Federal Register Vol. 81, No.66,

The Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register at 81 FR 3758, on January 22, 2016, to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. DHS issued the “Department of Homeland Security/ALL-030 Use of the Terrorist Screening Database System of Records” in the Federal Register at 81 FR 3811 on January 22, 2016, to provide notice to the public that DHS was adding two new consumers to the “DHS Watchlist Service.” DHS also clarified an existing category of individuals, added two new categories of individuals, and clarified the categories of records maintained in this system. DHS invited comments on both the Notice of Proposed Rulemaking (NPRM) and System of Records Notice (SORN).

DHS received three comments. Two comments were from private individuals who complemented DHS for this update. DHS received an identical comment from a public interest research center on the SORN and NPRM. The commenter raised concerns regarding the number of exemptions taken by DHS, particularly exemptions related to access and accounting for disclosures. Specifically, the commenter questioned the need to exempt records once an investigation was complete.

In response, DHS emphasizes that the Terrorist Screening Database (TSDB) belongs to the Department of Justice (DOJ)/Federal Bureau of Investigation (FBI). DHS does not change or alter these records. All records within the DHS/ALL-030 Use of the Terrorist Screening Database System of Records are collected and disseminated by the DOJ/FBI and are covered by the DOJ/FBI-019, “Terrorist Screening Records Center System,” 72 FR 77846 (Dec. 14, 2011). Because DHS does not make any changes to the records obtained from DOJ/FBI, the same exemptions outlined in the DOJ/FBI SORN, and reasons provided in its implementing regulations for use of such exemptions at 28 CFR 16.96, transfer and apply. For instance, disclosing this information to individuals who have been misidentified as known or suspected terrorists due to a close name similarity, and of which the investigation has been completed, could reveal the Government's investigative interest in a terrorist suspect for an ongoing investigation, because it could make known the name of the individual who actually is the subject of the Government's interest. Similarly, providing any type of notice to a misidentified known or suspected terrorist due to a close name similarity could alert the actual known or suspected terrorist of the Government's investigative interest in that individual. Further, amendment of these records would impose an impossible administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised. DHS is not taking any new exemptions as a result of the expansion to the categories of individuals in the TSDB. As noted in the NPRM, permitting access and amendment to watchlist records could disclose sensitive information that could be detrimental to national security. Release of the accounting of disclosures could reveal the details of watchlist matching measures, as well as capabilities and vulnerabilities of the watchlist matching process, the release of which could permit an individual to evade future detection and thereby impede efforts to ensure national security.

However, DHS does agree that some of the exemptions proposed in the NPRM are unnecessary. With the publication of this Final Rule, DHS is removing the exemption from subsections 5 U.S.C. 552a(e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because DHS has already established requirements, rules, or procedures with respect to individual access and will review each request for access on a case-by-case basis. Concurrent with this Final Rule, DHS is republishing the DHS/ALL-030 Use of the Terrorist Screening Database System of Records to reflect this change.

For the reasons stated in the preamble, DHS amends chapter I of title 6, Code of Federal Regulations, as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class D and Class E airspace, and amends Class E airspace at Lake City Gateway Airport, Lake City, FL.

On January 13, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class D airspace and Class E surface area airspace, and amend Class E airspace extending upward from 700 feet above the surface at Lake City Gateway Airport, Lake City, FL, providing the controlled airspace required to support the Air Traffic Control Tower (81 FR 1590) FAA-2015-4010. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication, the FAA found an error in the geographic coordinates of Lake City Gateway Airport. This action corrects that error.

Class D and E airspace designations are published in paragraphs 5000, 6002, and 6005, respectively, of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class D airspace and Class E surface area airspace at Lake City Gateway Airport, Lake City, FL, providing the controlled airspace required to support the Air Traffic Control Tower. Class D airspace extending upward from the surface up to and including 2,500 feet is established within a 4.2 mile radius of the airport. Class E surface area airspace is established within a 4.2 mile radius of the airport. Class E airspace extending upward from 700 feet above the surface is amended by changing the airport's name from Lake City Municipal Airport to Lake City Gateway Airport. Controlled airspace is necessary for IFR operations. The geographic latitude coordinate of the airport is adjusted from “lat. 30°10′56″ N.”, to “lat. 30°10′55″ N.” for the Class D and E airspace areas.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D airspace at Bartow Municipal Airport, Bartow, FL.

In a review of the airspace, the FAA found the Class D airspace description for Bartow Municipal Airport, Bartow, FL, published in FAA Order 7400.9Z, describes the ceiling as, extending upward from the surface to and including 2,600 feet MSL. The Tampa International Airport Class B airspace area has control of aircraft operating at and above 1,800 feet MSL in the Bartow, FL, Class D airspace area. The FAA is lowering the Class D airspace area to 1,600 feet MSL to avoid the overlap between the two facilities. To avoid confusion on the part of the pilots overflying the Bartow, FL, area, the FAA finds that notice and public procedure under 5 U.S.C 553(b) are impracticable and contrary to the public interest. To be consistent with the FAA's safety mandate when an unsafe condition exists, the FAA finds good cause pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days to promote the safe and efficient handling of air traffic in the area.

Class D airspace designations are published in paragraphs 5000 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by lowering the Class D ceiling airspace area from 2,600 feet MSL to and including 1,600 feet MSL at Bartow Municipal Airport, Bartow, FL. The Letter of Agreement between Tampa TRACON and Bartow ATCT, established June 3, 2013, states that Tampa TRACON shall control aircraft operating at or above 1,800 feet MSL in the Bartow Airport Class D airspace area. This airspace change eliminates pilot confusion for those aircraft operating above 1,600 feet MSL in the Bartow Airport Class D airspace area.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Background

By Order dated May 21, 2008, the FAA placed temporary limits on scheduled operations at EWR to mitigate congestion and delays at the airport.1 The Order addressed the FAA's concern about a spillover effect in the summer 2008 scheduling season resulting from the Agency's Order limiting operations at John F. Kennedy International Airport (JFK), which took effect in March 2008.2

Under the EWR Order, the FAA (1) established hourly limits of 81 scheduled operations during the peak period; (2) imposed an 80 percent minimum usage requirement for Operating Authorizations (OAs or slots) with defined exceptions; (3) provided a mechanism for withdrawal of OAs for FAA operational reasons; (4) established procedures to allocate withdrawn, surrendered, or unallocated OAs; and, (5) allowed for trades and leases of OAs for consideration for the duration of the Order.

On January 8, 2015, the Department of Transportation (DOT) and FAA issued the Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport Notice of Proposed Rulemaking (NPRM).3 The DOT and FAA are currently reviewing the comments received on the NPRM and considering the impacts of the EWR Level 2 designation on the rulemaking.

Based on the FAA's review of operational performance, demand, and capacity discussed in this document, Level 3 slot controls are no longer warranted for EWR. Rather, the FAA will transition EWR to a Level 2, schedule-facilitated airport, starting with the Winter 2016 scheduling season. In addition, the FAA also has updated the performance, demand, and capacity analyses for JFK and LGA and has determined that Level 3 slot-controlled restrictions remain necessary for these airports. Therefore, through separate notices published in the Federal Register, the FAA will be extending the JFK and LGA Orders until October 27, 2018.

This document confirms the EWR Order will expire on October 29, 2016. A copy of this document will be placed in Docket FAA-2008-0221. As explained herein, the FAA is designating EWR as a Level 2 airport effective October 30, 2016. As further explained in this document, the FAA has conducted a screening for potential impacts to noise and air emissions as a result of this change in designation at EWR and has determined that the proposed action does not have the potential to cause a significant impact.

The FAA regularly reviews operational performance and demand at the New York City area airports as part of ongoing efforts to improve the efficiency of the air traffic control system. Section 413 of the FAA Modernization and Reform Act, Pub. L. 112-95, 126 Stat. 11 (Feb. 14, 2012), requires the FAA to take actions to ensure that aircraft operations of air carriers do not exceed the hourly maximum departure and arrival rate established by the Administrator for such operations. The FAA reviews data on actual operations, including the number of hourly and daily air traffic operations, runway capacity and utilization, aircraft fleet mix, scheduled and unscheduled demand, on-time performance relative to schedule, the number and duration of flight arrival and departure delays, airfield or other capacity changes, and air traffic control procedures.

On an annual basis since adopting the 2008 Order, the FAA has performed analyses to compare and contrast operational and performance data for each year subsequent to the peak 2007 summer scheduling season to identify operational and performance trends. Such analyses have consistently placed particular emphasis on the May through August months since this period includes the peak summer demand. The on-time performance and delay metrics at EWR show significant improvements during such peak periods of demand. For example, on-time gate arrivals at EWR have increased by about 11 percentage points when comparing May through August 2015 to the same period in 2007.4 On-time gate departures improved by approximately three percentage points. The mean arrival and departure delays are down by about 33 percent, and the delays greater than 60 minutes are down by 37 percent for arrivals and 38 percent for departures.

The FAA recently modeled the summer 2015 demand against summer 2015 runway capacity and then compared the results to the delay profile that was the basis for the 2008 Order. Operations in 2015 were down by 8 percent, total minutes of arrival delays went from 16,100 to 10,100 for a 37 percent decrease, mean arrival delays decreased from 24.0 minutes to 16.3 minutes, and mean departure delays from 18.0 minutes to 14.2 minutes.5

The FAA also reviewed scheduled flights at EWR over the last few years. Scheduled demand was routinely below the 81 hourly scheduling limits in the Order, even during the busiest early morning, afternoon, and evening hours. For example, in the 3 p.m. through 8:59 p.m. local hours, weekday scheduled demand in the May-August period averaged 71 flights per hour in 2011, 74 flights per hour in 2013, and 72 flights per hour in 2015.6 Early summer 2016 schedules reflect similar demand patterns. At the same time, the FAA denied requests for new flights as slots are allocated up to the scheduling limits. Carriers are generally maintaining historic slots and meeting the minimum usage rules under the Order; therefore, weekday slots in peak hours do not regularly revert to the FAA for reallocation. The result is scheduled demand that is well below the FAA scheduling limits and runway capacity at the airport to handle additional flights. This is unlike other FAA slot-controlled airports, which have significantly fewer differences between the number of allocated slots and the scheduled demand, especially in peak periods.

In light of the FAA's demand and capacity analysis at EWR, the FAA has determined that EWR does not warrant a Level 3 designation. The FAA's analysis demonstrates that runway capacity exists for additional operations. However, under a Level 3 designation, the FAA must deny requests from carriers to add or retime operations based on allocated slots rather than scheduled and actual operations, provided the carrier satisfies the minimum slot usage requirements. Further, the FAA simply cannot increase the scheduling limits to compensate for slots that are under-scheduled but meet the minimum usage rules, as this would require the FAA to determine that additional capacity exists for operations above the current scheduling limits.

The FAA also considered whether EWR should be re-designated as a Level 1 airport since EWR operated for many years without scheduling limits while nearby JFK and LGA were slot controlled. During this time, EWR provided access to the New York City area and, while delays were high compared to other airports, overall demand was generally consistent with runway capacity. However, there are practical limitations to the number of additional flights that EWR can accept from a runway and airport facilities perspective. Moreover, we expect there will be significant demand for access to EWR, given its location and that the JFK and LGA airports will remain slot-controlled airports. Thus, the FAA has determined that the Level 2 schedule facilitation process and its related principles of voluntary cooperation will best balance the anticipated demand with the practical limitations on the number of additional flights possible at EWR. Following the effective date of the Level 2 designation, the FAA will continue to review whether Level 2 is appropriate or whether other action might be needed. The FAA does not expect to make any airport level changes based on short-term airline schedule plans or resulting delays.

Consistent with existing FAA practice for schedule facilitation at Level 2 airports, under the Level 2 designation at EWR, the FAA will request and review airline schedules for the 6 a.m. to 10:59 p.m. period and either approve the request or work with carriers to achieve schedule adjustments as needed to avoid exceeding the airport's capacity. The success of Level 2 schedule facilitation procedures depends upon a number of factors delineated in the WSG. The FAA will apply the priorities for schedule facilitation outlined in the WSG. In particular, priority will be given to carriers based on actual approved schedules and operations conducted in the previous corresponding season over new demand for the same timings.

Additionally, although there is some runway capacity available at EWR, approval of new or retimed operations must avoid significant scheduled peaking and allow for recovery to avoid causing a consistent level of unacceptable delay, which could necessitate a return to Level 3. The FAA intends, if necessary, to deny schedule submissions that exceed the declared airport runway capacity and to offer alternative times to carriers. The WSG recognizes that some carriers might operate at times without approval from the airport's schedule facilitator. Consistent with the WSG, carriers would not receive historic status for such flights if the airport level changes from Level 2 to Level 3.

Finally, while the FAA is responsible for managing the airport's runway capacity, there are terminal, gate, and other operational factors that may require schedule adjustments. The FAA recognizes that the entry at EWR has been limited by runway slot availability for the last 8 years and new entry and growth by incumbent carriers is expected. The Port Authority of New York and New Jersey (Port Authority) currently reviews schedules for international passenger flights operating at Terminal B. A carrier must separately obtain approval from the Port Authority for Terminal B flights and request runway slots from the FAA under the current Level 3 designation Order. After the effective date for the Level 2 designation, carriers would continue to work with the Port Authority to synchronize with the relevant terminals and gates at EWR to the extent practicable. Under existing practice, the FAA regularly works with the Port Authority and carriers to reconcile differences between available terminal/gate and runway times. The FAA expects this process to continue under the Level 2 designation based on impacts to the availability of facilities. This necessary de-conflicting of carriers' requested terminal/gate and runway schedules is likely to be most significant in the initial transition from Level 3 to Level 2 in the Winter 2016 and Summer 2017 seasons.

The FAA conducted an environmental screening for potential impacts to noise and air emissions relative to the change of the EWR designation from Level 3 to Level 2. Based on the screening, the FAA has determined that this action may be categorically excluded from further environmental analysis according to FAA Order 1050.1, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.6.f. Specifically, paragraph 5-6.6.f states that “Regulations, standards, and exemptions (excluding those which if implemented may cause a significant impact on the human environment)” are categorically excluded from further environmental review.

The FAA conducted noise screening of the proposed action using Area Equivalent Method and determined that the action does not have the potential to cause a significant impact on noise levels of noise sensitive areas. In addition, the FAA conducted an analysis of air emissions using Aviation Environmental Design Tool and determined that the action does not have the potential to cause a significant impact on air quality or a violation of Federal, state, tribal, or local air quality standards under the Clean Air Act, 42 U.S.C. §§ 7401-7671q. Therefore, implementation of the airport level change is not expected to result in significant adverse impacts to the human environment. The implementation of this action is not expected to result in any extraordinary circumstances in accordance with FAA Order 1050.1. A copy of the categorical exclusion has been placed in the docket associated with this action.

The FAA will continue to regularly review and monitor performance at EWR, as well as carrier compliance with FAA-approved schedules. The FAA will continue to review data on actual operations, including the number of hourly and daily air traffic operations, runway capacity and utilization, aircraft fleet mix, scheduled and unscheduled demand, on-time performance relative to schedule, the number and duration of flight arrival and departure delays, airfield or other capacity changes, and air traffic control procedures. The FAA will publish a notice in April, 2016 announcing the schedule submission deadline and the declared runway capacity limits for the Winter 2016 scheduling season.

