EBT option is implemented in a manner that does not impose additional conditions of eligibility or adversely impact the ability of eligible Americans to access the nutrition assistance they need.

Benefits: The Department believes the provisions in this final rule provide qualitative benefits to State agencies, SNAP participants, and authorized retailers. The Act and existing program regulations provide that States that implement a photo on the EBT card must establish procedures to ensure that any other appropriate member of the household or any authorized representative of the household may use the card. This final rule provides clear parameters for States wishing to implement photo EBT to ensure that State implementation is consistent with all Federal requirements and that program access is protected for participating households, which safeguard the rights of clients, provide training to staff, clients, and retailers, and improve program administration.

Costs: States choosing the photo EBT option may incur additional administrative costs, which may vary based on the size and scope of the State's operations and whether implementation of the photo EBT card option is mandatory or voluntary. Regardless of whether the option is mandatory or voluntary, all States that implement photo EBT cards will incur certain implementation costs to include: Preparing an Implementation Plan; communications and training for program staff, clients, and retailers; ongoing training costs to maintain an understanding of photo EBT card policies; programming costs for mandatory policies; and costs for the post implementation assessment, evaluation and on-going monitoring. States with a mandatory photo EBT policy will also incur costs associated with prorating and storing benefits for noncompliant household members that choose not to be photographed. The Department estimates the total cost to be approximately $9.3 million, shared 50/50 by the State and the Federal government, over five years, assuming six States choose to implement a mandatory photo EBT card policy. Costs would be lower if some or all of these States choose to implement voluntary, rather than mandatory, photo EBT card policies. The estimate of six States is based on information from State legislatures that are either currently considering or discussing the possibility of considering such a policy. Given the projected timelines for these legislative actions, the Department assumes that the costs of implementing a photo EBT card policy will be phased in over a five year period, as all six States are unlikely to approve and implement the policy in the same year. The States that have already implemented photo EBT as a State option will not be required to retroactively submit Implementation Plans, but may continue to incur minimal costs associated with ongoing training and monitoring required for program staff, clients, and retailers.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, the Administrator of FNS certifies that this final rule would not have a significant impact on a substantial number of small entities. This final rule primarily impacts State agencies. As part of the requirements, State agencies would have to educate retailers about the photo EBT card. There will not be a substantial impact on small entities such as small retailers since the treatment of clients with EBT cards and photo EBT cards do not vary. Minimal changes will be required of retailers. Retailers will need to be aware that some clients may present photo EBT cards but clients shall not be treated any differently. This is not expected to create a burden on retailers.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or Tribal governments, in the aggregate, or the private sector, of $146 million or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 at http://www.bea.gov/iTable) in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule. This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $146 million or more in any one year. Thus, the final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the Final Rule codified in 7 CFR part 3015, subpart V and related Notice (48 FR 29115), this Program is excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132, requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121.

The Department has determined that this rule does not have Federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a Federalism summary impact statement is not required.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This is intended to have retroactive effect in that State agencies that have already implemented a photo EBT card must meet all requirements of this final rule except the requirement to submit an Implementation Plan prior to State's planned implementation date. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

On February 18, 2015, the Food and Nutrition Service held an information session. During the information session, no comments were received on the proposal. Reports from these sessions are part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA offers these and similar opportunities, such as webinars and teleconferences, for collaborative conversations with Tribal leaders and their representatives concerning ways to improve rules with regard to their effect on Indian country on a quarterly basis as part of its yearly Tribal information sharing schedule.

The Food and Nutrition Service has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implication that require tribal consultation under EO 13175. If a Tribe requests consultation, the Food and Nutrition Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

FNS has reviewed this final rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of religion, age, race, color, national origin, sex, political beliefs, or disability. After a careful review of the rule's intent and provisions and understanding the intent of this rule is to in part to protect the civil rights of clients, FNS has determined that this rule is not expected to adversely affect the participation of protected individuals in the Supplemental Nutrition Assistance Program. Discrimination in any aspect of the Program administration is prohibited by these regulations, according to the Act. Enforcement may be brought under any applicable Federal law. Title VI complaints shall be processed in accord with 7 CFR part 15. Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with the regulations at 7 CFR 272.6.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number.

In accordance with PRA, this final rule does not contain information collections that are subject to review and approval by OMB.

This rule requires State agencies to submit to FNS an Implementation Plan, a post implementation evaluation of the photo EBT implementation, and related ongoing measures. As the PRA requirements are applicable to collection of information from ten or more respondents, there are no information collection requirements that are subject to OMB review at this time. Should the number of estimated respondents reach ten or more, FNS will publish a notice for comment and submit the applicable requirements to OMB for review and approval.

The Food and Nutrition Service 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.

Accordingly, 7 CFR parts 271, 272, 273, 274, 278 are amended as follows:

Background

On January 5, 2016, DAHER-SOCATA (SOCATA) applied for FAA validation for the optional installation of a four-point safety belt restraint system for the pilot and copilot seats and incorporating integrated inflatable airbags for both on the Model TBM 700 airplane. The Model TBM 700 airplane is a single-engine powering a four bladed turbopropellor. It has a maximum takeoff weight of 6578 pounds (2984 kg). In addition to a pilot and copilot, it can seat up to five passengers.

The inflatable restraint systems are four-point safety belt restraint systems consisting of a lap belt and shoulder harness with an inflatable airbag attached to the shoulder harness straps. The inflatable portion of the restraint system will rely on sensors electronically activating the inflator for deployment.

If an emergency landing occurs, the airbags will inflate and provide a protective cushion between the head of the occupant (pilot and copilot) and the structure of the airplane. This will reduce the potential for head and torso injury. The inflatable restraint behaves in a manner similar to an automotive airbag; however, the airbag is integrated into the shoulder harness straps. Airbags and inflatable restraints are standard in the automotive industry; the use of an inflatable restraint system is novel for general aviation.

The FAA has determined that this project will be accomplished on the basis of providing the same level of safety as the current certification requirements of airplane occupant restraint systems. The FAA has the following two primary safety concerns with the installation of airbags or inflatable restraints that—

1. They perform properly under foreseeable operating conditions; and

2. They do not perform in a manner or at such times as to impede the pilot's ability to maintain control of the airplane or constitute a hazard to the airplane or occupants.

The latter point has the potential to be the more rigorous of the requirements. An unexpected deployment while conducting the takeoff or landing phases of flight may result in an unsafe condition. The unexpected deployment may either startle the pilot or generate a force sufficient to cause a sudden movement of the control yoke. Both actions may result in a loss of control of the airplane. The consequences are magnified due to the low operating altitudes during these phases of flight. The FAA has considered this when establishing these special conditions.

The inflatable restraint system relies on sensors to electronically activate the inflator for deployment. These sensors could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of an inadvertent deployment must be considered in establishing the reliability of the system. SOCATA must show that the effects of an inadvertent deployment in flight are not a hazard to the airplane and that an inadvertent deployment is extremely improbable. In addition, general aviation aircraft are susceptible to a large amount of cumulative wear and tear on a restraint system. The potential for inadvertent deployment may increase as a result of this cumulative damage. Therefore, the impact of wear and tear resulting with an inadvertent deployment must be considered. The effect of this cumulative damage means duration of life expectations must be established for the appropriate system components in the restraint system design.

There are additional factors to be considered to minimize the chances of inadvertent deployment. General aviation airplanes are exposed to a unique operating environment, since the same airplane may be used by both experienced and student pilots. The effect of this environment on inadvertent deployment must be understood. Therefore, qualification testing of the firing hardware and software must consider the following—

1. The airplane vibration levels appropriate for a general aviation airplane; and

2. The inertial loads that result from typical flight or ground maneuvers, including gusts and hard landings.

Any tendency for the firing mechanism to activate as a result of these loads or acceleration levels is unacceptable.

Other influences on inadvertent deployment include High-Intensity Radiated Fields (HIRF) and lightning. Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. To comply with HIRF and lightning requirements, the inflatable restraint system is considered a critical system, since its inadvertent deployment could have a hazardous effect on the airplane.

Given the level of safety of the occupant restraints currently installed, the inflatable restraint system must show that it will offer an equivalent level of protection for an emergency landing. If an inadvertent deployment occurs, the restraint must still be at least as strong as a Technical Standard Order approved belt and shoulder harnesses. There is no requirement for the inflatable portion of the restraint to offer protection during multiple impacts, where more than one impact would require protection.

Where installed, the inflatable restraint system must deploy and provide protection for each occupant under an emergency landing condition. The Model TBM 700 airplane seats are certificated to the structural requirements of § 23.562; therefore, the test emergency landing pulses identified in § 23.562 must be used to satisfy this requirement.

A wide range of occupants may use the inflatable restraint; therefore, the protection offered by this restraint should be effective for occupants that range from the fifth percentile female to the ninety-fifth percentile male. Energy absorption must be performed in a consistent manner for this occupant range.

In support of this operational capability, there must be a means to verify the integrity of this system before each flight. SOCATA may establish inspection intervals where they have demonstrated the system to be reliable between these intervals.

An inflatable restraint may be armed even though no occupant is using the seat. While there will be means to verify the integrity of the system before flight, it is also prudent to require unoccupied seats with active restraints not pose a hazard to any occupant. This will protect any individual performing maintenance inside the cockpit while the aircraft is on the ground. The restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system.

The design must also prevent the inflatable seatbelt from being incorrectly buckled or installed to avoid hindering proper deployment of the airbag. SOCATA may show that such deployment is not hazardous to the occupant and will still provide the required protection.

The cabins of the SOCATA, Model TBM 700 airplane identified in these special conditions are confined areas, and the FAA is concerned that noxious gasses may accumulate if the airbag deploys. When deployment occurs, either by design or inadvertently, there must not be a release of hazardous quantities of gas or particulate matter into the cockpit.

An inflatable restraint should not increase the risk already associated with fire. The inflatable restraint should be protected from the effects of fire to avoid creating an additional hazard such as, a rupture of the inflator, for example.

Finally, the airbag is likely to have a large volume displacement, and possibly impede the egress of an occupant. Since the bag deflates to absorb energy, it is likely that the inflatable restraint would be deflated at the time an occupant would attempt egress. However, it is appropriate to specify a time interval after which the inflatable restraint may not impede rapid egress. Ten seconds has been chosen as reasonable time. This time limit offers a level of protection throughout an impact event.

Under the provisions of 14 CFR 21.17, SOCATA must show that the Model TBM 700 airplane continues to meet the applicable provisions of the applicable regulations in effect on the date of application for the type certificate. The regulations incorporated by reference in the type certificate are commonly referred to as the original type certification basis.

The certification basis also includes all exemptions, if any; equivalent level of safety findings, if any; and special conditions not relevant to the special conditions adopted by this rulemaking action.

If the Administrator determines that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the inflatable restraint, as installed on the SOCATA, Model TBM 700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model TBM 700 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the Noise Control Act of 1972.

The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.17(a)(2).

Special conditions are initially applicable to the models for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.

The SOCATA, Model TBM 700 airplane will incorporate the following novel or unusual design feature:

Installation of inflatable four-point restraint safety belt with an integrated airbag device for the pilot and copilot seats.

The purpose of the airbag is to reduce the potential for injury in the event of an accident. In a severe impact, an airbag will deploy from the shoulder harness in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and airplane interior structure, which will provide some protection to the head of the occupant. The restraint will rely on sensors to electronically activate the inflator for deployment.

The Code of Federal Regulations states performance criteria for seats and restraints in an objective manner. However, none of these criteria are adequate to address the specific issues raised concerning inflatable restraints. Therefore, the FAA has determined that in addition to the requirements of part 21 and part 23, special conditions are needed to address the installation of this inflatable restraint.

Accordingly, these special conditions are adopted for the SOCATA, Model TBM 700 airplanes equipped with four-point inflatable restraints. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

Final special conditions number 23-276-SC 1 for the DAHER-SOCATA, Model TBM 700 airplanes and requesting comments was published in the Federal Register on September 30, 2016 (81 FR 67093). One comment was received that compared restraint safety to that of an automobile and stressed the importance considering airbag safety, the possibility of injuring or killing occupants during deployment and considerations for occupant safety for a range of occupants.

Aircraft accidents differ from car accidents in that they typically involve much higher speeds and also introduce a vertical impact component. The aviation regulations require an assessment of occupant safety in the horizontal and vertical planes. An airbag is normally triggered, deployed, and effective only in the horizontal plane. The special condition requires assessment for 5th percentile females to 95th percentile males. As such, very large and very small occupants are not considered in this special condition, but this is consistent with other FAA occupant safety rules.

Aircraft airbags, or inflatable restraints, (including the airbags subject to this special condition) are fundamentally different in their operation in comparison to automotive airbags. Automotive airbags normally deploy from the dashboard or steering wheel and push against the rigid structure as they powerfully deploy and engage the occupant. Inflatable restraints have the airbag deploy from the restraint and push away from the occupant and do not press on the occupant until the occupant, with significant inertia, is moving forward and impacting the interior. Smaller occupants, normally those killed by automotive airbags, are not as likely to engage the aircraft inflatable restraints against the interior.

There are no known fatalities or significant injuries from aircraft inflatable restraints that are attributable only to the airbag deployment itself. By nature, the inflatable restraints move away from the occupant, so injury to the occupant from deployment is very unlikely. Smaller occupants and children are still recommended to ride in aft seating, like in an automobile. These special conditions do consider and peripherally address a range of occupant sizes consistent with part 23 occupant safety rules.

This special condition does address the potential hazards commented upon, and the safety and effectiveness of the airbag system with consideration to a range of occupant sizes. No changes were made as a result of this comment, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the SOCATA, Model TBM 700 airplane. Should SOCATA apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the certification date for the SOCATA, Model TBM 700 airplane is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

The FAA has determined that this project will be accomplished on the basis of not lowering the current level of safety of the SOCATA, Model TBM 700 airplane occupant restraint systems. Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the SOCATA, Model TBM 700 airplane.

a. It must be shown that the inflatable restraint will deploy and provide protection under emergency landing conditions. Compliance will be demonstrated using the dynamic test condition specified in § 23.562(b)(2). It is not necessary to account for floor warpage, as required by § 23.562(b)(3), or vertical dynamic loads, as required by § 23.562(b)(1). The means of protection must take into consideration a range of stature from a 5th percentile female to a 95th percentile male. The inflatable restraint must provide a consistent approach to energy absorption throughout that range.

b. The inflatable restraint must provide adequate protection for the occupant. In addition, unoccupied seats that have an active restraint must not constitute a hazard to any occupant.

c. The design must prevent the inflatable restraint from being incorrectly buckled and incorrectly installed, such that the airbag would not properly deploy. It must be shown that such deployment is not hazardous to the occupant and will provide the required protection.

d. It must be shown that the inflatable restraint system is not susceptible to inadvertent deployment as a result of wear and tear or the inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings) that are likely to be experienced in service.

e. It must be extremely improbable for an inadvertent deployment of the restraint system to occur, or an inadvertent deployment must not impede the pilot's ability to maintain control of the airplane or cause an unsafe condition or hazard to the airplane. In addition, a deployed inflatable restraint must be at least as strong as a Technical Standard Order, TSO-C114, certificated belt and shoulder harness.

f. It must be shown that deployment of the inflatable restraint system is not hazardous to the occupant or will not result in injuries that could impede rapid egress. This assessment should include occupants whose restraint is loosely fastened.

g. It must be shown that an inadvertent deployment that could cause injury to a standing or sitting person is improbable. In addition, the restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system.

h. It must be shown that the inflatable restraint will not impede rapid egress of the occupants 10 seconds after its deployment.

i. To comply with HIRF and lightning requirements, the inflatable restraint system is considered a critical system since its deployment could have a hazardous effect on the airplane.

j. It must be shown that the inflatable restraints will not release hazardous quantities of gas or particulate matter into the cabin.

k. The inflatable restraint system installation must be protected from the effects of fire such that no hazard to occupants will result.

l. There must be a means to verify the integrity of the inflatable restraint activation system before each flight or it must be demonstrated to reliably operate between inspection intervals.

m. A life limit must be established for appropriate system components.

n. Qualification testing of the internal firing mechanism must be performed at vibration levels appropriate for a general aviation airplane.

On September 22, 2016, USTR published a proposed rule to add subparts A and D to part 2004. See 81 FR 65309. The 60-day comment period ended on November 21, 2016. USTR did not receive any comments. We have made one non-substantive change to the proposed rule. In subpart A, which contain definitions used throughout part 2004, we added a new term—“OGIS”—which means the Office of Government Information Services of the National Archives and Records Administration. OGIS, offers FOIA dispute resolution services. For convenience, the entire text of the final rule is set out below.