The FAA expects that delays at EWR will increase over current levels as flights are added, but an incremental increase in delays would not necessarily mean the FAA would revert to Level 3. The FAA's objective while working with carriers under the Level 2 process is to appropriately balance and maximize the use of the available runway capacity at EWR while maintaining an acceptable level of delay.

On July 28, 2015, the Department published a notice of proposed rulemaking (NPRM) to update its FOIA and Privacy Act rules contained in 22 CFR part 171. See 80 FR 44898, and the discussion therein.

This rulemaking responds to public comments and finalizes the rule. The rule is finalized as published in the NPRM, except for minor format edits; modifications, as indicated below, in response to public comments; and the addition of one clause to § 171.24(a), which codifies a longstanding provision of the Privacy Act (5 U.S.C. 552a(c)(3)), and which was inadvertently omitted from the NPRM. Since § 171.24(a) is substantially the same as 5 U.S.C. 552a(c)(3) in the Privacy Act itself, it need not be published for comment.

The Department would like to thank the members of the public who invested time in reviewing the proposed changes to the FOIA and Privacy Act regulations, and for providing very useful feedback.

The first commenter expressed concern about the proposal for the Department to charge a fee of 15 cents per page of duplication. The commenter pointed out that present day photocopying and scanning is relatively cheap, and expressed a belief that the Department's lease arrangements reflect a significantly lesser per page cost than 15 cents; in addition, he stated that other agencies' costs vary and might be lower, and no evidence was provided on how the Department formulated the fee. He stated that some other agencies have lowered duplication costs in their regulations in the last two years to be in line with actual direct costs.

The fee charged for photocopying at the Department is 15 cents per page, which is charged at a standard rate throughout the Department for copying services. This charge is based on the costs calculated by examining paper costs, machinery, and services provided to produce a photocopy. Other agencies and departments charge FOIA duplication fees that range from five cents to twenty cents per page. The Department's duplication fee of fifteen cents per page is in line with what other agencies and departments charge for duplication. For this reason, the Department declines to change the duplication fee as suggested.

This comment expressed the following six points:

1. In proposed § 171.11, Processing requests, the proposed regulations state that a requester “shall be considered to have agreed to pay applicable fees up to $25, unless a fee waiver is granted.” The commenters believe that the Department should follow Department of Justice's regulations and provide that no fees will be assessed if the fees are under $25, which is their approximate cost of collecting fees. Also, they believe the Department should at least limit the presumption to instances in which a fee waiver has not been requested, per the Department of Justice's superseded regulations.

The Department accepts the Justice Department's estimate that the cost to collect fees is approximately $25.00. The Department agrees to revise § 171.14, “Fees to be charged,” to state the current cost of collecting a fee is $25.00; therefore, the Department will process requests without assessing fees up to $25.00. The Department will also revise this section to state that the Department will attempt to notify the requester if fees are estimated to exceed $25.00, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated.

2. In proposed § 171.11(f), the commenters are concerned that the appeal of expedited processing is submitted to the Director of IPS, the same Director who is responsible for issuing initial determinations on requests. The regulations should clearly state if the Director is receiving the appeals on behalf of the Appeal Review Panel.

The Department's Appeals Review Panel does not review appeals from denials of expedited processing. See 22 CFR 171.13(a). For this reason, the Department will not revise § 171.11(f) as suggested. The Department will revise § 171.11(a) to state that the Division Chief, Requester Liaison Division, in the Office of Information Programs and Services, will issue all initial decisions on whether a request is valid or perfected, and whether to grant or deny requests for a fee waiver and for expedited processing.

3. The acknowledgement letter in subsection (i) should include the receipt date, to assist requesters with determining an agency's statutory response deadline.

The Department will revise § 171.11(e), “Receipt of request”, to include a subsection that states that upon receipt IPS will send an acknowledgement letter to the requester that will identify the date of receipt of the request in the proper component, as identified in § 171.11(a), and the case tracking number. Subsection (i) sets forth the information that is available to a requester by contacting the FOIA Requester Service Center.

4. The Department's proposed consultation procedures in subsection (m) are limited to agencies only. They do not account for consultations that may be required with the Office of the White House Counsel. The commenters believe the regulations should address its FOIA-related consultations with the Office of White House Counsel.

Section 171.11(m) “Referrals and Consultations” states that the Department will refer documents created by another agency to that agency for a release determination. In practice, the implementation of this section turns on the identity of the originator of a document and not on whether the originator works in an agency or department or other governmental entity. The Department will revise subsection (m) as follows: “If the Department determines that Department records retrieved as responsive to the request are of interest to another agency or Federal government office, it may consult with the other agency or office before responding to the request.”

5. Business information. The Department should specify a minimum number of days that submitters will have to provide comments and to file a “reverse-FOIA” lawsuit, respectively. This is preferred over a “reasonable period of time”. The commenters recognize that circumstances might warrant providing one submitter with more time than another. They believe five business days would be considered a “reasonable period of time,” as Executive Order 12600 requires.

The Department declines to revise this subsection as suggested, because providing some flexibility to submitters in seeking input in response to a notice issued under this subsection ensures the best outcome for the requesters, the submitters, and the Department.

6. In § 171.16, Waiver or reduction of fees, the commenters are concerned with the Department responding to fee waiver appeals within “30 working days” from the date of receipt. Unless unusual circumstances exist, an agency must make a determination on a fee waiver appeal within 20 working days. Furthermore, they ask for clarification on who will adjudicate the fee waiver appeals, as it is presumably not the “Director of IPS” who issues fee determinations.

The Department will revise § 171.16(e) to state that the Department must respond to an appeal of a denial of a fee waiver or fee reduction request within 20 working days. The Department's Appeals Review Panel does not review appeals from a denial of a fee waiver. See 22 CFR 171.13(a). The Department will revise § 171.16 (e) to state that the Division Chief of the Requester Liaison Division in IPS will issue all initial decisions on whether to grant or deny requests for a fee waiver and that appeals should be directed to the Director of IPS.

The third public comment was submitted by the National Archives and Records Administration's Office of Government Information Services (OGIS). OGIS suggested adding to the end of § 171.13(d) the following or similar language: “If the requester elects to engage in the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration, the Department of State must actively engage as a partner to the mediation process in an attempt to resolve the dispute.”

The Department understands the importance of resolving disputes between FOIA requesters and Federal agencies, and will revise this subsection as follows: “When the Department of State engages in the mediation services offered by OGIS, it will work in good faith as a partner to the mediation process in an attempt to resolve the dispute. The Department reserves its right to decide on a case-by-case basis whether to enter into formal mediation offered by OGIS.”

This comment, from Cause of Action, suggests that the Department revise its definition of a representative of the news media, following an opinion of the District of Columbia Circuit Court in Cause of Action v. Federal Trade Commission. While the Department's proposed rule states that those requesting news media status “make their products available to the general public,” Cause of Action requests that the Department include a non-exhaustive list of the methods an agency must consider when analyzing this element of the test, including: “newsletters, press releases, press contacts, a Web site, and planned reports.”

Furthermore, Cause of Action raised concern over the “middleman standard” not being included in the Department's regulatory definition. Cause of Action stated that the D.C. Circuit Court “disagreed with the suggestion that a public interest advocacy organization cannot satisfy the statute's distribution criterion because it is `more like a middleman for dissemination to the media than a representative of the media itself '. . . There is no indication that Congress meant to distinguish between those who reach their ultimate audiences directly and those who partner with others to do so.” Cause of Action believes that the final rule should draw a distinction between those that market FOIA information for their direct economic benefit and the Court's direction that “public interest advocacy organizations” can “partner with others” to disseminate their distinct works.

The regulation states that the examples provided regarding who may qualify for news media status are not all-inclusive; therefore, the Department does not believe that providing another non all-inclusive list would help shed light on the process the Department employs.

The Department agrees that this information may be helpful for requesters to understand how IPS analyzes a request for representative in the news media status. For this reason, the Department will add this information to its public FOIA Web site.

In the second comment (regarding the “middleman standard”), the Office of Management and Budget (“OMB”) has policy-making responsibility for issuing fee guidance. For this reason, the Department defers to OMB with regard to this suggestion.

The Department published this rule under the provisions of 5 U.S.C. 553, with a 60-day public comment period.

The Department of State, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

The Department has considered this rule in light of these Executive Orders and affirms that this regulation is consistent with the guidance therein. The benefits of this rulemaking for the public include, but are not limited to, providing an up-to-date procedure for requesting information from the Department. The Department is aware of no cost to the public from this rulemaking.

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

For the reasons set forth in the preamble, 22 CFR part 171 is revised to read as follows:

On November 19, 2015, BIA published a final rule addressing rights-of-way on Indian land and BIA land. See 80 FR 72492. In a document published December 21, 2015, BIA extended the effective date of the rule to March 21, 2016, in response to requests from Tribes and industry. See 80 FR 79258. BIA again extended the effective date of the final rule to April 21, 2016. See 81 FR 14976 (March 21, 2016).

In § 169.7(b), the final rule states that its procedural provisions apply to rights-of-way that were granted prior to the final rule's effective date (with certain exceptions). Likewise, in § 169.7(c)(2), the final rule states that if an application for a right-of-way was pending as of the effective date of the final rule, and the applicant chose not to withdraw and resubmit the application on or after the final rule's effective date, the procedural provisions of the final rule apply (with certain exceptions) once BIA issues the right-of-way grant. In either situation, if the procedural provisions of the final rule conflict with the explicit provisions of the right-of-way grant or statute authorizing the right-of-way document, then the provisions of the right-of-way grant or authorizing statute will apply. In short, if a right-of-way was granted prior to the effective date of the rule, or an application for a right-of-way was pending as of the effective date of the rule, only the procedural provisions of the final rule apply to those grants and the other provisions do not apply to those grants. If an existing right-of-way is amended, assigned, or mortgaged, on or after the effective date of the rule, the final rule's procedural provisions apply to that amendment, assignment, or mortgage. An “existing right-of-way” is a grant issued before the effective date of the final rule, or a grant for which the application was pending on the effective date of the final rule is issued after the effective date of the final rule.

This document provides guidance regarding which provisions BIA considers procedural (and thus applicable to all right-of-way grants, regardless of when issued, and applicable to all amendments, assignments, and mortgages of existing right-of-way grants, unless the procedural provision conflicts with the explicit provisions of the right-of-way grant or authorizing statute).

• § 169.12 How does BIA provide notice to the parties to a right-of-way?

• § 169.13 May decisions under this part be appealed?

• [No procedural provisions] Note: If you have a service line that is not in compliance with the older version of the regulations, you may be in trespass.

• § 169.107 Must I obtain tribal or individual Indian landowner consent for a right-of-way across Indian land? Note: This provision is procedural only with regard to the grant of an amendment, assignment, or mortgage of an existing right-of-way after the effective date of the final rule; otherwise, it is prospective.

• § 169.109 Whose consent do I need for a right-of-way when there is a life estate on the tract? Note: This provision is procedural only with regard to the grant of an amendment, assignment, or mortgage of an existing right-of-way after the effective date of the final rule; otherwise, it is prospective.

• § 169.119 Will BIA notify a grantee when a payment is due for a right-of-way?

• § 169.127 Is a new right-of-way grant required for a new use within or overlapping an existing right-of-way?

• § 169.129 What is required if the location described in the original application and grant differs from the construction location?

• § 169.202 Under what circumstances will a grant of right-of-way be renewed?

• § 169.203 May a right-of-way be renewed multiple times?

• § 169.204 May a grantee amend a right-of-way?

• § 169.205 What is the approval process for an amendment of a right-of-way?

• § 169.206 How will BIA decide whether to approve an amendment of a right-of-way?

• § 169.207 May a grantee assign a right-of-way?

• § 169.208 What is the approval process for an assignment of a right-of-way?

• § 169.209 How will BIA decide whether to approve an assignment of a right-of-way?

• § 169.210 May a grantee mortgage a right-of-way?

• § 169.211 What is the approval process for a mortgage of a right-of-way?

• § 169.212 How will BIA decide whether to approve a mortgage of a right-of-way?

• § 169.301 When will a right-of-way document be effective?

• § 169.302 Must a right-of-way be recorded?

• § 169.303 What happens if BIA denies a right-of-way document?

• § 169.304 What happens if BIA does not meet a deadline for issuing a decision on a right-of-way document?

• § 169.305 Will BIA require an appeal bond for an appeal of a decision on a right-of-way document?

• § 169.402 Who may investigate compliance with a right-of-way?

• § 169.404 What will BIA do about a violation of a right-of-way grant?

• § 169.405 What will BIA do if the grantee does not cure a violation of a right-of-way grant on time?

• § 169.406 Will late payment charges, penalties, or special fees apply to delinquent payments due under a right-of-way grant?

• § 169.407 How will payment rights relating to a right-of-way grant be allocated?

• § 169.408 What is the process for cancelling a right-of-way for non-use or abandonment?

• § 169.409 When will a cancellation of a right-of-way grant be effective?

• § 169.410 What will BIA do if a grantee remains in possession after a right-of-way expires or is terminated or cancelled?

• § 169.411 Will BIA appeal bond regulations apply to cancellation decisions involving right-of-way grants?

• § 169.412 When will BIA issue a decision on an appeal from a right-of-way decision?

• § 169.415 How will BIA conduct compliance and enforcement when there is a life estate on the tract?

All other provisions of the final rule are general statements or apply prospectively only. A chart providing more information on each provision and how it applies can be viewed at: http://www.bia.gov/WhoWeAre/AS-IA/ORM/RightsofWay/index.htm.

Electronic and Facsimile Availability

This document and additional information concerning OFAC are available from OFAC's Web site (www.treasury.gov/ofac). Certain general information pertaining to OFAC's sanctions programs also is available via facsimile through a 24-hour fax-on-demand service, tel.: 202/622-0077.

On November 22, 2015, the President issued Executive Order 13712 (80 FR 73633, November 25, 2015) (E.O. 13712), invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706). OFAC is issuing the Burundi Sanctions Regulations, 31 CFR part 554 (the “Regulations”), to implement E.O. 13712, pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13712. A copy of E.O. 13712 appears in Appendix A to this part.

The Regulations are being published in abbreviated form at this time for the purpose of providing immediate guidance to the public. OFAC intends to supplement this part 554 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance, and additional general licenses and statements of licensing policy. The appendix to the Regulations will be removed when OFAC supplements this part with a more comprehensive set of regulations.

Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control adds part 554 to 31 CFR chapter V to read as follows:

I. Table of Abbreviations AHP Above Head of Passes BNM Broadcast Notice to Mariners CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register MM Mile Marker NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Public Participation and Comments

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Documents mentioned in this rule, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

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 the Coast Guard received information about this fireworks display on or about January 27, 2016. Due to the risks associated with an aerial barge-based fireworks display taking place on and over the waterway, a safety zone is needed. It would be impracticable to publish a NPRM because the safety zone must be established on April 12, 2016. This rule provides for a comment period and comments received will be reviewed and analyzed to assist the Coast Guard in future rulemakings establishing similar safety zones. The Coast Guard will notify the public and maritime community that the safety zone will be in effect and of its enforcement periods via broadcast notices to mariners (BNM).

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. Providing a full 30-days notice would be impracticable because immediate action is needed to protect persons and property from the hazards associated with an aerial fireworks display taking place on and over the waterway.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. On April 12, 2016, a fireworks display will be launched from a barge positioned in the waterway adjacent to Mardi Gras World, an event venue located at MM 96.2 AHP on the Lower Mississippi River, in a high commercial traffic area near a tight river bend. Therefore, the Coast Guard has determined that a safety zone is needed to ensure safe navigation for all those in the vicinity of these fireworks displays.