USTR has considered the impact of the final rule and determined that it is not likely to have a significant economic impact on a substantial number of small business entities because it is applicable only to USTR's internal operations and legal obligations. See 5 U.S.C. 601 et seq.

The final rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

In the Federal Register of August 31, 2016 (81 FR 60169), FDA published the final rule “Requirements for Foreign and Domestic Establishment Registration and Listing for Human Drugs, Including Drugs That Are Regulated Under a Biologics License Application, and Animal Drugs.” The final rule published with an incorrect statement in the preamble about the rule's effect on establishments at which investigational drugs are manufactured. Under the amended regulations, manufacturers, repackers, relabelers, or salvagers who manufacture, repack, relabel, or salvage drugs solely for use in research, teaching, or chemical analysis and not for sale are exempt from the establishment registration requirement under 21 CFR 207.13(e) if they do not engage in other activities that require them to register.

In the Federal Register of August 31, 2016, in FR Doc. 2016-20471, the following correction is made: On page 60185, in the first column, in the third paragraph under “2. When must initial registration information be provided? (§ 207.21),” the following sentence is removed: “Accordingly, an establishment at which an investigational drug is manufactured is subject to the establishment registration requirement.”

Paperwork Reduction Act

The collection of information contained in these final regulations has been previously reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1191. The estimated average annual recordkeeping burden per recordkeeper is 10 hours. The estimated reporting burden is being reported under Form 5472 (OMB #1545-0123).

The collection of information in these final regulations is in §§ 1.6038A-2 and 1.6038A-3. This information will enhance the United States' compliance with international standards of transparency and exchange of information for tax purposes and will strengthen the enforcement of U.S. tax laws. The likely respondents are foreign-owned domestic entities that are disregarded as separate from their owners.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

On May 10, 2016, the Department of the Treasury (Treasury Department) and the Internal Revenue Service (IRS) published in the Federal Register a notice of proposed rulemaking (REG-127199-15; 81 FR 28784) under sections 6038A and 7701 (the proposed regulations). The proposed regulations would treat a domestic disregarded entity wholly owned by a foreign person as a domestic corporation separate from its owner for the limited purposes of the reporting, record maintenance and associated compliance requirements that apply to 25 percent foreign-owned domestic corporations under section 6038A of the Internal Revenue Code. The proposed regulations would have applied to taxable years of the entities described in § 301.7701-2(c)(2)(vi) ending on or after the date that is 12 months after the date of publication of the Treasury decision adopting the proposed rules as final regulations in the Federal Register.

In addition to generally soliciting comments on all aspects of the proposed rules, the preamble to the proposed regulations specifically requested comments on possible alternative methods for reporting a domestic disregarded entity's transactions in cases in which the foreign owner of the domestic disregarded entity already has an obligation to report the income resulting from those transactions—for example, transactions resulting in income effectively connected with the conduct of a U.S. trade or business.

No written comments on the proposed regulations were received, and no public hearing was requested or held. However, these final regulations reflect a limited number of changes by the Treasury Department and the IRS to the proposed regulations.

First, it was and remains the intent of the Treasury Department and the IRS that the generally applicable exceptions to the requirements of section 6038A should not apply to a domestic disregarded entity that is wholly owned by a foreign person. Accordingly, the proposed regulations provided that the exceptions to the record maintenance requirements in § 1.6038A-1(h) and (i) for small corporations and de minimis transactions would not apply to these entities. The proposed regulations did not address the additional exception provided in § 1.6038A-2(e)(3), under which a reporting corporation is not required to file Form 5472, Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business (Under Sections 6038A and 6038C of the Internal Revenue Code), with respect to a related foreign corporation when a U.S. person that controls the related foreign corporation files a Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations, containing required information with respect to reportable transactions between the reporting corporation and the related foreign corporation for the taxable year. Similarly, the proposed regulations did not address the additional exception provided in § 1.6038A-2(e)(4), under which a reporting corporation is not required to file Form 5472 with respect to a related foreign corporation that qualifies as a foreign sales corporation for a taxable year for which the foreign sales corporation files Form 1120-FSC, U.S. Income Tax Return of a Foreign Sales Corporation. Upon final consideration of the proposed regulations, the Treasury Department and the IRS have concluded that, consistent with the scope and intent of the proposed regulations, the reporting requirements of the proposed regulations should apply without regard to the exceptions generally applicable under § 1.6038A-2(e)(3) and (4). The exceptions in § 1.6038A-2(e)(3) and (4) are revised accordingly in the final regulations.

Second, to facilitate entities' compliance with the requirements of section 6038A, including the obligation of reporting corporations to file Form 5472, the final regulations provide that these entities have the same taxable year as their foreign owner if the foreign owner has a U.S. return filing obligation. If the foreign owner has no U.S. return filing obligation, then for ease of tax administration, the final regulations provide that the taxable year of these entities is the calendar year unless otherwise provided in forms, instructions, or published guidance.

Third, the Treasury Department and the IRS have concluded that for ease of administration, these regulations should apply to taxable years of entities beginning on or after January 1, 2017, and ending on or after December 13, 2017. The proposed regulations would have applied to taxable years ending on or after the date that is 12 months after the date of publication of the final regulations in the Federal Register, without regard to the date on which the taxable year began. This Treasury decision adopts the proposed regulations as so amended and with other minor clarifications for readability.

Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. This certification is based on the fact that these regulations will primarily affect a small number of foreign-owned domestic entities that do not themselves otherwise have a U.S. return filing requirement, and that the requirement to file a return for these entities will not impose a significant burden on them. Pursuant to section 7805(f), the proposed regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small entities.

The principal author of these regulations is Ronald M. Gootzeit, Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR parts 1 and 301 are amended as follows:

I. Purpose of the Regulatory Action

The purpose of this final rule is to provide for the enforcement of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d, et seq.), as it applies to programs or activities receiving assistance from the Department of the Treasury. Specifically, the statute states that “[n]o person in the United States shall, on the grounds of race, color, or national origin be denied participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity that receives federal financial assistance.” 42 U.S.C. 2000d. Each federal agency subject to Title VI is required to issue regulations implementing Title VI. 28 CFR 42.403. The Department of the Treasury is issuing Title VI regulations for the first time. Under Treasury's Title VI implementing regulations, Treasury-funded programs are prohibited from taking acts, including permitting actions, that discriminate based on the statutorily protected classes. The regulations further provide for Treasury procedures to ensure compliance, including a hearing procedure.

Prior to this rule, the Department was requiring recipients of financial assistance to sign assurances of compliance with Title VI. With the issuance of this final rule, the Department will continue to require assurance of compliance and strengthen its civil rights compliance requirements.

On July 13, 2015, at 80 FR 39977, Treasury published its proposed rule implementing Title VI. Each federal agency subject to Title VI is required to issue regulations implementing Title VI. 42 U.S.C. 2000d to 2000d-7; 28 CFR 42.403. The comment period for the proposed rule ended on September 11, 2015.

The public posted six comments to the Notice of Proposed Rulemaking implementing Title VI. Three comments were from public interest groups. One comment was from a city government office. Two individuals also commented, but one of the comments was nonresponsive. All public comments can be viewed at http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;dct=PS%252BPR;D=TREAS-DO-2015-0006.

The comments can be grouped in two main subjects: Data collection and coverage of Low Income Housing Credits (LIHTCs).

Comment: A commenter disagreed with the collection of the ethnicity of the taxpayers receiving tax preparation services through Volunteer Income Tax Assistance (VITA), stating that the information will not help prove or disprove discrimination. The commenter opined that the best data are gained from the feedback received from bureau employees and from the taxpayers who report having issues at a VITA site. The commenter favors the current compliance practices (displaying a poster, providing information about where to file a complaint, and unannounced site visits) as a far better method for monitoring compliance with nondiscrimination regulations.

Treasury Response: Treasury agrees that the practices in place are useful, and they will continue under the final rule. Treasury disagrees with this commenter's view on data collection, however, because it is required for the appropriate enforcement of Title VI. The coordination regulations issued by the Department of Justice (DOJ) under the authority of Executive Order 12250 require agencies to “provide for the collection of data and information from applicants for and recipients of federal assistance sufficient to permit the effective enforcement of Title VI.” 28 CFR 42.406(a). Collecting information about the race and ethnicity of program beneficiaries will help the Department ensure its programs that offer financial assistance are providing equal opportunity to the eligible beneficiaries, regardless of their race and national origin. The data will also allow the Department to investigate discrimination complaints alleging a violation of Title VI adequately.