The Coast Guard is establishing a temporary safety zone on the Lower Mississippi River, for one hour during the evening of April 12, 2016, to occur between 6 and 11 p.m. The safety zone will include the entire width of the Lower Mississippi River in New Orleans, LA from MM 95.7 to MM 96.7 AHP. Entry into this zone is prohibited unless permission has been granted by the COTP New Orleans, or a designated representative.

The COTP New Orleans will inform the public through BNMs of the one-hour enforcement period for the safety zone as well as any changes in the planned schedule. Mariners and other members of the public may also contact Coast Guard Sector New Orleans Command Center to inquire about the status of the safety zone, at (504) 365-2200.

We developed this rule after considering numerous statutes and Executive order 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 rule 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 safety zone will only restrict navigation on the Lower Mississippi River from MM 95.7 to MM 96.7 AHP, for approximately one hour on April 12, 2016. Due to the limited scope and short duration of the safety zone, the impacts on routine navigation are expected to be minimal.

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.

This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit the safety zone area during the periods of enforcement. The safety zone will not have a significant economic impact on a substantial number of small entities because they are limited in scope and will be in effect for a short period of time. Before the enforcement periods, the Coast Guard COTP will issue maritime advisories widely available to waterway users. Deviation from the safety zone established through this rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 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 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 establishment of a temporary safety zone for all waters of the Lower Mississippi River from MM 95.7 to MM 96.7 AHP. 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.

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

Chapter 18 of title 38, United States Code, provides for benefits for certain birth children of Vietnam veterans and veterans of covered service in Korea who have been diagnosed with spina bifida, except spina bifida occulta, and certain other birth defects. These benefits include: (1) Monthly monetary allowances for various disability levels; (2) health care; and (3) vocational training and rehabilitation. VA's regulations concerning health care for children authorized under this chapter are published at 38 CFR 17.900 through 17.905.

On May 15, 2015, VA published a proposed rule to more clearly define the types of healthcare VA provides, including day healthcare and health-related services, which VA would define as homemaker or home health aide services that provide assistance with Activities of Daily Living or Instrumental Activities of Daily Living that have therapeutic value; and to make changes to the list of health care services that require preauthorization by VA. (80 FR 27878). The comment period closed on June 14, 2015. We received ten comments, which were all generally supportive. However, the commenters raised several issues regarding beneficiaries covered by this rulemaking, specific services provided, definitions included in the proposed rule, and provision of health care through non-VA care (care in the community). We respond to these comments below and adopt as final the proposed rule, without change.

One commenter stated that children of Vietnam veterans who have spina bifida may have children of their own, and VA should also provide care to grandchildren of Vietnam veterans who have spina bifida. The commenter stated that according to the US National Library of Medicine, spina bifida is likely caused by the interaction of multiple genetic and environmental factors, and that genetic changes in individuals with spina bifida may increase the risk of neural tube defects in the subsequent generation. The commenter stated that if a child with spina bifida can establish that the grandfather was exposed to herbicides during the Vietnam War, that child should also be covered.

Another commenter stated that children of Air Force active duty servicemembers and reservists who were exposed to Agent Orange while flying C-123 aircraft both during the Vietnam War and the post-war period should also be covered. The commenter noted that these servicemembers flew out of air bases in Thailand and Clark Air Base in the Philippine Islands, and some of the airplanes potentially contaminated by Agent Orange remained in service after the war.

In response to the first comment, VA does not have statutory authority to provide health care to grandchildren of Vietnam veterans who may have spina bifida. VA's authority to provide health care to children with spina bifida or other covered birth defects is limited by statute. A “child” covered under this statute is defined at 38 U.S.C. 1831(1) as an individual, regardless of age or marital status, who is the natural child of a Vietnam veteran, and was conceived after the date on which that veteran first entered the Republic of Vietnam during the Vietnam era; or, is the natural child of a veteran of covered service in Korea (as determined for purposes of 38 U.S.C. 1821), and was conceived after the date on which that veteran first entered service described in 38 U.S.C. 1821(c).

With respect to the second comment, VA also does not have the authority to extend benefits under 38 U.S.C. Chapter 18 to children of veterans who did not serve in the Republic of Vietnam during the Vietnam era or who did not have certain service in Korea. “Vietnam veteran” is defined at 38 U.S.C. 1831(2) to mean an individual who performed active military, naval, or air service in the Republic of Vietnam during the Vietnam era, without regard to the characterization of that individual's service. The “Vietnam era” is defined at 38 U.S.C. 1831(3) as ending on May 7, 1975. A veteran of covered service in Korea is any individual, without regard to the characterization of that individual's service, who served in the active military, naval, or air service in or near the Korean demilitarized zone (DMZ), as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971; and is determined by VA, in consultation with the Department of Defense, to have been exposed to an herbicide agent during such service in or near the Korean demilitarized zone. 38 U.S.C. 1821(c). To the extent a veteran who flew in a C-123 is also a veteran with covered service defined in 38 U.S.C. 1831(2) and has a child covered by 38 U.S.C. 1831(1), however, the child would be eligible for benefits under Chapter 18.

In further response to the comment regarding reservists and servicemembers who flew in C-123 aircraft, we note that VA does have authority in certain other circumstances to extend benefits to veterans who did not serve in those defined areas or time periods, but may have been exposed to Agent Orange. This authority is unrelated to benefits furnished to eligible children under 38 U.S.C. Chapter 18 but we briefly discuss it here because a recent VA rulemaking is relevant to the second public comment. On June 19, 2015, VA published an interim final rule (80 FR 35248) extending the presumption of herbicide exposure and presumption of service connection to individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The June 2015 interim final rule thus covers servicemembers who were potentially exposed to Agent Orange during periods after the end of the Vietnam War, and in regions outside of Vietnam. VA determined that the presumption of service connection should be extended to these servicemembers based on a January 2015 report from the National Academies of Sciences, Engineering, and Medicine's Institute of Medicine (IOM) titled “Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft.” In that report the IOM noted that between 1972 and 1982, approximately 1,500 to 2,100 U.S. Air Force Reserve personnel trained and worked on C-123 aircraft that previously had been used to spray herbicides, including Agent Orange, during Operation Ranch Hand. Based on a review of the evidence, IOM concluded that it was plausible that Air Force reservists flying C-123 aircraft used in Operation Ranch Hand were exposed to Agent Orange.

We make no changes based on these comments.

One commenter asked whether the proposed addition of day health care to the list of health care services would require the beneficiary to transfer to a group home. In the proposed rule we defined day health care to mean a therapeutic program prescribed by an approved health care provider that provides necessary medical services, rehabilitation, therapeutic activities, socialization, nutrition, and transportation services in a congregate setting. Day health care services contemplated under this proposal are non-residential and equivalent to adult day health care provided to disabled veterans under 38 CFR 17.111(c)(1). These would not require the beneficiary to relocate to a group home. The essential features are the therapeutic focus of the day health care services and provision of these services in a congregate setting. The addition of day health care to the list of covered health care services augments rather than contracts the options available. Day health care is an alternative care setting that can allow some beneficiaries who require long term care services to remain in their homes rather than be institutionalized in a nursing home. Such beneficiaries typically require support for some, but not all, Activities of Daily Living (ADLs), such as bathing, dressing or feeding. In many cases, a family member may provide the beneficiary with much of their care, but require additional support for some ADLs. By filling these gaps, day health care can allow these beneficiaries to remain in their homes and communities for additional months or even years. Day health care programs can help caregivers to meet their other professional and family obligations, or provide a well-deserved respite, while their loved ones are participating in the program.

Two commenters urged VA to allow payment for homemakers and home health aides to shop for groceries outside of the home. Homemaker and home health aide (H/HHA) services are health-related services. VA provides health-related services, including H/HHA services, to veterans under 38 U.S.C. 1720C. We proposed to provide H/HHA services to spina bifida beneficiaries similar to that provided to veterans, to the extent allowed by law. Under 38 U.S.C. 1720C, VA may provide H/HHA to veterans in “noninstitutional settings.” This includes services performed outside the home, such as grocery shopping and escorting the veteran to necessary appointments. VA may not provide such services to beneficiaries under the Spina Bifida Health Care Benefits Program, health-related services for spina bifida beneficiaries are included as a component of home care. Home care is defined at 38 U.S.C. 1803(c)(3) as outpatient care, habilitative and rehabilitative care, preventive health services, and health-related services furnished to an individual in the individual's home or other place of residence. This definition specifically limits the provision of health-related services under 38 U.S.C. 1803 to those services furnished within the home or other place of residence. Grocery shopping, which is an H/HHA type of health-related service performed outside the home or other place of residence, cannot be provided due to this statutory restriction that applies to the Spina Bifida Health Care Benefits Program, but not to VA's authorities to provide care to veterans.

One commenter supported the proposed rule, but urged us to amend the definition of “other place of residence.” As noted above, home care, including health-related services such as H/HHA services, is provided in the individual's home or other place of residence. We proposed to define other place of residence to include an assisted living facility or residential group home. Assisted living facilities and residential group homes are appropriate for individuals who do not require the level of care provided in a nursing home, and VA believes that providing home care in assisted living facilities and residential group homes will allow individuals to retain a greater level of independence and quality of life, and delay or prevent any need for nursing home care. While VA may provide services to an individual residing in an assisted living facility or residential group home, we do not have the statutory authority to pay for placement in such facility. The types of alternatives to home care that VA may provide under 38 U.S.C. 1803 are nursing home care, hospital care, and respite care. The commenter suggested amending the definition of “other place of residence” to state that “placement in such facility or home is covered to the extent that the facility or home provides covered care or services.” The commenter stated that this would clarify that VA can provide for placement in an assisted living facility or residential group home to the extent that such location provides aspects of care or services covered under 38 U.S.C. 1803. We do not agree. Payment for placement in an assisted living facility or residential group home is distinctly different than providing for care and services rendered in such facility. While VA cannot do the former, we may do the latter to the extent allowed by law. VA believes that the suggested language would lead to confusion as it implies that VA can cover, to some extent, placement in an assisted living facility or residential group home.

One commenter asked for clarification of what long-term care means as that term applies to H/HHA services. Specifically, the commenter asked whether a spina bifida beneficiary would be entitled to receive H/HHA services around the clock and indefinitely. One commenter asked whether there would be a limit on the number of hours of H/HHA services that a beneficiary may receive. As noted above, H/HHA services provided to spina bifida beneficiaries are similar to that provided to veterans, to the extent allowed by law. Under 38 U.S.C. 1720C, VA is authorized to provide veterans with health-related services in a non-institutional setting. The total cost of providing such services or in-kind assistance to any veteran in any fiscal year may not exceed 65 percent of the cost that would have been incurred by VA during that fiscal year if the veteran had been furnished, instead, nursing home care under 38 U.S.C. 1710. See 38 U.S.C. 1720C(d). The same limitation is applied currently to H/HHA services provided to spina bifida beneficiaries and will continue to apply under this rule. Consistent with this limitation, H/HHA services will be provided to spina bifida beneficiaries if medically necessary.

The commenter also requested clarification on what type of health care provider must prescribe H/HHA services. These services must be prescribed by an approved health care provider. Under § 17.900, “approved health care provider” means a health care provider currently approved by the Center for Medicare and Medicaid Services (CMS), Department of Defense TRICARE Program, Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), Joint Commission, or currently approved for providing health care under a license or certificate issued by a governmental entity with jurisdiction.

The commenter also raised several procedural issues that are beyond the scope of this rulemaking.

We make no changes based on these comments.

One commenter stated that health care should be provided directly by VA health care providers rather than through care in the community. However, children with covered birth defects or spina bifida require specialty care that may not be available in a VA medical center, and requiring the beneficiary to commute to a VA medical facility could impose an undue burden on the caregiver. Here, care in the community ensures that the beneficiary receives necessary specialty medical care in a timely manner, and eliminates the need to travel to the nearest VA medical center to obtain that care.

Based on the rationale set forth in the preamble to the proposed rule and in this preamble, VA is adopting the proposed rule as a final rule, with no changes.

Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. See also 5 CFR 1320.8(b)(2)(vi).

This final rule will impose the following amended information collection requirements. Preauthorization from VA under 38 CFR 17.902(a) is required for certain services or benefits under §§ 17.900 through 17.905. Information collection under this rule is approved under OMB control number 2900-0219. VA is making a minor modification to this information collection by requiring preauthorization for mental health services only for outpatient mental health services, and only when those services are provided in excess of 23 visits in a calendar year. VA also adds day health care provided as outpatient care and homemaker services to the list of services or benefits that must receive preauthorization. VA anticipates that the decrease in the number of beneficiaries that must request preauthorization for mental health services will be offset by the number of beneficiaries that will request preauthorization for day health care. Therefore, we believe that there will be little, if any, change in the total burden hours as a result of this modification. As required by the 44 U.S.C. 3507(d), VA submitted these information collection amendments to OMB for its review, and the information collection is pending OMB approval. Notice of OMB approval for this information collection will be published in a future Federal Register document.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

There are no Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert D. Snyder, Chief of Staff, Department of Veterans Affairs, approved this document on March 31, 2016, for publication.

For the reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 17 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0338 and EPA-HQ-OPP-2015-0339 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 6, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0338 and EPA-HQ-OPP-2015-0339, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of July 17, 2015 (80 FR 42462) (FRL-9929-13), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 5F8346 and PP 5F8356) by Gowan Company, P.O. Box 5569, Yuma, AZ 85366-5569. The petitions requested that tolerances currently listed in 40 CFR 180.448 be amended for residues of the insecticide hexythiazox and its metabolites containing the (4-chlorophenyl)-4-methyl-2-oxo-3-thiazolidine moiety, in or on citrus, dried pulp at 0.6 parts per million (ppm); citrus, oil at 26 ppm; fruit, citrus, group 10 at 0.6 ppm; cotton gin byproducts at 15 ppm; and cotton, undelinted seed at 0.5 ppm. That document referenced a summary of the petitions prepared by Gowan Company, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has revoked citrus, dried pulp tolerance as it is covered by the recommended fruit, citrus, group 10-10 tolerance. For citrus oil, EPA revised the tolerance to 25 ppm and for cotton undelinted seed to 0.4 ppm. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for hexythiazox including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with hexythiazox follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Hexythiazox has low acute toxicity by oral, dermal and inhalation routes of exposure. It is not a dermal irritant, is negative for dermal sensitization and produces only mild eye irritation. Hexythiazox is associated with toxicity of the liver and adrenals following subchronic and chronic exposure to dogs, rats and mice, with the dog being the most sensitive species. The prenatal developmental studies in rabbits and rats and the two-generation reproduction study in rats showed no indication of increased susceptibility to in utero or postnatal exposure to hexythiazox. Reproductive toxicity was not observed. There is no concern for immunotoxicity or neurotoxicity following exposure to hexythiazox. The toxicology database for hexythiazox does not show any evidence of treatment-related effects on the immune system. Hexythiazox is classified as “likely to be carcinogenic to humans;” however, the weight of evidence indicates that assessing chronic risk using the chronic population adjusted dose will be protective for any potential carcinogenic effects. Since the effects seen in the study that serves as the basis for the chronic PAD occurred at doses substantially below the lowest dose that induced tumors, the chronic PAD is considered protective of all chronic effects including potential carcinogenicity.