Comment: A commenter suggests the grantees should have to supplement local data and/or common knowledge regarding the actual neighborhoods that exist within each program jurisdiction, to enhance the utility of the information required to be maintained for assessing the success of Title VI enforcement.

Treasury Response: The Department plans to issue guidelines regarding data collection in accordance with the requirements in 28 CFR 42.406. The Department will collect data sufficient for the effective enforcement of Title VI. The government-wide coordination regulations state that where an agency determines that the collection of additional data, such as demographic maps, the racial composition of affected neighborhoods, or census data, is necessary or appropriate, the agency shall specify, in its guidelines or in other directives, the need to submit such data. The Department can collect such additional data only to the extent that it is readily available or can be compiled with reasonable effort.

Comment: A commenter recommends as a way to minimize the burden of complying with the proposed information collection, Treasury implement a standard form for reporting compliance to agency officials (referencing § 22.6 of the proposed rule that obligates recipients to submit compliance reports). A standard form will also promote consistency and appropriate enforcement of Title VI by the Department's components.

Treasury Response: Treasury agrees that a standard form for reporting compliance information will assist its recipients and promote consistency across the Department's components. The Department will issue guidance to its recipients and agency officials regarding data collection as required by the government-wide coordination regulations, and will consider making a data collection form part of the upcoming guidance.

Comment: A commenter asks what is to be gleaned from the data if a high number of participants opt not to answer the racial and ethnic data question. The commenter wanted to know if recipients will be asked to guess the taxpayers' ethnic backgrounds.

Treasury Response: The Department will provide guidance to its recipients regarding data collection as required by the government-wide coordination regulations, and in accordance with Office of Management and Budget (OMB) guidance, including OMB Statistical Policy Directive No. 15, as revised; and OMB Bulletin No. 00-02. Self-identification is the preferred method of data collection about race and ethnicity. OMB guidance states that respect for individual dignity should guide the processes and methods for collecting data on race and ethnicity. Respondent self-identification should be used to the greatest extent possible, but observer identification is more practical in some data collection systems.

Comment: A commenter asked if the Department will assume that if the vast majority of beneficiaries receiving benefits at a site belong to a particular ethnic background discrimination has occurred.

Treasury Response: Data showing the race and ethnicity of the program beneficiaries are relevant to determine compliance with the requirements of Title VI by the recipients of Treasury financial assistance. If the Department finds during a compliance review or investigation that a protected group in the population of the service area is not participating in the program, the Department will look at the entire record to determine the reason for the lack of participation, and whether corrective actions are needed. The Department will discuss issues of noncompliance with its recipients with the goal of achieving voluntary compliance.

Comment: Two commenters were concerned that increasing the burden on recipients of the VITA program will result in further reduction in the number of volunteers. The commenters stated they oppose any changes created by the rule that would result in additional burden to recipients of the VITA program by requiring additional documentation, reporting, and records retention. One commenter supports the information collection and is in agreement that the information collection does not subject recipients to any new substantive obligations, and that the economic burden associated with the collection of information will not significantly affect small governments or entities.

Treasury Response: The Department believes that any burden created by the requirements of the new rule, including the collection of data, is reasonable and justified by the goal of ensuring equal opportunity and nondiscrimination in the financial assistance programs. In the case of the VITA program, the recipients are already collecting data from the beneficiaries using the intake forms required by the program.

Comments: Three commenters stated that low-income housing credits (LIHTCs) should be included in the list of programs in the Appendix. These commenters stated that tax credits like LIHTCs provide a subsidy to achieve a specific public benefit and are federal financial assistance (FFA) for the purposes of Title VI. The three commenters stressed the important role LIHTCs play in the development of affordable housing, and stated that listing LIHTCs as FFA would protect millions of low-income individuals from housing discrimination.

Treasury Response: We agree with commenters regarding the importance of protecting the civil rights of individuals living in properties developed using LIHTCs. Other federal civil rights statutes, including the Fair Housing Act, 42 U.S.C. 3601 et seq. (FHA), prohibit discrimination on the bases of race, color, religion, sex, national origin, familial status, and disability, and apply to LIHTC properties. * * * The FHA prohibits both intentional discrimination and practices that have an unjustified discriminatory effect. Treasury's commitment to ensuring that developers, owners, operators, and managers of LIHTC properties do not discriminate, consistent with tax regulations that require LIHTC buildings to comply with fair-housing requirements, includes a 2000 Memorandum of Understanding (MOU) with the Department of Justice and the Department of Housing and Urban Development. This MOU is aimed at ensuring that developers, owners, operators, and managers of LIHTC properties comply with the FHA. See https://www.irs.gov/businesses/small-businesses-self-employed/exhibit-13-2. Among other provisions, the MOU requires the IRS to notify owners of LIHTC properties facing allegations of housing discrimination that a finding of a violation of the FHA could result in a loss of LIHTCs. This MOU demonstrates Treasury's commitment to ensuring that LIHTC housing providers do not discriminate in violation of the FHA.

The comments also stated that Title VI coverage was important to ensure that state agencies allocate housing credit dollar amounts (that is, the eligibility to earn LIHTCs) among proposed projects consistent with civil rights goals. These state agencies allocating housing credit dollar amounts may also receive grants or other forms of FFA from another federal agency, such as the Department of Housing and Urban Development, which would result in Title VI coverage for all of the state agency's operations. Thus, if an individual or organization believes that a state agency is allocating housing credit dollar amounts in a manner inconsistent with the requirements of Title VI, that individual or organization may determine whether the state agency is otherwise receiving FFA (which may include consulting www.usaspending.gov) and may file a complaint with the appropriate federal agency. Civil rights protections thereby cover LIHTC allocations and properties receiving LIHTCs regardless of whether the credits themselves constitute FFA as a legal matter.

While tax credits are generally not considered FFA, we recognize that, as the commenters have pointed out, some aspects of LIHTCs resemble programs that constitute FFA. Though we are not including LIHTCs in the Appendix, we emphasize that the Appendix does not purport to be exhaustive, and the absence of a program or activity from the list does not by such absence limit the applicability of Title VI to that program or activity.

Executive Orders 13563 and 12866 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, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

The Department certifies that no actions were deemed necessary under the Unfunded Mandates Reform Act of 1995. Furthermore, these regulations will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and they will not significantly or uniquely affect small governments.

The Department, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed these Title VI regulations and by approving, certifies that these regulations will not have a significant economic impact on a substantial number of small entities because all of the entities that are subject to these regulations are already subject to Title VI, and some entities already are subject to the Title VI regulations of other agencies.

This rule is not a “major rule,” nor will it have a significant economic impact on a substantial number of small entities, in large part because these regulations do not impose any new substantive obligations on federal funding recipients. All recipients of federal funding have been bound by Title VI's antidiscrimination provision since 1964. Individual participants in the recipients' programs have thus long had the right to be free from discrimination on the basis of race, color, and national origin. This rule merely ensures that the Department and its components have regulations implementing this statute.

These Title VI regulations 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. These Title VI regulations do not subject recipients of federal funding to any new substantive obligations because all recipients of federal funding have been bound by Title VI's antidiscrimination provision since 1964. Moreover, these Title VI regulations are required by statute; Congress specifically directed federal agencies to adopt implementing regulations when Title VI was enacted. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. No further action is required.

The Attorney General has reviewed and approved this rule pursuant to Executive Order 12250.

Under the Paperwork Reduction Act (44 U.S.C. chapter 35), an agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a valid control number issued by the Office of Management and Budget (OMB). The information collections contained in this rule will be submitted and approved by OMB in connection with information collections for the applicable programs listed in appendix A to the regulations.

The information collections contained in this rule are found in §§ 22.5 (reporting), 22.6 (reporting and recordkeeping), 22.7 (reporting), and 22.10 (reporting).

The OMB control numbers that will be revised include the following:

Union Pacific Railroad Company (UPRR) has requested a temporary deviation from the operating schedule for the Steel Bridge across the Willamette River, at mile 12.1, at Portland, OR. The deviation is necessary to accommodate work crews to conduct timely bridge equipment upgrades and replacement. The Steel Bridge is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. To facilitate this event, the upper deck and the lower deck will remain in closed-to-navigation position. When both decks are in the closed-to-navigation position, the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0. The deviation period is from 5 a.m. on January 9, 2017 to 11:59 p.m. on January 18, 2017. The normal operating schedule for the Steel Bridge is in accordance with 33 CFR 117.897(c)(3)(ii).

Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will not be able to open for emergencies, and there is no immediate alternate route for vessels to pass. UPRR has conducted a detailed public outreach for this ten day closure of both decks on the Steel Bridge to Multnomah County, and mariners that transit on the river. The Coast Guard has not received any objections to this temporary deviation from the operating schedule. The Coast Guard will also inform the users of the waterways through our Local 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 designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

BNSF requested that the Burlington Northern Santa Fe (BNSF) Railroad Bridge (Kennewick-Pasco Railroad Bridge) across the Columbia River, mile 328, remain closed to vessel traffic to replace a lift motor and install span controls. The Kennewick-Pasco Railroad Bridge provides 18 feet of vertical clearance above Columbia River Datum 0.0 while in the closed position. The current operations for the bridge is in 33 CFR 117.1035. This deviation allows the span of this bridge to remain in the closed-to-navigation position, and need not open for maritime traffic from 8 a.m. on January 9, 2017 to 8 p.m. on January 20, 2017. These dates coincide with the U.S. Army Corps of Engineers schedule closures of the Columbia River navigation locks. The bridge shall operate in accordance to 33 CFR 117.1035 at all other times. Waterway usage on this part of the Columbia River includes vessels ranging from commercial tug and tow vessels to recreational pleasure craft including cabin cruisers and sailing vessels.

Vessels able to pass through the bridge in the closed position may do so at anytime. During the first week of the installation period, the span of the bridge will not be able to open for maritime emergencies; however, the span may be opened during the second week of installation work for maritime emergencies, but any emergency opening will necessitate a time extension to the approved dates. No immediate alternate route for vessels to pass is available on this part of the river.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels 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 designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

I. Table of Abbreviations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register LIS Long Island Sound NPRM Notice of Proposed Rulemaking NAD 83 North American Datum 1983 II. Background Information and Regulatory History

On August 25, 2016, United Illuminating Company notified the Coast Guard that it will conduct a project involving the installation of new electrical transmission cables over the Housatonic River near Stratford and Milford, CT. The project is scheduled to begin on November 29, 2016 and be completed by December 21, 2016. The work will require the installation of six new transmission cables and two “static wires.” A messenger line with a buoy will be shot out into the river with a propulsive devise, and then picked up by a vessel, which will pull the messenger line to the opposite side of the river. The messenger line will be routed up the tower, and used to pull the cables across the river and onto the towers. Given the six cables and two static wires, there will be a total of eight “shots.” The work area is between the eastern and western shores of the Housatonic River. The southern boundary of the work zone begins at the Metro-North Rail Bridge and extends north approximately 525 feet upstream. The Captain of the Port (COTP) Long Island Sound has determined that the potential hazards associated with the cable crossing project could be a safety concern for anyone within the work area.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The late finalization of project details did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the cable crossing operation is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to protect the safety of the public and waterway users.

Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The legal basis for this temporary rule is 33 U.S.C. 1231. The COTP Sector LIS has determined that potential hazards associated with the river cable crossing project starting on November 29, 2016 and continuing through December 21, 2016 will be a safety concern for anyone within the work zone. This rule is needed to protect people and vessels within the safety zone while the cable crossing project is completed.

This rule establishes a safety zone from 8:00 a.m. on November 29, 2016 to 6:00 p.m. on December 21, 2016. The safety zone will cover all navigable waters of the Housatonic River near Milford and Stratford, CT contained within the following area: Beginning at a point on land in position at 41°12′17″ N., 073°06′40″ W. near the Governor John Davis Lodge Turnpike (I-95) Bridge; then northeast across the Housatonic River to a point on land in position at 41°12′20″ N., 073°06′29″ W. near the Governor John Davis Lodge Turnpike (I-95) Bridge; then northwest along the shoreline to a point on land in position at 41°12′25″ N., 073°06′31″ W.; then southwest across the Housatonic River to a point on land in position at 41°12′22″ N., 073°06′43″ W.; then southeast along the shoreline back to point of origin (NAD 83). All positions are approximate. The duration of the zone is intended to ensure the safety of people and vessels in these navigable waters during any instance that necessitates a temporary closure of the Housatonic River at the work site. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The safety zone will only be enforced during cable installation operations or other instances, when they cause a hazard to navigation.

The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via VHF-FM marine channel 16 eight hours in advance of any scheduled enforcement period. The regulatory text we are enforcing appears at the end of this document.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone, which will affect a small designated area of the Housatonic River for less than one hour at a time during the winter months when vessel traffic is normally low. It also may be enforced temporarily during the cable installation project if necessitated by an emergency. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit this regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This temporary rule involves a safety zone enforced for less than one hour at a time that would prohibit entry within the work zone during each cable installation. It also may be enforced temporarily during the cable installation project if necessitated by an emergency, such as equipment falling from the towers into the Housatonic River. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because information about the training starting at 8 a.m. on December 12, 2016, through 4 p.m. on December 16, 2016, was not received by the Coast Guard until October 25, 2016. Failure to conduct this required training at this time will result in a lapse in personnel qualification standards and, consequently, the inability of Navy personnel to carry out important national security functions. Due to the timing of the notification it would be impracticable for the Coast Guard to publish an NPRM because there is insufficient time to allow for an opportunity for public comment on the proposed rule. Publishing an NPRM would be contrary to the public interest since immediate action is necessary to protect the public safety by ensuring the standards of training are met. The potential hazards to mariners within the safety zone include shock waves, flying shrapnel, and loud noises. We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. As noted above, failure to conduct this required training at this time will result in a lapse in personnel qualification standards and, consequently, the inability of Navy personnel to carry out important national security functions. Due to the need for immediate action, the restriction on vessel traffic is necessary to protect life, property and the environment. Delaying the effective date would be contrary to the safety zone's intended objectives of protecting persons and vessels, and enhancing public and maritime safety.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Hampton Roads (COTP) has determined that potential hazards associated with the military training starting at 8 a.m. on December 12, 2016, through 4 p.m. on December 16, 2016, will be a safety concern for anyone within a 1500-foot radius of the M/V SS DEL MONTE. This rule is needed to protect the participants, patrol vessels, and other vessels transiting the navigable waters of the James River, in the vicinity of the James River Reserve Fleet, from hazards associated with military explosives operations. The potential hazards to mariners within the safety zone include shock waves, flying shrapnel, and loud noises.

This rule establishes a safety zone from 8 a.m. on December 12, 2016, through 4 p.m. on December 16, 2016. The safety zone will encompass all navigable waters within a 1500-foot radius of the M/V SS DEL MONTE located in approximate position 37°06′11″ N., 076°38′40″ W. The duration of the zone is intended to protect personnel and vessels in these navigable waters while the training is in effect. This safety zone still allows for navigation on the waterway around the safety zone. Access to the safety zone will be restricted during the effective period. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

This rule is not a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

The Coast Guard expects the economic impact of this rule to be nominal. This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This safety zone which will impact a small designated area of the James River in Newport News, Virginia, beginning at 8 a.m. on December 12, 2016, through 4 p.m. on December 16, 2016. The safety zone will occur during a time of year when vessel traffic is normally low and vessel; traffic will be able to safety transit around the safety zone. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of federal employees who enforce, or otherwise determine compliance with, federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than 4 days that will prohibit entry within 1500 feet of theM/V SS DEL MONTE along the James River. It is categorically excluded from further review under paragraph 34(g) of figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive order 12988, Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

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

Introduction

In 2009, the Copyright Royalty Judges (Judges) published regulations concerning reporting requirements for webcasters streaming sound recordings under statutory licenses described in 17 U.S.C. 112 and 114. See 79 FR 25009. On June 21, 2016, the Judges published a technical amendment to the regulations. 81 FR 40190. Later that same day, the Judges received a Joint Petition of the National Association of Broadcasters and the National Religious Broadcasters Noncommercial Music License Committee (together, Broadcasters) to Amend Final Rule Regarding Reporting Requirements (Joint Motion).