Specific information on the studies received and the nature of the adverse effects caused by hexythiazox as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document: Hexythiazox. Human Health Risk Assessment to Support Amended Uses on Cotton and Citrus in docket ID number EPA-HQ-OPP-2015-0338 or EPA-HQ-OPP-2015-0339.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm. A summary of the toxicological endpoints for hexythiazox used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to hexythiazox, EPA considered exposure under the petitioned-for tolerances as well as all existing hexythiazox tolerances in 40 CFR 180.448. EPA assessed dietary exposures from hexythiazox in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for hexythiazox; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the U.S. Department of Agriculture's 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA used tolerance-level residues, assumed 100 percent crop treated (PCT), and incorporated DEEM default processing factors when processing data were not available.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to hexythiazox. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for hexythiazox. Tolerance-level residues and/or 100% CT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for hexythiazox in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of hexythiazox. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Surface Water Concentration Calculator, the estimated drinking water concentrations (EDWCs) of hexythiazox for chronic exposures for non-cancer assessments are estimated to be 4.3 parts per billion (ppb) for surface water. Since groundwater residues are not expected to exceed surface water residues, surface water residues were used in the dietary risk assessment. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Hexythiazox is currently registered for the following uses that could result in residential exposures: Ornamental plantings, lawns, recreational sites such as campgrounds and golf courses, turf, and fruit and nut trees in residential settings. EPA assessed residential exposure using the following assumptions:

Residential handler exposures are expected to be short-term (1 to 30 days) via either the dermal or inhalation routes of exposures. Intermediate-term exposures are not likely because of the intermittent nature of applications by residential applicators. Since hexythiazox does not pose a significant dermal risk, a quantitative dermal risk assessment was not performed and handler margins of exposure (MOE) were calculated for the inhalation route of exposure only.

Both adults and children may be exposed to hexythiazox residues from contact with treated lawns or treated residential plants. Post-application exposures are expected to be short-term (1 to 30 days) in duration for most exposure scenarios, and intermediate-term (1 to 6 months) in duration for soil ingestion only due to the aerobic soil metabolism half-life for hexythiazox. Adult post-application exposures were not assessed since no quantitative dermal risk assessment is needed for hexythiazox and inhalation exposures are typically negligible in outdoor settings. The exposure assessment for children included incidental oral exposure resulting from transfer of residues from the hands or objects to the mouth, and from incidental ingestion of soil.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found hexythiazox to share a common mechanism of toxicity with any other substances, and hexythiazox does not appear to produce a toxic metabolite. For the purposes of this tolerance action, therefore, EPA has assumed that hexythiazox does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. The prenatal development studies in rabbits and rats and the two-generation reproduction study in rats showed no indication of increased susceptibility to in utero and/or postnatal exposure to hexythiazox.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for hexythiazox is complete.

ii. There is no indication that hexythiazox is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that hexythiazox results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to hexythiazox in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by hexythiazox.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate- and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect, resulting from a single oral exposure, was identified and no acute dietary endpoint was selected. Therefore, hexythiazox is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to hexythiazox from food and water will utilize 81% of the cPAD for children 1 to 2 years of age, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of hexythiazox is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Hexythiazox is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to hexythiazox.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,300 for children and 9,900 for adults. Because EPA's level of concern for hexythiazox is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Hexythiazox is currently registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to hexythiazox.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 1,500 for children and 9,900 for adults. Because EPA's level of concern for hexythiazox is a MOE of 100 or below, these MOEs are not of concern.

5. Aggregate cancer risk for U.S. population. As discussed in Unit III.C.1.iii., EPA concluded that regulation based on the chronic reference dose will be protective for both chronic and carcinogenic risks. As noted in this unit, there are no chronic risks of concern.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to hexythiazox residues.

Adequate enforcement methodology (high performance liquid chromatography method with ultraviolet detection (HPLC/UV)) is available to enforce the tolerance expression. This method is listed in the U.S. EPA Index of Residue Analytical methods under hexythiazox as method AMR-985-87.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established MRLs for residues of hexythiazox on citrus, fruits but not for cotton. The Codex plant residue definition is for hexythiazox as opposed to the U.S. definition which includes hexythiazox plus metabolites containing the (4-chlorophenyl)-4-methyl-2-oxo-3-thiazolidine moiety. The differences in U.S. and Codex residue definitions prohibits harmonization.

Although the petitioner requested an amended tolerance for citrus, dried pulp at 0.6, the Agency has determined that no such tolerance is necessary because that commodity is covered by the established citrus group 10-10 tolerance. The Agency is revising the tolerance for citrus oil to 25 ppm based on the following: By multiplying the citrus oil processing factor (104X) from the 2006 processing study (D334889, 07/03/2006, T. Bloem) by the highest average field trial (HAFT) residue for lemons (0.243 ppm) from the submitted citrus study since lemons are the citrus crop that produced the highest residues.

As noted in its most recent crop group rulemaking in the Federal Register of August 22, 2012 (77 FR 50617) (FRL-9354-3), EPA generally does not establish new tolerances under pre-existing crop groups that have been updated. EPA updated crop group 10 in 2010, making the new group 10-10. Therefore, EPA is establishing citrus fruit group tolerances for group 10-10, rather than crop group 10 as requested.

The Agency is amending the tolerance for cotton, undelinted seed at 0.4 ppm based on the available cotton data that reflect a national use at the label specified 35 day pre-harvest internal (PHI) to calculate the 0.4 ppm tolerance.

Therefore, tolerances are amended for residues of hexythiazox and its metabolites containing the (4-chlorophenyl)-4-methyl-2-oxo-3-thiazolidine moiety, in or on citrus, oil at 25 ppm; fruit, citrus, group 10-10 at 0.6 ppm; cotton, gin byproducts at 15 ppm; cotton, undelinted seed at 0.4 ppm. The current citrus, dried pulp tolerance is revoked because it is unnecessary due to the establishment of the fruit, citrus, group 10-10 tolerance.

This action amends tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

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

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Memorandum Opinion & Order (MO&O), ET Docket No. 13-49, FCC 16-24, adopted March 1, 2015, and released March 2, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. Prior to adoption of the First R&O, the FCC's rules permitted the certification of devices that operate in the 5.725-5.85 GHz (U-NII-3) band under two different rule sections (i.e. Sections 15.247 and 15.407). In some instances, and especially for devices that operate in point-to-point configurations with high gain antennas, the old Section 15.247 out-of-band emission (OOBE) limits were as much as 47 dB more permissive than the Section 15.407 OOBE limits and, therefore devices certified under the old limits were significantly more likely to create harmful interference to other operations. In the First R&O, the Commission adopted a consolidated set of rules for the 5.725-5.85 GHz band devices under the Section 15.407 U-NII rules to resolve interference issues to Terminal Doppler Weather Radar (TDWR) and other radar facilities in the adjacent band. In the First R&O, the Commission recognized that point-to-point systems utilizing high gain transmit antennas certified under the old Section 15.247 requirement may have to be modified to comply with the lower OOBE limit required for operation under Section 15.407. The Commission stated that manufacturers had the flexibility to determine how they should meet the lower OOBE limits, whether by reducing output power, decreasing the transmit antenna gain, or utilizing improved bandpass filters.

2. In response to the First R&O, the Commission received several petitions for reconsideration of its decision. Petitioners, mainly manufacturers and operators of high gain point-to-point communication systems, ask that the Commission's decision to impose more restrictive OOBE limits for devices in the U-NII-3 band should either be reversed or modified. The petitions express concerns regarding increased equipment costs, sustainability of existing service, and diminished performance of devices in the band. The petitioners' state that the limits adopted in the First R&O will prevent remote communities from receiving access to critical services and will render required upgrades costly and unobtainable. Numerous comments were filed in general support of the petitions requesting modification of the new OOBE limits.

3. Consensus Certification Proposal. This approach proposed multiple equipment certification requirements for point-to-point equipment intended to reduce the probability of harmful interference while minimizing burdens on manufacturers and users. Under this approach, users would verify that a device's location and transmission direction would not cause interference with TDWRs; allow equipment that supports dynamic frequency selection (DFS) in the U-NII-2C band to automatically allow increased emissions from the U-NII-3 band in frequency ranges where no radars are detected; and create a 5 km radius exclusion zone around each TDWR and prohibit the peak of a transmitter's antenna beam from intersecting with such exclusion zones.

4. Ubiquiti Proposal. Under this approach, for transmitters operating in the 5.725-5.85 GHz band, all out-of-band emissions be limited to a level of −27 dBm/MHz at 75 MHz beyond the band edge, increasing linearly to 10 dBm/MHz at 25 MHz beyond the band edge, and from 25 MHz beyond the band edge, increasing linearly to a level of 17 dBm/MHz at the band edge.

5. Joint Emissions Proposal. This approach closely resembled the Ubiquiti proposal, but would provide further relief from the OOBE limits in the 5 MHz closest to the band edge by allowing emissions to increase linearly to a maximum level of 27 dBm/MHz.

6. Broadcom Proposal. This approach mimics the Ubiquiti and the Joint Emissions Proposals, but would roll off emissions to −17 dBm/MHz at 75 MHz beyond the band edge. Broadcom believes the change is necessary because of an artifact that occurs outside of the in-band wanted emissions in certain of their current model chips. These spurious emissions are unintentional artifacts in the design of their current chipsets and did not create a compliance issue until the UNII rules were modified in 2014. Broadcom asserts that the mask can be modified to accommodate their circumstance while continuing to provide the same level of interference protection to TDWRs.

7. The Commission believes that the Joint Emissions Proposal best addresses the need for amended rules in the U-NII-3 band. It recognizes that, without further accommodation, point-to-point systems that utilize high gain transmit antennas with full permissible output power may not readily be able to comply with the OOBE limit adopted in the First R&O. Based on the record, in order for today's systems to suppress emissions to the degree required by the existing OOBE limits, they would require prohibitively expensive equipment modifications which would add an undue amount of weight to the devices. The Commission believes that the rules we are adopting here will allow point-to-point systems to operate, while avoiding harmful out of band interference, without excessive difficulty or cost. Unlike the Consensus Certification Proposal, which would apply different OOBE requirements based on a variety of situations, including the location of each installation relative to TDWRs, the approach adopted here will provide a single, consistent OOBE requirement for all equipment. Also unlike the Consensus Certification Proposal, the chosen approach will also avoid the need for onerous oversight by the Commission and it will, ultimately, better protect TDWRs against harmful interference because it is simpler to administer and enforce at the certification level. The Commission does not believe that Broadcom's difficulty in meeting the new limits for its current product is sufficient reason to further relax the OOBE limits. Instead, the Commission provides relief to all manufacturers by allowing some extra time to certify and to bring newly compliant devices into the marketplace.

8. As demonstrated in Ubiquiti's ex parte presentation, the proposed emission limits closely reflect the emissions mask seen in devices that are currently being sold, and thus the manufacturers may have a reduced need to undergo extensive redesigns to their equipment. Additionally, this revision should provide relief for wireless Internet service providers (WISPSs) and operators of long range point-to-point U-NII-3 equipment by reducing the need to redesign their networks because manufacturers will be able to use the rules adopted herein to design equipment that achieves link distances comparable to what they were able to achieve with the old rules. The Commission therefore adds new language for Section 15.407 (b)(4) that would provide relief from the OOBE limits adopted in the First R&O by permitting emissions to roll off linearly from 27 dBm/MHz at the band edge to a level of 15.6 dBm/MHz at 5 MHz from the band edge, then decreasing linearly to 10 dBm/MHz at 25 MHz from the band edge and continue to decrease linearly to a level of −27 dBm/MHz at all frequencies more than 75 MHz from band edge. The Commission adopts additional provisions in the first 5 MHz outside of the band edge because manufacturers have sufficiently demonstrated their inability to suppress their emissions to meet the Ubiquiti Proposal mask within this region. This approach will offer the needed relief to manufacturers, but will still provide a level of interference protection to adjacent band services that is greater than that provided in Section 15.247. This approach offers relief for users and manufacturers by relaxing the OOBE roll-off requirement outside of the TDWR band while maintaining the same level of interference protection within the TDWR band as specified under the rules the Commission adopted in the First R&O.

9. Dedicated Short Range Communications (DSRC) Systems are designed to operate under the FCC provisions for the Intelligent Transportation Systems (ITS) radio service in the 5.85-5.925 GHz band. Prior to the adoption of the First R&O, unlicensed devices were permitted in the adjacent 5.725-5.85 GHz band under two different rules, Sections 15.247 and 15.407. The Commission, in the First R&O, consolidated the rules for devices operating in the 5.725-5.85 GHz band and imposed the more stringent Section 15.407 OOBE limits, which provide more protection from interference to adjacent band incumbent spectrum users.

10. In its petition for reconsideration, the Association of Global Automakers, Inc. (Global) requests that the Commission suspend or reverse key decisions made in the First R&O because it failed to explain how its decision to allow additional, higher-powered, unlicensed U-NII devices to operate in the 5 GHz band would not cause harmful interference to previously-authorized DSRC operations. It claims that substantial evidence suggests that harmful interference will likely result to DSRC operations from expanded “high power Wi-Fi” operations in the 5 GHz band. Global further states that the FCC should explain what steps the agency will take to protect DSRC operations against that harmful interference; the Commission should adopt procedures that will swiftly and effectively resolve any harmful interference that may subsequently occur to DSRC from U-NII devices; and if the FCC expects that there will be some level of interference between these adjacent-band operations, the FCC should clarify what level of interference will be acceptable and what course of action will be available to DSRC operators to protect their networks from unacceptable levels of interference. The majority of parties that responded to Global's petition were opposed to reversing the decisions that the Commission made in the First R&O regarding the U-NII-3 band.

11. The Commission rejects Global's Request and declines to reverse or suspend its decision to consolidate the rules for unlicensed devices operating in the 5.725-5.85 GHz band under one rule section. The Commission finds that DSRC systems will receive greater interference protection under the emission mask adopted in this MO&O than was provided under the old rules. In the First R&O the Commission explained that higher powered operations in the 5.725- 5.85 GHz band are already permitted to operate under Section 15.247, and that adopting more stringent limits for the newly modified Section 15.407 rules would reduce the OOBE from each U-NII-3 device and, in turn, should reduce the aggregate emissions from these devices. Therefore, the decisions made in the First R&O with respect to U-NII-3 did not result in an expansion of use but, instead, provided increased protection for systems operating in the adjacent bands, such as DSRC systems and TDWRs. Even with the slight relaxation of the U-NII-3 OOBE limit that are being adopted in this MO&O, the allowed emissions from U-NII devices into the DSRC band will still be held to a lower limit than what was permitted by Section 15.247 prior to the adoption of the First R&O. This in turn will result in less potential interference to ITS operating in the adjacent band because the per device and aggregate emissions in the band will be reduced. Additionally, the Commission believes the additional level of protection afforded to DSRC systems is sufficient because, unlike the TDWR, the DSRC systems were not experiencing interference problems previously. Given that the new rules increase protections for the ITS systems, the Commission does not consider additional protections from adjacent band signals to be necessary.

12. Prior to adoption of the First R&O, the 5.15-5.25 GHz (U-NII-1) band had a very low peak transmitter conducted output power limit of 50 mW, and U-NII operations were restricted to indoor only operations. In the First R&O, the Commission adopted rules to remove the indoor-only restriction and increased the permitted power for these devices in order to increase the utility of the U-NII-1 band and to accommodate the next generation of Wi-Fi technology. Specifically, under the new rules all client devices in the U-NII-1 band may now operate at conducted power levels up to 250 mW without distinction as to whether devices are located indoors or outdoors. The new rules permit Access Points to operate in the U-NII-1 band at conducted power levels up to 1 Watt if they use antennas that limit gain in the upward direction, or if they are located indoors. Client devices are permitted to operate in the U-NII-1 band without limiting the antenna gain in the vertical direction because they typically represent mobile or portable devices, such as handsets, laptops, and tablets. These devices are not typically installed in permanent outdoor locations, and due to their mobile nature the antenna gain in any particular direction cannot be guaranteed. Finally, many client devices incorporate power control features that encourage the device to use as little power as necessary to establish and maintain the communications link. In consideration of all of these factors, the Commission anticipated a negligible interference potential associated with client devices that operate as described and, as a result, determined that the antenna requirements described above for access points were not necessary for client devices.

13. EchoStar (ETC) argues that the First R&O is unclear regarding the power limit applicable to its set-top boxes that serve as client devices for indoor wireless access points and operate in the U-NII-1 band (5.15-5.25 GHz). ETC further asks the Commission to permit such set-top boxes to operate at the maximum power level afforded under new Section 15.407(a)(1)(ii) (i.e., 1 Watt). ETC states that it has integrated Wi-Fi technologies into its set-top boxes and systems to facilitate the distribution of programming within a customer location, at faster speeds than those achievable via in-home cable connections. By including an access point as part of the customer's installation, the system effectively creates a private Wi-Fi network in the home. ETC claims that it is essential that they be permitted to operate at the same maximum power levels that Part 15 affords to facilitate access points and other indoor devices that operate in an entirely stationary mode.

14. ETC stated in its petition that while these devices are not usually attached to anything physically, the box can only operate while sitting still and, generally cannot be moved throughout the home without risking a degradation or loss of video service. As such, the box is functionally identical to an indoor access point, and therefore, the interference considerations are the same for both. Thus, ETC claims there is no reason not to permit both types of devices to transmit at a maximum power level of 1 Watt when operating in the U-NII-1 band. Several parties supported ETC's request for a clarification of the rules.

15. The Commission clarifies that in the First R&O it adopted a power limit of 250 mW for all client devices, regardless of whether they are fixed, mobile, or portable. While the Commission noted that client devices are “typically mobile or portable,” it also made clear that the new 250 mW power limit applies to “any client device which operates under control of an access point.” To avoid further confusion, the Commission on reconsideration modifies Section 15.407(a)(1)(iv) by deleting the words “mobile and portable”.

16. In response to ETC's recommendation to adopt rules that allow U-NII-1 band indoor set-top boxes or any other type of client devices to operate at 1 Watt, the same power levels as U-NII-1 band access points, the Commission declines to do so. As a point of clarification, the Commission has allowed set-top boxes that serve as access points to operate up to 1 Watt based on the rationale that access points generally remain in one location. However, it has treated client devices as subject to the 250 mW limit because it is generally more difficult to control the location and use of these devices (i.e., client devices can be used outdoors). Some commenters have suggested that a possible point of distinction between fixed and mobile client devices could be the need for AC power. The Commission notes, however, that many mobile devices can operate from AC power as an alternative to battery power. While it understands from Echostar's petition that their particular set-top box is not designed to be moved throughout the home, the Commission is not convinced that this can be ensured on a general basis for all “fixed” client devices and there is no reliable way to determine whether or not a client device will be positioned indoors or outdoors.

17. It is unclear from Echostar's petition that its set top box qualifies as an access point and therefore would be permitted to operate at 1 W. This will depend on the specific characteristics of the device as presented through the equipment authorization process. Echostar and any other entity can, therefore, seek approval, at the time it files for equipment authorization, for a set-top box or other such device to operate up to 1 Watt by making a showing that it serves as an access point. However, the Commission is not convinced of the need to increase the in-band power levels for set-top boxes, and if consumers desire to increase the range between the access point and the set-top boxes, repeaters are widely available at commercially reasonable prices for this purpose. The Commission concludes that 250 mW is adequate for most client device installations. For the aforementioned reasons, the Commission will continue to limit client devices in the U-NII-1 band to operating at conducted power levels up to 250 mW with a maximum PSD level of 11dBm/MHz using a transmit antenna with a maximum gain of 6 dBi. It continues to impose this limit on client devices, and without distinction as to whether devices are located indoors or outdoors.

18. Section 15.205 identifies a number of restricted bands in which low power, non-licensed transmitters are not allowed to place any portion of their fundamental emission because of potential interference to sensitive radio communications such as commercial aviation communications and navigation, radio astronomy, search and rescue operations, and other critical government radio services. Additionally, unwanted emissions from non-licensed transmitters that fall into restricted bands must comply with the general radiated emission limits in Section 15.209. The 5.091-5.15 GHz band falls within the larger 4.5-5.15 GHz restricted band, as specified in Section 15.205(a).

19. The 5.091-5.15 GHz band is allocated to the Aeronautical Mobile Service (AMS) on a primary basis for Federal and non-Federal use, including aeronautical fixed communications; Aeronautical Mobile Telemetry (AMT), restricted to 52 designated flight test areas and additional locations authorized for flight testing on a case-by-case basis; and the Fixed Satellite Service (FSS) limited to feeder links for non-geostationary orbit (NGSO) satellite systems in the Mobile Satellite Service (MSS).

20. The Wireless Internet Service Provider Association (WISPA) et al. supports relaxing the Section 15.205 provisions between 5.091 GHz and 5.15 GHz by 1dB for every dB that the antenna gain exceeds 6 dBi, provided that the antenna is oriented at 30 degrees or less above the horizon. Fastback proposes to change the restricted band at 4.5-5.15 GHz to end at 5.091 GHz, thus allowing higher out of band emissions (up to -17 dBm/MHz) from U-NII-1 devices into the 5.091-5.15 GHz portion. It states that adopting its proposed recommendations would enable an increase in EIRP for U-NII-1 point-to-point links, corresponding to an increased communication range of two hundred and fifty percent.

21. The Commission declines to increase the allowable emissions from U-NII band devices into the restricted band below 5.15 GHz. The restricted bands were created to protect radio communications services that are sensitive to interference and that provide critical benefits to public safety and national security. WISPA and Fastback have not offered any analysis showing that increasing the emissions limit in this restricted band would not create an unacceptable risk of interference in the restricted band. Moreover, to the extent that WISPA and Fastback make their proposals in order to increase the utilization of the U-NII-1 band, the Commission observes that it other rule revisions adopted in this order accomplish this purpose, by removing the restriction to indoor operation and increasing the permitted power level for U-NII-1 devices. The emission limits into the adjacent restricted band from U-NII-1 devices may not provide all of the benefits that some equipment suppliers desire, and some equipment manufacturers may find that they need to reduce power below the level permitted under the rules in order to achieve compliance with the OOBE limit below 5.15 GHz. However, the removal of the indoor restriction and the increase in power permitted in the 5.15-5.25 GHz band provide greater opportunities than were available before. Other parts of the 5 GHz band can accommodate higher powered operation where it may not be possible to achieve the desired power level and compliance with the OOBE limit at 5.15—5.25 GHz.

22. The Commission adopted rules requiring that, 12 months after the effective date of the First R&O (June 2, 2015), applications for certification of 5 GHz devices must meet the new and modified rules. Additionally, the Commission required that the manufacture, marketing, sale and importation into the United States of devices that did not meet the new or modified rules must cease two years after the effective date of the rules adopted in the First R&O (June 2, 2016). While the Commission was sympathetic to the arguments of commenters that the more restrictive unwanted emission limits for digital modulation devices may present design challenges for some manufacturers, the Commission ultimately found that it was in the public interest to implement the changes as soon as possible to eliminate the potential of harmful interference to TDWRs.

23. Motorola Solutions, Inc. (MSI) asks that the Commission reconsider its requirement that the manufacture, marketing, sale and importation into the United States of digitally modulated and hybrid devices certified under Section 15.247 cease operating in the 5.725- 5.850 GHz U-NII-3 band two years after the effective date of the First R&O. MSI estimates that almost all of its nearly 200 enterprise WLAN products and access points will require reengineering to comply with the more stringent OOBE requirements and believes this undertaking cannot be completed in two years. MSI recommends a five-year transition, but they believe it is unnecessary and arbitrary to impose any time limit on the continued sale of pre-approved devices, as the new certification obligations adopted by the Commission will facilitate a prompt transition on their own. Similarly, Cambium requests that the one-year and two-year deadlines be extended to three years for equipment not yet certified and the two-year deadline be eliminated for product models certified under the old rules. They claim that this will allow manufacturers a reasonable timeframe to address design issues with meeting new requirements.

24. Cisco raises no objection to a short extension of the transition deadlines if manufacturers can make a compelling case that it is not possible to redesign and re-certify equipment with a reasonable effort, but given the central role U-NII-3 equipment has played in causing interference to TDWR, any extension that delays the introduction of enhanced security features should be as brief as possible. MSI clarifies that its petition was not intended to extend the deadline for introduction of enhanced security features to previously certified devices, but to limit the period of time in which equipment previously certified under the legacy rules could continue to be manufactured and marketed. Broadcom claims that enterprise and home router devices that use its chipsets, which are generally operated indoors using a lower gain antenna, have less potential to cause interference than the point-to-point systems operating outdoors that are using high-gain antennas that prompted the industry emission limits proposal adopted in this proceeding. Broadcom states that although it would be able to meet the emission limits we adopted above, it would need more time to bring their devices into compliance.

25. The Commission modifies the dates by which the certification, manufacture, marketing, sale and importation into the United States of U-NII-3 band devices that do not meet the modified emission limits adopted in this Memorandum Opinion and Order must cease. The Commission modifies Section 15.407(b)(4) to permit manufacturers of devices certified before March 2, 2017 with antenna gain greater than 10 dBi to demonstrate compliance with the emission limits in Section 15.247(d), but manufacturing, marketing, sale and importing of devices certified under this alternative must cease by March 2, 2018. The Commission further modify Section 15.407(b)(4) to permit manufacturers of devices certified before March 2, 2018 with an antenna gain of 10 dBi or less to demonstrate compliance with the emission limits in Section 15.247(d), but manufacturing, marketing, sale and importing of devices certified under this alternative must cease before March 2, 2020. The Commission has already issued two orders that have provided a 10-month extension that permitted manufacturers to continue to certify devices under the old rules until March 2, 2016. Here, the Commission does not further extend the transition provisions in Section 15.37(h) allowing certification and marketing under the old rules, but rather implement a phased implementation of only the out-of-band limits in Section 15.407.

26. The Commission understands Cisco's concerns and agrees that manufacturers should be granted an extension of time only if they cannot comply with the modified rules with reasonable effort and that the time extension should not be indefinite. The Commission recognizes that during the years leading up to the rule change, the industry had made a significant investment in the research, design, and development of new product lines. The Commission also recognizes that manufacturers have made a significant effort to design compliant equipment but are not able to reasonably suppress their OOBEs without significantly reducing the in-band power and thereby reducing the range of their devices. The majority of products that are effected, operate with relatively low power and employ antenna gains of less than 10dBi. The Commission understands that the typical design cycle for enterprise and home routers can last two to three years and that there is no simple solution for manufacturers to swiftly redesign compliant products before the transition period deadlines. Therefore, the Commission will provide a slightly longer transition period for devices that operate a 10 dBi or lower antenna. The Commission notes that these devices tend to present a lower risk of harmful interference because they are typically lower powered and are installed indoor. The Commission recognizes that in theory, harmful interference could occur from an enterprise or home access point, however it has not observed this in practice. In practice, harmful interference to the TDWR was typically caused by long-range devices that were unlawfully modified and typically operated with antenna gains of 15 dBi and above. The devices that employ higher gain antennas are typically operated by service providers for the purposes of wireless back haul and are installed in outdoor environments. The Commission therefore concludes that in the case of devices that employ an antenna with a gain of 10 dBi or less, appropriate deadlines are March 2, 2018 for certification, and March 2, 2020 as the cut-off for devices that can be imported or marketed within the United States under the old emission limits.

27. The Commission believes these extensions will give manufacturers and vendors sufficient time to come into compliance with the new emission limits. The Commission does not believe a short extension of the deadlines will represent a significant risk of harmful interference for the TDWR. The new certification and marketing deadlines apply to devices that operate in the U-NII-3 band.

28. The Commission notes that the ultimate purpose of the transition date is to expediently reduce the threat of harmful interference to the TDWR and other radar facilities from devices on the market that were easily and unlawfully modified. However, the Commission recognizes that manufacturers will need additional time to design new product lines that comply with the new rules. Extending the emission limit deadlines will permit manufacturers to plan their research and design activities to comply with the outcome of our actions here. Permitting this extended period will provide economic relief by allowing manufacturers to continue to sell through remaining inventory. The Commission has already provided more time than originally intended to bring these devices into compliance and no further extensions are contemplated.

29. Final Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (RFA)1 requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 2 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 3 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.4 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the U.S. Small Business Administration (SBA).5 The adopted rules pertain to manufacturers of unlicensed communications devices. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” 6 The SBA has developed a small business size standard for firms in this category, which is: All such firms having 750 or fewer employees.7 According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for part or all of the entire year. Of this total, 784 had fewer than 500 employees and 155 had more than 100 employees.8 Thus, under this size standard, the majority of firms can be considered small.

30. Pursuant to the RFA, the Commission incorporated an Initial Regulatory Flexibility Analysis (IRFA) into the Notice of Proposed Rulemaking (NPRM) in ET Docket No. 13-49.9 There were no public comments filed that specifically addressed the rules and policies proposed in the IRFA, and the Commission concluded in the Final Regulatory Flexibility Analysis (FRFA) in the First Report and Order (First R&O) 10 that the rules adopted in the First R&O do not add substantial additional compliance burden on small businesses. For the reasons described below, the Commission now certify that the policies and rules adopted in the present Memorandum Opinion and Order (MO&O) will not have a significant economic impact on a substantial number of small entities.

31. In the First R&O, the Commission prepared a FRFA detailing the ways in which the Commission sought to minimize the impact of the new regulations on small businesses.11 The rule change adopted in this MO&O is merely a modification of the rule adopted in the First R&O that will provide relief for those entities that are required to comply with rules adopted in the First R&O and modified herein. Therefore, the Commission certify pursuant to the RFA that the final rule adopted in this order will not have a significant economic impact on a substantial number of small entities.12

32. The Commission will send a copy of the MO&O, including a copy of this final Regulatory Flexibility Certification,13 in a report to Congress pursuant to the Congressional Review Act. In addition, the MO&O and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register.14

33. Paperwork Reduction Act Analysis. This document contains no new or modified information collection requirement that are subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The Commission note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

34. Congressional Review Act. The Commission will send a copy of this Memorandum Opinion and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

35. Pursuant to Sections 4(i), 301, 302, 303(e), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302a, 303(e), 303(f), 303(g), and 303(r), this Memorandum Opinion and Order IS ADOPTED and Part 15 of the Commission's Rules, 47 CFR. Part 15, IS AMENDED. The revisions will be effective May 6, 2016 of this Memorandum Opinion and Order.

36. Pursuant to Sections 4(i), 302, 303(e) 303(f), 303(g), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(g), 303(r), and 405, the petitions for reconsideration addressed ARE GRANTED, to the extent indicated above, and otherwise ARE DENIED.

37. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Memorandum Opinion and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble the Federal Communications Commission amends 47 CFR part 15 as follows:

This document denies petitions for reconsideration of a November 25, 2013 final rule requiring seat belts on large buses (78 FR 70416). We first deny the petitions submitted by bus manufacturers IC Bus and Daimler Trucks to modify the definition of “over-the-road bus” specified in the final rule. These petitions are denied because any change to the definition may serve to reduce the standard's applicability, contrary to Congressional intent and the safety need addressed by the rule, and the current definition of “over-the-road bus” is sufficiently clear as to which buses must be equipped with seat belts. Second, this document denies a petition for reconsideration from bus manufacturer Prevost to revise the seat belt anchorage strength requirements for last row seats having no passenger seating behind them. This petition is denied because, as explained in the 2013 final rule, the agency is concerned about the interchangeability of these seats with those equipped with integrated seat belts and the risk that a seat that is certified to a lesser requirement could be moved to a row that has passenger seats behind it. Further, we deny the petition because the requested force level reduction may set strength levels below an acceptable level for a dynamic environment.

On July 6, 2012, President Obama signed the “Moving Ahead for Progress in the 21st Century Act” (MAP-21), which incorporates the “Motorcoach Enhanced Safety Act of 2012” in subtitle G. Section 32703(a) of this legislation calls for prescribing regulations for seat belts at all designated seating positions in “motorcoaches.” Section 32702(6) states that “[t]he term `motorcoach' has the meaning given the term `over-the-road bus' in section 3038(a)(3) of the Transportation Equity Act for the 21st Century (49 U.S.C. 5310 note)” with two specific exceptions.1 Section 3038(a)(3) (49 U.S.C. 5310 note) defines the term “over-the-road bus” as a bus characterized by an elevated passenger deck located over a baggage compartment.2

On November 25, 2013, NHTSA issued a final rule on occupant protection in large buses, fulfilling the statutory mandate in section 32703(a) of MAP-21. The 2013 final rule amended Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection,” to require lap/shoulder seat belts for each passenger seating position in all new over-the road buses regardless of gross vehicle weight rating (GVWR). In the final rule, consistent with MAP-21, NHTSA incorporated the term “over-the-road bus” into FMVSS No. 208 and the definition for the term set forth in MAP-21. Further, finding a safety need to improve occupant protection for passengers on other large buses, the agency also required seat belts in new buses, other than over-the road buses, with a GVWR greater than 11,793 kilograms (kg) (26,000 pounds (lb)).3

In response to the November 25, 2013 final rule, the agency received petitions for reconsideration requesting the agency further define the term “over-the road bus” with dimensional specificity and/or with other bus attributes. IC Bus stated that the current definition of over-the-road bus is ambiguous and the terms “elevated passenger deck” and “baggage compartment” are undefined and subject to interpretation. IC Bus petitioned the agency to—

• modify the definition such that “over the road bus means a bus characterized by an elevated passenger deck to accommodate a baggage compartment underneath, except a school bus,” and

• define the term “elevated passenger deck” based on physical attributes of the bus such as passenger compartment floor height as measured from the ground (scaled for different GVWR) or define a passenger compartment floor height requirement with respect to some specific vehicle reference point.

Daimler Trucks also petitioned the agency to modify the definition of over-the road bus to include objective dimensional criteria for the elevated passenger deck, such as floor height from the ground (variable for different GVWR), and also to define baggage compartment in terms of volume per seating position.

The petitioners did not provide information supporting the requested action. They made broad suggestions as to how the definition of over-the-road bus might be quantified, but specific criteria and supporting data were lacking in the submissions. The petitioners did not provide data on the floor height or luggage compartment volume for any bus body type. They did not discuss what floor height or luggage compartment volume should be used to distinguish an over-the-road bus from other buses, and the basis for the criterion.

NHTSA has limited discretion regarding the “motorcoach” definition and the application of the November 2013 final rule. Section 32702(6) of MAP-21 precisely defines the meaning of the term “motorcoach,” incorporating the “over-the-road bus” definition used in 49 U.S.C. 5310 note (which the petitioners seek to change). Further, section 32703(a) requires the Secretary to “prescribe regulations requiring safety belts to be installed in motorcoaches at each designated seating position.” We note that buses are built for different purposes to different specifications, with varying floor height, floor length, compartment sizes, etc. Adding dimensional limits to the bus attributes as the petitioners suggest would reduce the number of vehicles fitting under the definition, which in turn would reduce the number of buses that would be required to have seat belts. The agency is concerned that such a reduction in the number of buses subject to the seat belt requirement would be contrary to Congress's intent to enhance the safety of buses used for passenger transport for compensation.4 MAP-21 specified the over-the-road bus definition to be used by the agency, without regard to vehicle weight and without indicating any additional specificity in regards to floor height or luggage compartment volume.

Additionally, NHTSA does not believe that the requested action is needed to clarify the application of the seat belt requirement. The applicability of the requirement is quite clear. As previously discussed, all buses with a GVWR greater than 11,793 kg (26,000 lb) must have seat belts.5 For buses with GVWRs of 11,793 kg (26,000 lb) or less, if the vehicle has “an elevated passenger deck located over a baggage compartment,” it must have seat belts.

We believe that a bus manufacturer can determine whether the vehicle they manufacture must have seat belts, based on the vehicle's GVWR and whether the bus has a luggage compartment under any part of the passenger deck. A bus that does not fit the definition is one without a luggage-carrying compartment under any part of the passenger deck.

Based on the above, the agency declines the petitioners' request to modify the definition of over-the-road bus.

As part of the motorcoach seat belt requirements, the agency specified that the seat belt assembly anchorages must meet the requirements of FMVSS No. 210, “Seat belt assembly anchorages,” to ensure effective occupant restraint and to reduce the likelihood of their failure. Further, the rule required that the seat belt anchorages must be integrated to the seat structure, except for the belt anchorages in the last row of the coach (if there is no wheelchair position or side emergency door behind these seats) and in the driver seating position. For the excluded seats in the last row, the final rule provided manufacturers the option of either having an integrated seat belt or attaching the seat belt anchorages to the bus side or back structure, as such placement would not impede ingress or egress of passengers in the coach.

In response to the final rule, Prevost petitioned asking for reduced “seat retention” requirements for last row seats where there is no possibility of any passengers being behind them. Prevost is concerned that “the very last seats are secured over a thin metal bulkhead which did not require being very rigid when there were no seat belts” 6 and believes that this bulkhead will require reinforcement. It claimed that “[a]ny strength requirement is transmitted into added weight which in turn transferred into fuel consumption.” The petitioner argued that FMVSS No. 210 would be applicable to any other seats in the motorcoach where there would be combined belted occupant and inertial loading of the seat plus loading from the unbelted occupant behind, but for last row seats, there is no possibility of occupant loading from behind so the FMVSS No. 210 load should be reduced. No supporting data was provided in the petition.

The agency has carefully considered the petitioner's request to reduce the seat belt anchorage forces for the subject seats. We are denying the request for the reasons explained below.

We first note that Prevost's petition is essentially a repeat of the comments it made to the notice of proposed rulemaking (NPRM) 7 preceding the final rule. The agency responded to that comment in the preamble of the final rule as follows:

Consistent with our final rule response, we remain concerned about the interchangeability of the seats with integrated seat belts, particularly in consideration of the long life of these vehicles (20+ years) and subsequent sales to operators that may need to reconfigure seating. If the operator moved the reduced-strength seat to a position that had a passenger seat behind it, the moved seat will not have the characteristics needed to withstand the loading from the aft passengers. If the reduced-strength seat were in a position that had a storage space behind it, loose items may create forward loading in a crash, similarly to rear occupant loading. The petitioner did not address this point. Similarly, no information or analysis was provided to suggest a value by which the seat belt anchorage strength requirement should be reduced.

The agency is not convinced of the merits of lowering the strength requirement per se. NHTSA conducted a full scale 48 kilometers per hour (km/h) (30 miles per hour) crash test of a 2000 Model Year MCI 102EL3 Renaissance motorcoach (capacity of 54 passengers seats). Post-test examination of the bus 8 found shoulder belt D-ring excursion for one of the seats (seating position 11R). The top bolt of the D-ring shoulder belt mount attached to the seat back by two bolts sheared resulting in forward excursion of the D-ring. This was a row of 7G Amaya seats with two 50th percentile dummies restrained with lap/shoulder belts. There was no added reinforcement to the floor or to the side structure and no occupant loading from behind. This seat design passed the FMVSS No. 210 force requirements in our static pull tests. Although the D-ring mount failure did not result in dummy contact with the seats in front of them or result in high injury values, it suggests that the dynamic loading was sufficient to cause partial failure of the torso anchorage hardware without any loading from dummies in the row behind. Thus, the agency is concerned that any reduction in the seat belt loading below the FMVSS No. 210 level may reduce the torso anchorage strength to an unacceptable level.

In addition, data indicate that the last row of seats may be subject to loading unique to the rear of the bus. The vehicle accelerometer data from the full scale crash test were suggestive of forward flexing and dynamic rebound near the rear wall of the passenger compartment, compared to the front of the passenger compartment.9 The static FMVSS No. 210 test cannot account for the dynamic forward displacement and rebound of the vehicle structure to which the seat or seat belt may be anchored and any weakening of the attachments that may result from such dynamic phenomena. Thus, reducing the anchorage strength requirements for this last row of seats may set strength levels below an acceptable level for a dynamic environment.

In its petition, Prevost states that reducing the strength requirement of FMVSS No. 210 for last row seats would result in a weight reduction and fuel savings. The agency is not convinced that there would be a significant weight reduction or fuel savings. Prevost did not provide information substantiating its claims, such as data on the thickness changes to the metal bulkhead (for example) required to secure seat belts designed to comply with the FMVSS No. 210 requirements compared to current designs.

Further, the final rule permits—rather than requires—manufacturers to attach the seat belts to the vehicle structure for last-row seats. In the final rule, NHTSA stated that “[l]ap/shoulder belt equipped seats that meet the requirements of FMVSS No. 210 are available in the U.S. that are equivalent in weight to the European seats.” (78 FR at 70460.) We concluded that, depending on the efficiency of the structural design, there would be little or no weight penalty associated with the structural changes needed to meet FMVSS No. 210. Thus, the petitioner could use the integrated seat belt design for the last row seats if attaching the belt to the bus rear wall is problematic. Regardless, we emphasize that the petitioners have not shown that there will be a weight penalty for seat belt anchorages integrated into the vehicle structure. The increased flexibility of attachment to the vehicle rather than the seat has expanded the opportunity for efficient, innovative and practicable designs for manufacturers choosing to attach the belts to the vehicle structure.

For the reasons stated above, NHTSA hereby denies all petitions for reconsideration of the November 25, 2013 final rule amending FMVSS No. 208.

The Interstate Commerce Act, as amended by the ICC Termination Act of 1995 (ICCTA), Public Law 104-88, 109 Stat. 803, authorizes the Board, in 49 U.S.C. 11142, to prescribe a uniform accounting system for rail carriers subject to our jurisdiction and, in 49 U.S.C. 11161, to maintain cost accounting rules for rail carriers.1 Sections 11142 and 11161 both require the Board to conform its accounting rules to GAAP “[t]o the maximum extent practicable.” The USOA is set forth in the Board's regulations at 49 CFR part 1201—Subpart A. The USOA is used by the Class I Railroads 2 to comply with their statutory requirement to provide the Board an annual report, known as the R-1 report, that contains information about their finances and operating statistics. 49 U.S.C. 11145(b)(1) and 49 CFR 1241.11.

In a notice of proposed rulemaking served on July 8, 2015 (NPR), the Board proposed to make a number of changes to the USOA. First, the Board noted that the existing USOA does not specifically address the proper accounting and reporting for changes in the fair value of certain security investments, derivative instruments, and hedging activities, nor does it contain specific accounts to record amounts related to items of Other Comprehensive Income or provide a format to display comprehensive income in the Form R-1. Without specific instructions and accounts for recording and reporting these transactions and events, inconsistent and incomplete accounting would result. Thus, the Board proposed to amend its USOA and Form R-1 to account for those types of transactions and events. Specifically, the Board proposed updating the USOA to provide for: (1) Fair value presentation of certain security investments, derivative instruments, and hedging activities; and (2) presentation of comprehensive income and components of other comprehensive income.

The Board proposed these revisions based on the GAAP promulgated by the Financial Accounting Standards Board (FASB) 3 in the following Accounting Standards Codifications (ASC): ASC 320 Investments—Debt and Equity Securities; ASC 220 Comprehensive Income; ASC 815 Derivatives and Hedging; and ASC 805 Business Combinations.4 The Board stated that the purpose of the proposed revisions is to provide consistent accounting and reporting of changes in the fair value of security investments, derivative instruments, and hedging activities. The Board further stated that the proposed changes would minimize the accounting and reporting burden on railroads under the Board's jurisdiction, assist the Board in its overall monitoring effort, and improve transparency.

Second, the Board proposed revising the USOA to reflect current accounting practices for business combinations by removing existing instructions for the pooling-of-interest method of accounting and replacing those instructions with the acquisition accounting method. This method of accounting has been standard practice in the accounting industry for some time, and the Board has already agreed that the acquisition method better reflects the investment made in an acquired entity and has affirmed the use of this treatment.5 Thus, in the NPR, the Board proposed to update the USOA to reflect this accounting treatment.

Finally, the Board proposed revising the Form R-1 to include new accounts and a new reporting schedule and eliminating 15 schedules that the Board no longer uses.

The proposed rules were published in the Federal Register, 80 FR 39,021 (July 8, 2015). The Board received comments from the Association of American Railroads (AAR); no reply comments were filed.

The Board has reviewed the issues raised in AAR's comments and addresses them below, along with any revisions made in response. The final rules in full are below.

In the NPR, the Board proposed to amend its USOA and Form R-1 by adding new general instructions and accounts to recognize changes in the fair value of certain security investments, items of other comprehensive income, derivative instruments, and hedging activities. Additionally, the Board proposed revising its USOA to reflect current accounting practices for business combinations by removing existing instructions for the pooling-of-interest method of accounting and requiring only the acquisition accounting methodology. The Board also sought comment on its proposal to revise the Form R-1 to include the new accounts and a new reporting schedule.

No comments were filed in opposition to these proposals. Thus, the Board adopts such proposals here in the final rules. These changes will improve completeness and consistency of accounting and reporting. The addition of the proposed new accounts and related reporting requirements to the Form R-1 will reduce regulatory uncertainty as to the proper accounting and reporting for these items and minimize regulatory burden by reducing the potential differences in the manner in which certain amounts are reported to shareholders and to the Board. Finally, the reporting of derivative instruments and hedging activities by regulated carriers will assist the Board in its overall monitoring effort as well as its ability to assess railroad industry growth and financial stability.

The Board stated in the NPR that it had examined the current Form R-1 and determined that 15 of the 47 schedules were no longer used by the Board to perform regulatory and oversight functions. The Board, therefore, proposed to eliminate the following 15 schedules:

In its comments, AAR states that it supports the Board's proposal to eliminate these schedules from the Form R-1, with the exception of Schedule 702, Miles of Road at Close of Year-By States and Territories (Single Track). According to AAR, Schedule 702 should be retained because this schedule is used to calculate state tax rates in the Revenue Shortfall Allocation Method.6

We agree with AAR that Schedule 702 should be retained. The Form R-1 report, filed annually by Class I railroads, includes the mileage necessary to weight average state tax rates that are utilized in the Revenue Shortfall Allocation methodology.7 Therefore, Schedule 702 will be retained.