The Broadcasters contended that by removing the definition of “Minimum Fee Broadcaster” the Judges had failed to effect their intent. Joint Motion at 7. The Judges agreed that the regulation as amended on June 21, 2016, did not effect their intent because it defined the term “Eligible Minimum Fee Webcaster” too narrowly and therefore arguably excluded the webcasts of noncommercial minimum fee broadcasters, a category that the Judges had intended to include. Accordingly, on August 10, 2016, the Judges proposed a second amendment to the regulations and published it for comment. 81 FR 52782.

The Broadcasters filed a joint comment supporting adoption of the proposed second amendment to the regulations. The Intercollegiate Broadcasting System (IBS), which had appealed the prior iterations of the regulations to the U.S. Court of Appeals for the D.C. Circuit, filed a comment that included the following language.

In consideration of the foregoing, the Copyright Royalty Judges amend 37 CFR part 370 as follows.

I. Background

On December 14, 2012, EPA promulgated a revised primary annual PM2.5 NAAQS to provide increased protection of public health from fine particle pollution (the 2012 PM2.5 NAAQS). 78 FR 3086 (January 15, 2013). In that action, EPA strengthened the primary annual PM2.5 standard, lowering the level from 15.0 micrograms per cubic meter (mg/m3) to 12.0 mg/m3. The 2012 PM2.5 NAAQS is attained when the 3-year average of the annual arithmetic means does not exceed 12.0 mg/m3. See 40 CFR 50.18. On December 18, 2014 (80 FR 2206), EPA made designation determinations, as required by CAA section 107(d)(1), for the 2012 PM2.5 NAAQS. In that action, EPA designated the Delaware County Area as moderate nonattainment for the 2012 annual PM2.5 NAAQS. See 40 CFR 81.339.

Under EPA's longstanding Clean Data Policy,1 which was codified in EPA's Clean Air Fine Particulate Implementation Rule (72 FR 20586, April 25, 2007), EPA may issue a determination of attainment after notice and comment rulemaking determining that a specific area is attaining the relevant standard. See 40 CFR 51.1004. The effect of a clean data determination is to suspend the requirement for the area to submit an attainment demonstration, RACM, RFP plan, contingency measures, and any other planning SIPs related to attainment for as long as the area continues to attain the standard.

EPA issued the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements on July 29, 2016 (effective October 24, 2016). 81 FR 58010 (August 24, 2016). In that rule, EPA reaffirmed the Clean Data Policy at 40 CFR 51.1015, as follows:

Under EPA regulations at 40 CFR part 50, § 50.18 and appendix N, the annual primary PM2.5 standard is met when the 3-year average of PM2.5 annual mean mass concentrations for each eligible monitoring site is less than or equal to 12 μg/m3. Three years of valid annual means are required to produce a valid annual PM2.5 NAAQS design value. A year meets data completeness requirements when quarterly data capture rates for all four quarters are at least 75 percent from eligible monitoring sites. See 40 CFR part 50, appendix N. There is one PM2.5 monitor in the Delaware County Area. Table 1 shows the Delaware County Area design value for the 2012 annual PM2.5 NAAQS for the years 2013-2015 at the Delaware County monitor.

Consistent with the requirements contained in 40 CFR part 50, EPA has reviewed the PM2.5 ambient air quality monitoring data for the monitoring period from 2013 through 2015 for the Delaware County Area, as recorded in the AQS database. As shown from Table 1, each quarter in 2013-2015 is complete with all four quarters reporting data capture rates of at least 75 percent from the only monitor. Additionally, the certified annual design value for 2013-2015 is 11.6 μg/m3, which is below the 2012 annual primary PM2.5 standard of 12 μg/m3. Therefore, the Delaware County Area has attained the 2012 annual PM2.5 NAAQS in accordance with the requirements in 40 CFR part 50, § 50.18 and appendix N.

EPA is determining that the Delaware County Area has attained the 2012 annual PM2.5 NAAQS. As provided in 40 CFR 51.1015, finalization of this determination, suspends the requirements for this area to submit an attainment demonstration, associated RACM, RFP plan, contingency measures, and any other planning SIP revisions related to the attainment of the 2012 PM2.5 NAAQS, so long as this area continues to meet the standard. This determination of attainment does not constitute a redesignation to attainment. The Delaware County Area will remain designated nonattainment for the 2012 annual PM2.5 NAAQS until such time as EPA determines that the Delaware County Area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan, pursuant to sections 107 and 175A of the CAA.

EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the determination of attainment if adverse comments are filed. This rule will be effective on February 13, 2017 without further notice unless EPA receives adverse comment by January 12, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

This rulemaking action makes a determination of attainment of the 2012 PM2.5 NAAQS based on air quality and does not impose additional requirements. For that reason, this determination of attainment:

• 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 (Public Law 104-4);

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

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

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

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

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

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

In addition, this rulemaking determining that the Delaware County Area has attained the 2012 annual PM2.5 NAAQS does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 13, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This determination of attainment of the 2012 annual PM2.5 NAAQS for the Delaware County nonattainment area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

U.S. EPA Regional Office Contacts: Region VI—Jim Grady, telephone (214) 665-6745, email at [email protected].

The public may inspect the rule and area-specific technical support information at the following location: Air Planning Section, EPA Region VI, 1445 Ross Avenue, Dallas, TX 75202.

The following is an outline of the preamble.

The following are abbreviations of terms used in the preamble.

The purpose of this final action is to announce and promulgate initial air quality designations for four areas in Texas for the 2010 primary SO2 NAAQS, in accordance with the requirements of the CAA. The EPA is designating three of these areas as nonattainment, and one area as unclassifiable. As discussed in Section IV of this document, the EPA is designating areas for the 2010 SO2 NAAQS in multiple rounds under a court-ordered schedule pursuant to a consent decree. The EPA completed the first round of SO2 designations in an action signed by the Administrator on July 25, 2013 (78 FR 47191; August 5, 2013). In that action, the EPA designated 29 areas in 16 states as nonattainment, based on air quality monitoring data.

The court order required the EPA Administrator to sign a notice designating areas in a second round that contained sources meeting certain criteria no later than July 2, 2016. See Sierra Club and NRDC v. McCarthy, No. 3:13-cv-3953-SI (N.D. Cal.) (March 2, 2015). The four areas in Texas covered by this action met those criteria, and the EPA responded to state recommendations for Round 2 designations, including Texas' recommendations for these four areas, on February 11, 2016 (Letter from Ron Curry, EPA Region 6 Administrator, to Governor of Texas, Honorable Greg Abbott). In the second round of SO2 designations signed on June 30, 2016, the EPA designated 61 areas in 24 states (including eight other areas in Texas): four nonattainment areas, 41 unclassifiable/attainment areas and 16 unclassifiable areas (81 FR 45039; July 12, 2016). However, by a series of stipulations of the parties in Sierra Club and NRDC v. McCarthy and orders of the Court, the deadline to promulgate designations was extended to November 29, 2016, for the four areas in Texas that are the subject of this supplemental action. This action to designate four Texas areas further discharges the EPA's duty to issue the second round of SO2 designations, and uses the same administrative record as supported by the action signed on June 30, 2016, that addressed eight other Texas areas and other areas in the United States, as supplemented by additional materials further addressing these four Texas areas.

In this supplementary designation action, the list of areas being designated in Texas and the boundaries of each area appear in the tables within the regulatory text at the end of this notice. These designations are based on the EPA's technical assessment of and conclusions regarding the weight of evidence for each area, including but not limited to available air quality monitoring data or air quality modeling. With respect to air quality monitoring data, the EPA considered data from the most recent calendar years 2012-2015. In the modeling runs conducted by industry and members of the public, the air quality impacts of the actual emissions for the 3-year periods 2012-2014 or 2013-2015 were assessed.

For the areas being designated nonattainment, the CAA directs states to develop and submit to the EPA State Implementation Plans within 18 months of the effective date of this final rule that meet the requirements of sections 172(c) and 191-192 of the CAA and provide for attainment of the NAAQS as expeditiously as practicable, but not later than 5 years from the effective date of this final rule. We also note that under the EPA's SO2 Data Requirements Rule in 40 CFR part 51, subpart BB (80 FR 51052; August 21, 2015), the EPA expects to receive additional air quality characterization for the one area in Milam County, Texas, designated unclassifiable in this action, and the agency will consider such data, as appropriate, in future actions.