In addition to the schedules proposed for elimination in the NPR, AAR requests, consistent with its comments previously filed in Improving Regulation & Regulatory Review, Docket No. EP 712, that the Board eliminate Schedule 220, Retained Earnings; Schedule 342, Accumulated Depreciation—Improvements to Road and Equipment Leased from Others; Schedule 501, Guarantees and Suretyships; and Schedule 502, Compensating Balances and Short-Term Borrowing Arrangements. AAR further requests that the Board eliminate Schedule 310, Investments and Advances Affiliated Companies and Schedule 310A, Investments in Common Stocks of Affiliated Companies. According to AAR, these schedules are unnecessary because they capture data that is neither used nor usable to support the Board's regulatory objectives.

The Board will not adopt AAR's proposals to eliminate these other schedules. Schedule 220, Retained Earnings, will be retained because it is a significant financial disclosure for stakeholders interested in changes in the retained earnings account during the reporting period and gives important insight into the rail carrier's financial performance. Schedule 342, Accumulated Depreciation—Improvements to Road and Equipment Leased from Others, will be retained because it is used in the Board's Uniform Rail Costing System (URCS) and review of depreciation studies. In addition, eliminating Schedule 342 would limit the Board's ability to collect sufficient detail for R-1 reporting regarding rail carriers' implementation of the updated GAAP standard for leases. Finally, Schedules 501 (Guarantees and Suretyships), 502 (Compensating Balances and Short-Term Borrowing Arrangements), 310 (Investments and Advances Affiliated Companies), and 310A (Investments in Common Stocks of Affiliated Companies), are currently used by the Board's Office of Economics in intercompany audits, as they provide detailed information related to the railroads' financial arrangements with affiliated companies and financial agreements with borrowers and lenders. Those schedules therefore will be retained.

AAR further suggests, consistent with its comments in Improving Regulation and Regulatory Review, Docket No. EP 712, that the Board make certain changes to either conform Form R-1 schedules to GAAP or otherwise harmonize Form R-1 reporting requirements. In Schedule 210, Results of Operations, AAR suggests that the Board change the description in Line 41 from “Amortization of Discount on Funded Debt,” to “Amortization of Premium or Discount on Funded Debt,” to reflect that premium amortization is included in interest expenses. AAR also suggests removing Line 22 where amortization of premium on funded debt is currently reported. In Schedule 412, Way and Structures, AAR suggests adding a separate line for “Shop Machinery” to reconcile the amortization expenses and depreciation for road accounts required in Schedules 412 and 335, Accumulated Depreciation—Road and Equipment Owned and Used. For Schedule 415, Supporting Schedule—Equipment, AAR proposes that the Board combine owned and capitalized leases in the schedule and eliminate lines pertaining to “Machinery” because, according to AAR, this data is not in or supported by Schedule 410, Equipment Accounts. Finally, for Schedule 755, Railroad Operating Statistics, AAR suggests eliminating Line 89—Caboose Miles—due to the significant reduction in the use of cabooses by reporting rail carriers.

While the Board will not adopt AAR's suggestions that the Board make certain other changes to either conform Form R-1 schedules to GAAP or otherwise harmonize Form R-1 reporting requirements, the Board will provide clarifying instructions with respect to one of AAR's proposals.

First, we will not adopt AAR's requested changes to Schedule 210, Results of Operations. Although AAR's proposal would simplify the reporting presentation in the Form R-1, the Board's current practice of presenting premiums and discounts of funded debt separately is preferable because it allows for transparent financial reporting by showing both interest income and expense.

Additionally, AAR's suggestion that the Board combine owned and capitalized leases in Schedule 415 (Supporting Schedule—Equipment) will not be adopted because this change would limit the Board's ability to collect sufficient detail for R-1 reporting regarding railroads' implementation of the updated GAAP standards for leases. This change would also require a modification in how Schedule 415 is inputted in URCS. In addition, although AAR suggests that lines pertaining to “Machinery” be eliminated in Schedule 415 because, according to AAR, such data is not in or supported by Schedule 410 (Equipment Accounts), the Board will not do so because Schedule 415, Lines 38-40 reconcile to Schedule 410, Lines 203, 222, and 306.

In Schedule 755 (Railroad Operating Statistics), the Board will retain Line 89-Caboose Miles. While reporting carriers have been reducing the use of cabooses over time, a level of use still exists. Further, removing Line 89 would eliminate an operating statistic from the URCS calculation.

While AAR suggests adding a separate line for “Shop Machinery” in Schedule 412 (Way and Structures) to reconcile the amortization expenses and depreciation for road accounts required in Schedules 412 (Way and Structures) and 335 (Accumulated Depreciation—Road and Equipment Owned and Used), the Board notes that Schedule 412 reports a railroad's fixed roadway facilities; “Shop Machinery” does not fall into such a category, but should be recorded in equipment accounts. The Board, however, will clarify instruction 4 in Schedule 412 to read as follows: “Amortization adjustment of each road property type which is included in column (b) shall be repeated in column (d) as a debit or credit to the appropriate line item. The net adjustment on line 29 shall equal the adjustment reported on line 29 of Schedule 335, excluding Account 44, Shop Machinery.”

In sum, the final rules will eliminate the schedules previously identified in the NPR except for Schedule 702, Miles of Road at Close of Year-By States and Territories (Single Track), as discussed above. The Board will also clarify R-1 Schedule 412 instruction 4 as it pertains to the treatment of Shop Machinery.

As noted in the NPR, ASC 805 Business Combinations requires the use of the acquisition method of accounting for all business combinations. While this method of accounting has been standard practice in the accounting industry for some time, and the Board has already agreed that the acquisition method better reflects the investment made in an acquired entity and has affirmed the use of this treatment, the USOA has not been updated to incorporate the method.8 Thus, the NPR proposed to update the USOA to reflect this accounting treatment.

In connection with that proposal, the Board specifically sought comment on the application of Instruction 2-15, paragraph (d) with respect to use of the pooling of interest method for transactions involving the acquisition and merger of property of subsidiaries in INSTRUCTIONS FOR PROPERTY ACCOUNTS. No comments were submitted regarding the treatment or application of Instruction 2-15, paragraph (d). Therefore, we will update Instruction 2-15, paragraph (d) to reflect the use of the acquisition accounting methodology and remove any reference or instruction pertaining to the pooling-of-interest methodology.9

In response to the NPR, AAR also suggests that the Board adopt ASC 410, Asset Retirement and Environmental Obligations, which addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement costs. AAR, however, does not explain why it believes ASC 410 should be adopted. The Board has already determined in an Accounting Series Circular served on June 11, 2003, and sent to all accounting officers of Class I railroads, that the Board would not adopt Financial Accounting Standard (FAS) 143, Accounting for Asset Retirement Obligations, now codified as ASC 410, because to do so would be inconsistent with the Board's accounting rules.10 Nothing in AAR's comments suggests any reason for altering the Board's 2003 determination. Accordingly, we will not adopt ASC 410 as suggested by AAR.

As noted above, 49 U.S.C. 11142 and 11161 require the Board to conform its accounting rules to GAAP “[t]o the maximum extent practicable.” Therefore, in keeping with this requirement, the Board will conduct a periodic review of its accounting standards not less than every five years.

In the NPR the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.11, regarding: (1) Whether the revisions to the collection of information proposed here are necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden assessment; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burdens of the collections of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. Comments regarding the necessity, utility, and clarity of the information collection were received and are addressed above. No comments concerning the Board's burden estimates were received.

The proposed collection was submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11. OMB withheld approval pending submission of the final rule. We are today submitting the collection contained in this final rule to OMB for approval. Once approval is received, we will post a copy of the revised Form R-1 on the Board's Web site. Unless renewed, OMB approval of this collection expires three years after the date that OMB approves the collection.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 5 U.S.C. 601-604. Under § 605(b), an agency is not required to perform an initial or final regulatory flexibility analysis if it certifies that the proposed or final rules will not have a “significant impact on a substantial number of small entities.”

Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 478, 480 (7th Cir. 2009). An agency has no obligation to conduct a small entity impact analysis of effects on entities that it does not regulate. United Distrib. Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).

The rule changes adopted here will not have a significant economic impact upon a substantial number of small entities, within the meaning of the RFA. The reporting requirements are applicable only to entities that are required to file Form R-1 reports, i.e., the Class I carriers. 49 CFR 1241.1. Class I carriers are large railroads; accordingly, there will be no impact on small railroads (small entities).11 Therefore, the Board certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.

It is ordered:

1. The final rules set forth below are adopted and will be effective on May 6, 2016. Notice of the rules adopted here will be published in the Federal Register.

2. This decision is effective on the date of service.

For the reasons set forth in the preamble, the Surface Transportation Board is amending part 1201 of title 49, chapter X, of the Code of Federal Regulations as follows:

To prevent the extinction of wildlife and plants, the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), and its implementing regulations in title 50 of the Code of Federal Regulations (CFR), prohibit any person subject to the jurisdiction of the United States from conducting certain activities with species listed under the Act unless first authorized by a permit, except as a rule issued under section 4(d) of the Act applies to the species. These activities include import, export, take, and sale or offer for sale in interstate or foreign commerce. The Secretary of the Interior may permit these activities for endangered species for scientific purposes or enhancement of the propagation or survival of the species, provided the activities are consistent with the purposes of the Act. In addition, for threatened species, permits may be issued for the above-listed activities, as well as zoological, horticultural, or botanical exhibition; education; and special purposes consistent with the Act. The Secretary of the Interior has delegated the authority to administer endangered and threatened species permit matters to the Director of the U.S. Fish and Wildlife Service. The Service's Division of Management Authority administers the permit program for the import or export of listed species, the sale or offer for sale in interstate and foreign commerce for nonnative listed species, and the take of nonnative listed wildlife within the United States.

In 1979, the Service published the Captive-bred Wildlife (CBW) regulations (44 FR 54002, September 17, 1979) to reduce Federal permitting requirements and facilitate captive breeding of endangered and threatened species under certain conditions. These conditions include:

(1) A person may become registered with the Service to conduct otherwise prohibited activities when the activities can be shown to enhance the propagation or survival of the species;

(2) Interstate commerce is authorized only when both the buyer and seller are registered for the same species;

(3) The registration is only for live, mainly nonnative endangered or threatened wildlife that was born in captivity in the United States (although the Service may determine that a native species is eligible for the registration; to date, the only native species granted eligibility under the registration is the Laysan duck (Anas laysanensis));

(4) Registration does not authorize activities with non-living wildlife, a provision that is intended to discourage the propagation of endangered or threatened wildlife for consumptive markets; and

(5) The registrants are required to maintain written records of authorized activities and report them annually to the Service. The CBW registration has provided zoological institutions and breeding operations the ability to move animals quickly between registered institutions for breeding purposes.

In 1993, the Service amended the CBW regulations at 50 CFR 17.21(g) (58 FR 68323, December 27, 1993) to eliminate public education through exhibition of living wildlife as the sole justification for the issuance of a CBW registration. That decision was based on the Service's belief that the scope of the CBW system should be revised to relate more closely to its original intent, i.e., the encouragement of responsible breeding that is specifically designed to help conserve the species involved (63 FR 48635; September 11, 1998).

In 1998, the Service amended the CBW regulations (63 FR 48634, September 11, 1998) to delete the requirement to obtain a CBW registration for holders of inter-subspecific crossed or generic tigers (i.e., specimens not identified or identifiable as members of Bengal, Sumatran, Siberian, or Indochinese subspecies (Panthera tigris tigris, P. t. sumatrae, P. t. altaica, and P. t. corbetti, respectively)). Certain otherwise prohibited activities with these specimens were authorized only when the activities were shown to enhance the propagation or survival of the species, provided the principal purpose was to facilitate captive breeding. Although the submission of a written annual report was not required, holders of these specimens had to maintain accurate written records of activities, including births, deaths, and transfers of specimens, and make the records accessible to Service agents for inspection at reasonable hours as provided for in 50 CFR 13.46 and 13.47. The exemption for inter-subspecific crossed or generic tigers was based on the lack of conservation value of these specimens due to their mixed or unknown genetic composition. The intention behind the exemption was for the Service to focus its oversight on populations of “purebred” animals of the various tiger subspecies to further their conservation in the wild, while recognizing that generic tigers that were currently held by zoological facilities could be used to educate the public about the ecological role and conservation needs of the species. Even with this exemption, inter-subspecific crossed or generic tigers were still protected under the Act and those activities that did not constitute authorized activities under the CBW program, such as the interstate sale of generic tigers solely for education purposes or display purposes, would require prior authorization of an ESA permit.

On August 22, 2011, the Service proposed to amend the CBW regulations that implement the Act by removing inter-subspecific crossed or generic tigers from paragraph (g)(6) of 50 CFR 17.21 (76 FR 52297). The public was provided with a 30-day comment period to submit their views and comments on the proposed rule. However, due to the large volume of comments, the Service published a notice on September 21, 2011 (76 FR 58455), extending the comment period for an additional 30 days. This comment period ended on October 21, 2011. Since that time, the Service has received no new substantive information that would affect this rule.

The wild tiger was once abundant throughout Asia. At the end of the 19th century, an estimated 100,000 tigers occurred in the wild (Nowak 1999, p. 828), but by the late 1990s, the estimated population had declined to 5,000-7,000 animals (Seidensticker et al. 1999, p. xvii). Today's population in the wild is thought to be 3,000-5,000 individuals, according to the IUCN (International Union for Conservation of Nature) Red List estimate (Chundawat et al. 2010, unpaginated), with no more than 2,500 mature breeding adults (Williamson and Henry 2008, pp. 7, 43). The once-abundant tiger now lives in small, fragmented groups, mostly in protected forests, refuges, and national parks (FWS 2010a, p. 1). The species occupies only about 7 percent of its original range, and in the past decade, the species' range has decreased by as much as 41 percent (Dinerstein et al. 2007, p. 508).

For many years, the international community has expressed concern about the status of tigers in the wild and the risk that captive tigers, if used for consumptive purposes, may sustain the demand for tiger parts, which would ultimately have a detrimental effect on the survival of the species in the wild. An estimated 5,000 captive tigers occur on China's commercial tiger farms, where tigers are being bred intensively and produce more than 800 animals each year (Williamson and Henry 2008, p. 40). Tiger body parts, such as organs, bones, and pelts, are in demand not only in China, but also on the global black market. Organs and bones are used in traditional medicines, which are purchased by consumers who believe the parts convey strength, health, and virility.

Current regulations under the ESA prohibit the taking of any tiger, including generic tigers, and there is no clear evidence that the U.S. captive tiger population has played a role in illegal international trade. However, in 2005, Werner (p. 24) estimated that 4,692 tigers were held in captivity in the United States. Approximately 264 tigers were held in institutions registered with the Association of Zoos and Aquariums (AZA), 1,179 in wildlife sanctuaries, 2,120 in institutions registered by the U.S. Department of Agriculture (USDA), and 1,120 in private hands. In 2008, Williamson and Henry stated that as many as 5,000 tigers are in captivity in the United States, but cautioned that, given the current State and Federal legal framework that regulates U.S. captive tigers, the exact size of the population is unknown (Williamson and Henry 2008).

The tiger is a species of global concern, is classified as endangered in the IUCN Red List (IUCN 2010), and is protected by a number of U.S. laws and treaties. It is listed as endangered under the Act. Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” The listing is at the species level and, thus, includes all subspecies of tiger (including those that are of unknown subspecies, referred to as “generic” tigers) and inter-subspecific crosses.