The Administrator signed a final rule revising the primary SO2 NAAQS on June 2, 2010. The rule was published in the Federal Register on June 22, 2010 (75 FR 35520) and became effective on August 23, 2010. Based on the Administrator's review of the air quality criteria for oxides of sulfur and the primary NAAQS for oxides of sulfur as measured by SO2, the EPA revised the primary SO2 NAAQS to provide requisite protection of public health with an adequate margin of safety. Specifically, the EPA established a new 1-hour SO2 standard at a level of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. 40 CFR 50.17(a)-(b). The EPA also established provisions to revoke both the existing 24-hour and annual primary SO2 standards, subject to certain conditions. 40 CFR 50.4(e).

Additional information regarding the current scientific evidence on the health impacts of short-term exposures to SO2 is provided in the Federal Register notice containing the final rule for the second round of SO2 designations for other areas that was signed on June 30, 2016. See 81 FR 45041.

After the EPA promulgates a new or revised NAAQS, the EPA is required to designate all areas of the country as either “nonattainment,” “attainment,” or “unclassifiable,” for that NAAQS pursuant to section 107(d)(1) of the CAA. Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” This provision also defines an attainment area as any area other than a nonattainment area that meets the NAAQS and an unclassifiable area as any area that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

Additional information regarding the process for designating areas following promulgation of a new or revised NAAQS pursuant to section 107(d) of the CAA and how the EPA is applying this process to the designation of areas under the 2010 SO2 NAAQS is provided in the final rule addressing the second round of SO2 designations for other areas signed on June 30, 2016. See 81 FR 45041. For this supplemental action, the EPA reiterates that CAA section 107(d) provides the agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA's position is that the statute does not require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations.1

Similarly, the EPA's position is that the statute permits the EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, as may be appropriate for a particular NAAQS. For example, CAA section 107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area “or portions thereof,” and under CAA section 107(d)(1)(B)(iv) a designation remains in effect for an area “or portion thereof” until the EPA redesignates it.

As explained in more detail in the final rule addressing the second round of SO2 designations for other areas, the EPA completed the first round of SO2 designations for 29 areas on July 25, 2013 (78 FR 47191), and intends to complete up to three more rounds of designations to address all remaining areas pursuant to a schedule contained in a consent decree and enforceable order entered by the U.S. District Court for the Northern District of California on March 2, 2015. See 81 FR 45042.

The court order specifies that in this second round of SO2 designations the EPA must designate two groups of areas: (1) Areas that have newly monitored violations of the 2010 SO2 NAAQS and (2) areas that contain any stationary sources that had not been announced as of March 2, 2015, for retirement and that, according to the EPA's Air Markets Database, emitted in 2012 either (i) more than 16,000 tons of SO2, or (ii) more than 2,600 tons of SO2 with an annual average emission rate of at least 0.45 pounds of SO2 per one million British thermal units (lbs SO2/mmBTU).

On March 20, 2015, the EPA sent letters to Governors notifying them of the schedule for completing the remaining designations for the 2010 1-hour SO2 NAAQS. The EPA offered states, including Texas, the opportunity to submit updated recommendations and supporting information for the EPA to consider for the affected areas. The EPA also notified states that the agency had updated its March 24, 2011, SO2 designations guidance to support analysis of designations and boundaries for the next rounds of designations. All of the states, including Texas, with affected areas submitted updated designation recommendations.

In a letter dated February 11, 2016, the EPA notified Texas of its intended designation of twelve Round 2 areas, including the four areas in Texas addressed in this final notice, as either nonattainment, unclassifiable/attainment, or unclassifiable for the SO2 NAAQS. Texas then had the opportunity to demonstrate why they believed the EPA's intended modification of their updated recommendations may be inappropriate. Although not required, as the EPA had done for the first round of SO2 designations, the EPA also provided an opportunity for members of the public to comment on the EPA's February 2016 response letters. The EPA published a notice of availability and public comment period for the intended designation on March 1, 2016 (81 FR 10563). The public comment period closed on March 31, 2016. The updated recommendations, the EPA's February 2016 responses to those letters, any modifications, and the subsequent state and public comment letters, are in the docket for the Round 2 SO2 designations at Docket ID No. EPA-HQ-OAR-2014-0464 and are available on the SO2 designations Web site.

Before taking final action, however, the parties to Sierra Club and NRDC v. McCarthy filed the first in a series of joint stipulations extending the deadline for these four areas in Texas, out to November 29, 2016.2 In the final rule signed on June 30, 2016, the EPA promulgated designations for the Round 2 areas for which no extensions in the deadline had been obtained (including the eight other Texas areas) and explained the ongoing process for completing SO2 designations for all areas of the country by December 31, 2020 (see generally 81 FR 45042-43).

In these supplemental Round 2 designations, and consistent with the extended deadline under the consent decree, the EPA must designate the four areas in Texas associated with the following sources by November 29, 2016: The Big Brown Steam Electric Station in the Freestone and Anderson Counties Area, the Sandow Power Station in the Milam County Area, the Martin Lake Electrical Station in the Rusk and Panola Counties Area, and the Monticello Steam Electric Station in the Titus County Area.

Following entry of the March 2, 2015, court order, the EPA issued updated designations guidance through a March 20, 2015, memorandum from Stephen D. Page, Director, U.S. EPA, Office of Air Quality Planning and Standards, to Air Division Directors, U.S. EPA Regions 1-10 titled, “Updated Guidance for Area Designations for the 2010 Primary Sulfur Dioxide National Ambient Air Quality Standard.” As explained in the final rule addressing the second round of SO2 designations for other areas signed on June 30, 2016, this guidance contains the factors the EPA intends to evaluate in determining the appropriate designations and associated boundaries for all remaining areas in the country, including: (1) Air quality characterization via ambient monitoring or dispersion modeling results; (2) emissions-related data; (3) meteorology; (4) geography and topography; and (5) jurisdictional boundaries. See 81 FR at 45043. Additional information regarding relevant guidance relied upon in designating the other second round areas and that is also used in this supplemental action is available in the previously issued final rule. See id.

To inform designations for the SO2 NAAQS, air agencies have the flexibility to characterize air quality using either appropriately sited ambient air quality monitors or using modeling of actual or allowable source emissions. The EPA's non-binding Monitoring Technical Assistance Document (TAD) and Modeling TAD contain scientifically sound recommendations on how air agencies should conduct such monitoring or modeling. For the SO2 designations of the four Texas areas addressed in this supplemental action, the EPA is using the same approach taken for a number of areas designated in the final rule signed on June 30, 2016, and considering available air quality monitoring data from calendar years 2012-2015, and modeling submitted by the affected emissions sources and a public interest group. See 81 FR 45043. In the modeling runs, the impacts of the actual emissions for the 3-year periods 2012-2014 or 2013-2015 were considered. The 1-hour primary SO2 standard is violated at an ambient air quality monitoring site (or in the case of dispersion modeling, at an ambient air quality receptor location) when the 3-year average of the annual 99th percentile of the daily maximum 1-hour average concentrations exceeds 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. The EPA has concluded that dispersion modeling shows that three Round 2 areas in Texas (portions of Freestone and Anderson Counties, portions of Rusk and Panola Counties, and portions of Titus County) are not meeting the 1-hour primary SO2 standard and we are, therefore, designating these areas as nonattainment. Based on available information, the EPA has also concluded that it cannot determine whether one Round 2 area in Texas (Milam County) is or is not meeting the 1-hour primary SO2 standard and whether the area contributes to a violation in a nearby area. Therefore, we are designating this area as unclassifiable. Details about the available information can be found in the supplemental technical support document in the docket for the Round 2 SO2 designations at Docket ID No. EPA-HQ-OAR-2014-0464.

For the designations in four areas of Texas for the 2010 primary SO2 NAAQS supplementing the Round 2 designations, the EPA is designating 3 state areas as nonattainment and 1 state area as unclassifiable. No areas of Indian country are being designated as part of this action.

Information providing the basis for this action can be found in several technical support documents (TSDs), a response to comments document (RTC) and other information in the docket. The TSDs, RTC, applicable EPA guidance memoranda and copies of correspondence regarding this process between the EPA and the states, tribes and other parties, are available for review at the EPA Docket Center listed above in the ADDRESSES section of this document and on the agency's SO2 Designations Web site at https://www.epa.gov/sulfur-dioxide-designations. Area-specific questions can be addressed by the EPA Regional office (see contact information provided at the beginning of this notice).

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either nonattainment, attainment, or unclassifiable. This final action addresses designation determinations for four areas in Texas for the 2010 primary SO2 NAAQS. Area designations address environmental justice concerns by ensuring that the public is properly informed about the air quality in an area. In locations where air quality does not meet the NAAQS, the CAA requires relevant state authorities to initiate appropriate air quality management actions to ensure that all those residing, working, attending school, or otherwise present in those areas are protected, regardless of minority and economic status.

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to selected areas as required.

This action is exempted from the Office of Management and Budget because it responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS.

This action does not impose an information collection burden under the PRA. This action responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107 of title 1. This action does not contain any information collection activities.

This final rule is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements under the APA but is subject to the CAA section 107(d)(2)(B) which does not require a notice-and-comment rulemaking to take this action.

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

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

This action does not have tribal implications, as specified in Executive Order 13175. This action concerns the designation of certain areas in the U.S. for the 2010 primary SO2 NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The Tribal Authority Rule (TAR) provides tribes the opportunity to apply for eligibility to develop and implement CAA programs, such as programs to attain and maintain the SO2 NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the SO2 NAAQS. This rule establishes the designations for certain areas of the country for the SO2 NAAQS, but no areas of Indian country are being designated in this action. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to this rule, after the EPA promulgated the 2010 primary SO2 NAAQS, the EPA communicated with tribal leaders and environmental staff regarding the designations process. The EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2010 primary SO2 NAAQS, to provide the EPA designations guidance, and to offer consultation with the EPA. The EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. The EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended designations for the SO2 standard and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the 2010 primary SO2 NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule was under development. For this supplemental round of SO2 designations action, the EPA sent additional letters to tribes that could potentially be affected and offered additional opportunities for participation in the designations process. The communication letters to the tribes are provided in the dockets for Round 1 designations (Docket ID No. EPA-HQ-OAR-2012-0233) and Round 2 designations (Docket ID No. EPA-HQ-OAR-2014-0464).

The action is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined in Executive Order 12866. While not subject to the Executive Order, this final action may be especially important for asthmatics, including asthmatic children, living in SO2 nonattainment areas because respiratory effects in asthmatics are among the most sensitive health endpoints for SO2 exposure. Because asthmatic children are considered a sensitive population, the EPA evaluated the potential health effects of exposure to SO2 pollution among asthmatic children as part of the EPA's prior action establishing the 2010 primary SO2 NAAQS. These effects and the size of the population affected are summarized in the EPA's final SO2 NAAQS rules. See http://www3.epa.gov/ttn/naaqs/standards/so2/fr/20100622.pdf.

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

This action does not involve technical standards.

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

The CRA, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the U.S. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the U.S. prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 12, 2017.

Section 307 (b) (1) of the CAA indicates which Federal Courts of Appeal have venue for petitions for review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This final action designating areas for the 2010 primary SO2 NAAQS is “nationally applicable” within the meaning of section 307(b)(1). As explained in the preamble, this final action supplements the June 30, 2016 final action taken by the EPA to issue a second round of designations for areas across the U.S. for the 2010 primary SO2 NAAQS. EPA determined the June 30, 2016 final action was “nationally applicable” within the meaning of section 307(b)(1). 81 FR 45045. The rulemaking docket, EPA-HQ-OAR-2014-0464, is the same docket for both the June 30, 2016 action and for this supplemental action, with the relevant difference being that in addition to the materials it contained regarding these four Texas areas generated through June 30, 2016—the date that action was signed by the Administrator—it now also contains the final technical support documents and responses to comments related to these four areas. Both the June 30, 2016 action and this supplemental action were proposed in a single March 1, 2016, notice announcing the EPA's intended Round 2 designations and were taken to discharge a duty under the court order to issue a round of designations of areas with sources meeting common criteria in the court order. As explained in the June 30, 2016 final rule, at the core of that final action and this supplemental final action is the EPA's interpretation of the definitions of nonattainment, attainment and unclassifiable under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country. Id. Accordingly, the Administrator has determined that this supplemental final action, which results from the same proposed action as the June 30, 2016 final action, is nationally applicable and is hereby publishing that finding in the Federal Register.

For the same reasons, the Administrator also is finding that this supplemental final action is based on a determination of nationwide scope and effect for the purposes of section 307(b)(1). As previously explained in the June 30, 2016 final action, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. 81 FR 45045. Here, the June 30, 2016 final action and this supplemental final action combined issue designations in 65 areas in 24 states and extend to numerous judicial circuits. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the action to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit. Therefore, like the June 30, 2016 final action it supplements, see 81 FR at 45045, this final action is based on a determination by the Administrator of nationwide scope or effect, and the Administrator is hereby publishing that finding in the Federal Register.

Thus, any petitions for review of these final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:

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

The commercial ACL (equal to the commercial quota) for vermilion snapper in the South Atlantic is divided into separate quotas for two 6-month time periods each year, January through June and July through December. For the July through December 2016 period, the commercial quota is 388,703 lb (176,313 kg, gutted weight, 431,460 lb (195,707 kg), round weight), as specified in 50 CFR 622.190(a)(4)(ii)(D).

On July 1, 2016, the commercial fishing season opened for the second period of July through December for this fishing year. Under 50 CFR 622.191(a)(6)(ii), NMFS is required to reduce the commercial trip limit for vermilion snapper from 1,000 lb (454 kg), gutted weight, 1,110 lb (503 kg), round weight, when 75 percent of the respective fishing season commercial quota is reached or projected to be reached. Accordingly, on August 25, 2016 (81 FR 58411), NMFS published a temporary rule in the Federal Register to reduce the commercial trip limit for vermilion snapper in or from the EEZ of the South Atlantic for the July through December 2016 period to 500 lb (227 kg), gutted weight. The commercial trip limit reduction was effective at 12:01 a.m., local time, August 28, 2016.

Under 50 CFR 622.193(f)(1), NMFS is required to close the commercial sector for vermilion snapper when the commercial quota for the July through December fishing season specified in § 622.190(a)(4)(ii)(D) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS previously projected that the commercial quota for South Atlantic vermilion snapper for the July through December 2016 period would be reached by October 11, 2016. Therefore, NMFS published a temporary rule to close the commercial sector for South Atlantic vermilion snapper effective on October 11, 2016, through the end of the 2016 fishing year (81 FR 69008, October 5, 2016).

NMFS has received more recent landings data for vermilion snapper that indicate the commercial quota for the July through December period has not been reached. NMFS has also determined that 845 lb (383 kg) of the commercial quota was not harvested from the January through June 2016 period. Therefore, as specified at 622.190(a)(4)(iii), this 845 lb (383 kg) was added to the commercial quota for the July through December 2016 period.

In accordance with 50 CFR 622.8(c), NMFS temporarily re-opens the commercial sector for vermilion snapper on December 14, 2016. The commercial sector will remain open for 2 days to allow for the commercial quota to be reached. During the re-opening, the trip limit of 500 lb (227 kg), gutted weight, is in effect. The commercial sector will close at 12:01 a.m., local time, December 16, 2016, and remain closed until January 1, 2017, the start of the next fishing year. NMFS has determined that this re-opening will allow for an additional opportunity to commercially harvest vermilion snapper while minimizing the risk of exceeding the July through December 2016 commerical quota.

The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having vermilion snapper onboard must have landed and bartered, traded, or sold such vermilion snapper prior to 12:01 a.m., local time, December 16, 2016. During the subsequent closure, the bag limit specified in 50 CFR 622.187(b)(5) and the possession limits specified in 50 CFR 622.187(c)(1), apply to all harvest or possession of vermilion snapper in or from the South Atlantic EEZ. During the subsequent closure, the sale or purchase of vermilion snapper taken from the EEZ is prohibited. As specified in 50 CFR 622.190(c)(1)(i), the prohibition on sale or purchase does not apply to the sale or purchase of vermilion snapper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, December 16, 2016, and were held in cold storage by a dealer or processor. For a person onboard a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and the prohibition on sale and purchase apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

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

This action is taken under 50 CFR 622.8(c) and is exempt from review under Executive Order 12866.

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

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA), finds that the need to immediately implement this action to temporarily re-open the commercial sector for vermilion snapper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and AMs has been subject to notice and comment, and all that remains is to notify the public of the re-opening. Such procedures are contrary to the public interest because of the need to immediately implement this action to allow commercial fishers to harvest the commercial quota of vermilion snapper from the EEZ, while minimizing the risk of exceeding the commercial quota. Prior notice and opportunity for public comment would be contrary to the public interest because it would not allow for the re-opening of the commercial sector before the end of the fishing season.

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