The species is also protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Under this treaty, 178 member countries (Parties) work together to ensure that international trade in protected species is not detrimental to the survival of wild populations. The United States and all the tiger range countries are Parties to CITES. The tiger is listed in Appendix I, which includes species threatened with extinction whose trade is permitted only under exceptional circumstances, and which generally precludes commercial trade. The United States has a long history of working within CITES to promote tiger conservation and has been a leader in supporting strong actions within CITES for tigers, including strict controls on captive-bred animals. In 2007 at the 14th meeting of the Conference of the Parties to CITES (CoP14), we were closely involved in drafting Decision 14.69, which calls on countries with intensive commercial breeding operations of tigers to implement measures to restrict the captive population to a level supportive only to conserving wild tigers, and for tigers not to be bred for trade in their parts and products. Although the decision was primarily directed at large commercial breeding operations such as those found in China, we are aware of the large number of captive tigers in the United States and the need to be vigilant in monitoring these tigers as well.

The tiger is afforded additional protection under the Captive Wildlife Safety Act (CWSA) and the Rhinoceros and Tiger Conservation Act (RTCA, 16 U.S.C. 5301 et seq.). The CWSA amended the Lacey Act (16 U.S.C. 3371 et seq.) to address concerns about public safety and the growing number of big cats, including tigers, in private hands in the United States. The law and its regulations make it illegal to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any live big cats except by certain exempt entities. Entities exempt from the CWSA include a person, facility, or other entity licensed by the USDA's Animal and Plant Health Inspection Service under the Animal Welfare Act to possess big cats (typically zoos, circuses, and researchers) or registered to transport big cats; State colleges, universities, and agencies; State-licensed wildlife rehabilitators and veterinarians; and wildlife sanctuaries that meet certain criteria.

The RTCA is another powerful tool in combating the international trade in products containing tiger parts. It prohibits the sale, import, and export of products intended for human use and containing, or labeled or advertised as containing, any substance derived from tiger and provides for substantial criminal and civil penalties for violators. The RTCA also establishes a fund that allows the Service to grant money in support of on-the-ground tiger conservation efforts, such as anti-poaching programs, habitat and ecosystem management, development of nature reserves, wildlife surveys and monitoring, management of human-wildlife conflict, and public awareness campaigns (FWS 2010b. p. 1).

The World Wildlife Fund, TRAFFIC North America, other nongovernmental organizations (NGOs), and the public have expressed concerns about the potential role U.S. captive tigers may play, or could potentially play, in the trade in tiger parts. In July 2008, TRAFFIC published a report titled, Paper Tigers? The Role of the U.S. Captive Tiger Population in the Trade in Tiger Parts (Williamson and Henry 2008). The report found no indication that U.S. tigers currently are entering domestic or international trade as live animals or as parts and products. However, given the precarious status of tigers in the wild and the potential that U.S. captive tigers could enter trade and undermine conservation efforts, TRAFFIC made several recommendations to close potential loopholes in current Federal and State regulations to avoid the use of captive U.S. tigers in trade. One of those recommendations was for the Service to eliminate the exemption under 50 CFR 17.21(g)(6) for holders of inter-subspecific crossed or generic tigers from the requirements to register and submit annual reports under the CBW regulations.

In our proposed rule (August 22, 2011; 76 FR 52297), we asked interested parties to submit comments or suggestions regarding the proposal to eliminate inter-subspecific crossed or generic tigers from the regulation at 50 CFR 17.21(g). The original comment period for the proposed rule lasted for 30 days, ending September 21, 2011. The comment period was extended, however, on September 21, 2011 (76 FR 58455), to allow for an additional 30 days to accommodate the large number of commenters. The extended comment period ended on October 21, 2011. We received 15,199 individual comments during the two comment periods. The vast majority of the comments (approximately 15,000) either supported the proposed rule as written or stated that it was not strong enough to address captive breeding of inter-subspecific crossed or generic tigers. We received 109 comments from individuals or organizations that opposed the proposed rule. The remaining 79 comments were either irrelevant to the proposed rule or indecipherable.

Issue 1: Approximately 14,300 comments supported the proposed rule as written, stated that this change in the regulations would reduce the level of illegal trade in both captive and wild tigers, decrease the possibility of captive tigers being held in inhumane conditions, and reduce “rampant” breeding of captive tigers within the United States. However, many of these commenters were also concerned that the change in the regulation would result in the possible overcrowding of sanctuaries or unaccredited institutions that would receive unwanted adult tigers.

Our response: The change in regulations would provide for greater control over captive tigers within the United States. As the CBW regulations are currently written, individuals or institutions that have been housing inter-subspecific crossed or generic tigers could move tigers across State lines for commercial activities without registering under the CBW regulations. While these activities are required to be undertaken in association with a managed breeding program to ensure that deleterious breeding (i.e., inbreeding or inappropriate crosses) does not occur, we have evidence that these requirements may have been violated in some number of cases. Therefore, based on this conclusion, we are acting consistently with the purposes of the Act to limit the authorization of interstate commerce and commercial movement of tigers under the CBW regulations to situations where the end-use of the tiger is to enhance the propagation or survival of the species in the wild by contributing to the conservation of the species.

However, this change in regulations would not directly result in the control of breeding of inter-specific crossed or generic tigers. The Act does not regulate intrastate activities that do not result in a take or the noncommercial interstate movement of a listed species. The only intrastate activity that the Act regulates is the take (e.g., harming, harassing, or killing) of a listed species. Individuals or facilities that maintain such tigers can continue to breed tigers, sell them within their State, or move tigers across State lines for noncommercial purposes without obtaining authorization from us, as long as such activities do not result in a take of the species. However, it is possible that stricter regulation of the interstate commerce of these specimens may result in a reduction in breeding due to a smaller (i.e., intrastate only) market for generic tigers.

It is also possible that, with this change in the CBW regulations and the potentially lower demand for tigers within the United States, individuals or facilities that currently hold inter-subspecific crossed or generic tigers will move their animals to sanctuaries or other zoo facilities, causing these facilities to become overcrowded. We do not believe that such movement will become a significant problem at most zoos and sanctuaries, which generally maintain a high standard of care and, in any case, are required by the Animal Welfare Act and other Federal and State laws and regulations to provide humane treatment for animals. A need may arise, however, for greater coordination between nongovernmental organizations, zoos, and sanctuaries to ensure that all inter-subspecific crossed or generic tigers that end up in sanctuaries or zoos receive adequate housing and care.

Issue 2: Of the nearly 15,000 comments that supported the rule in some form, 527 commenters were opposed to maintaining tigers in captivity at all. These commenters expressed a general belief that tigers should be left in the wild and that captive tigers should be released. While many of these comments supported the change in regulations as necessary, they also expressed the belief that this change should be only the first step that would eventually result in captive tigers being released into the wild and/or no longer bred in captivity.

Our response: As stated above, the Act does not prohibit the ownership of listed species, if the activities being carried out with these specimens do not violate any of the prohibitions of the Act. Therefore, if the animals were legally purchased and moved, the Act does not prohibit an individual or institution from maintaining or even breeding tigers. While we recognize that some people are opposed to maintaining exotic animals in captivity, we do not have the regulatory authority to prohibit such activities. Further, we do not believe that inter-subspecific crossed or generic tigers are suitable for release in the wild, both because they may not be genetically compatible with wild populations, and because, in most cases, they are not suitably conditioned for survival in the wild. Such animals either might starve or could become a menace to livestock and humans. However, we believe that, under the correct circumstances, maintaining listed species in captivity—including tigers—can provide a conservation benefit to the species through education, research, and scientifically based breeding programs.

Issue 3: Many commenters (160) requested that we establish stricter regulations for tigers than what was proposed. Suggestions included establishing regulations that would prohibit anyone from holding or breeding tigers and allow only accredited zoos or sanctuaries to hold tigers. Many of these commenters expressed the desire to eliminate the use of tigers in circuses and animal exhibitions. The comments included suggestions to increase control over breeding programs and to have more frequent inspections of facilities to monitor for abuse or substandard facilities. Some commenters suggested microchipping all captive tigers. Some comments recommended stiffer penalties for poachers within the tiger native range.

Our response: As stated previously, the Act prohibits certain activities with listed species, but does not prohibit every activity that could involve such species. The Act does not regulate ownership or what an owner may do with a tiger as long as the owner obtained the tiger legally and does not harm or kill the tiger or engage in interstate commerce with the animal. We cannot establish regulations that go beyond the prohibitions of the Act, such as limiting ownership or breeding of tigers only to certain institutions or individuals. Anyone may engage in these activities if he or she otherwise complies with all other provisions of the Act, and as long as the actions are legal under other applicable laws (e.g., those of the State in which the activities take place).

When we issue a permit or other authorization under the Act for otherwise prohibited activities, we do have the authority to conduct periodic inspections or otherwise have oversight of permitted activities. This authority, however, does not extend to activities outside the scope of the Act or for activities that are not regulated by the Act. Therefore, we do not have the ability to conduct regular inspections of breeding operations that do not require authorization from us. This type of inspection may be possible in some cases under the Animal Welfare Act, which is implemented by the USDA, but is outside the scope of this regulation. However, if we have evidence of illegal activity, we have the authority to carry out criminal investigations of any facility, whether or not it is permitted.

While we could require microchipping of tigers at a facility that has obtained a permit or other authorization from the Service, we cannot require the microchipping of all tigers within the United States. Microchipping some tigers may give us the ability to track the movement of live animals that are involved in interstate commerce (an otherwise prohibited activity), but we would not be able to track live tigers that do not fall under our jurisdiction. Further, microchipping is unlikely to assist us in investigating the illegal movement of tiger parts within the United States. We also do not have the authority or the resources to monitor and record the birth, death, or transfer of all tigers in the United States. Microchipping a portion of the captive tigers in the United States for tracking purposes might give us a limited picture of the movement and ownership of these animals in the United States, but we do not believe that any limited benefits would outweigh the cost and administrative burden of microchipping and tracking these animals.

We strongly encourage and support programs established by tiger range countries to control and ultimately eliminate poaching of wild tigers. We have been able to fund a variety of anti-poaching programs through various grant programs, including grants under the RTCA. We have also been actively involved in efforts through CITES to assist range countries in monitoring and controlling illegal trade in tigers. We do not have any authority, however, to establish stricter regulations regarding poaching in other countries.

Issue 4: One commenter was of the opinion that the exemption from the CBW registration process violated section 10(c) of the Act since it did not allow the public an opportunity to comment on the merits of activities involving inter-specific crossed or generic tigers.

Our response: By removing the exemption and requiring the submission of an application to either request a permit or register under the CBW regulations, the public will now have an opportunity to comment on the merits of any application to conduct otherwise prohibited activities with tigers.

Issue 5: Many commenters (109) were opposed to removing the exemption. In general, they believe that inter-subspecific crossed or generic tigers contribute to conservation primarily through education, but also by acting as a source of tigers within the United States. Many of these commenters felt that requiring registration under the CBW regulations or requiring a permit to conduct otherwise prohibited activities would ultimately lead to the demise of captive tigers in the United States. Many of these commenters expressed their concern that wild tigers will go extinct in the near future due to habitat loss and poaching, and, therefore, captive-bred tigers are needed to ensure that the species does not go extinct.

Our response: The CBW regulations facilitate the captive breeding of species listed under the Act for conservation purposes by allowing registrants to conduct interstate commerce and move specimens across State lines. The Service recognizes that well-managed breeding programs focusing on specific subspecies and that maintain good genetic diversity among the specimens within the breeding program can provide a long-term benefit to listed species by producing a pool of viable candidates for future reintroduction. We have also stated in the 1998 final rule exempting inter-subspecific crossed or generic tigers from the CBW registration process (63 FR 48638) that inter-subspecific crossed or generic tigers should not be used for conservation-oriented breeding, but could be used for exhibition in a manner designed to educate the public about the ecological role and conservation needs of the species.

The Act does not regulate intrastate activities other than take, such as ownership and breeding, nor does it regulate noncommercial interstate transfers of listed species (e.g., gifts, loans, and exchanges of animals of the same species for genetic management purposes). Removing the exemption for inter-subspecific crossed or generic tigers from the CBW regulations will require anyone who is selling an inter-subspecific crossed or generic tiger across State lines to either register under the CBW regulations or obtain an interstate commerce permit. The Service does not believe that the action taken in this final rule will adversely affect the conservation breeding of tigers within the United States, nor lead to the demise of captive tigers within the United States.

Issue 6: Several commenters expressed the opinion that enough laws or restrictions are already in place to ensure that the legality of activities carried out with tigers. Two commenters pointed directly to the RTCA as a powerful tool to combat illegal trade of tiger parts within the United States. These commenters stated that, since there is no proof of the use of U.S. captive tigers in traditional medicines, the Service does not need to impose additional regulations on tiger breeders in the United States. Five commenters felt that, because there is no proof of such illegal trade within the United States, such trade is not a threat, and, therefore, this rule is arbitrary and capricious under the Administrative Procedure Act.

Our response: While we agree with the commenters on the benefits of the RTCA in combating illegal trade in tiger parts, we do not agree that the existing regulations adequately provide for the conservation of tigers. With the exemption for inter-subspecific crossed or generic tigers, it was difficult to determine whether activities involving tigers were legal because there was no requirement for a permit or other authorization. Monitoring of activities was also hampered by our inability to determine if tigers bred and sold under the exemption were actually inter-subspecific crossed or generic animals. By removing the exemption, we are reinstating regulations that already cover most other endangered and threatened species, thus ensuring better oversight and monitoring. This requirement will be another tool that can be used, in conjunction with the RTCA and other laws, to curb potentially illegal activities within the United States. While we have no evidence indicating that captive tigers are currently being illegally killed for their parts within the United States, we believe that, if wild tiger populations continue to decline, demand for captive tigers and their parts may increase. The final rule is reasonable in light of this potential threat and evidence of continuing declines in tiger population and range, and we have fully explained our reasons for removing the exemption.

Issue 7: Two commenters felt that we made contradictory statements in the proposed rule when we said that individuals who wished to carry out otherwise prohibited activities with inter-subspecific crossed or generic tigers would need to register under the CBW regulations, but then also stated that we did not believe the breeding of inter-subspecific crossed or generic tigers provided a conservation benefit. In other words, they concluded that we would not actually register anyone with inter-subspecific crossed or generic tigers because of our perceived lack of conservation value of such animals.

Our response: The commenters are correct that we do not believe that breeding inter-subspecific crossed or generic tigers, in and of itself, provides a conservation benefit, since the tigers are of unknown or mixed genetic origin. As such, inter-subspecific crossed or generic tigers would not be good candidates for a well-managed conservation-oriented breeding program. In addition, it is unlikely that we would register an operation for the sole purpose of selling tigers across State lines, since a CBW registration is for the purpose of exchanging stock with other breeders or to hold surplus animals not needed for a breeding program. This does not mean, however, that we could not authorize individual permits if the activity being conducted enhanced the propagation or survival of the species in the wild. Under our regulations, it is possible to authorize interstate commerce for an inter-subspecific crossed or generic tiger if the parties involved in the transaction are carrying out activities that enhance the propagation or survival of the species. While it is unlikely that such a commercial transaction would provide a direct benefit to the species, such as reintroduction, there may be indirect benefits that could be obtained from the transaction.

It should also be noted that the requirement to show that authorizing an otherwise prohibited activity, such as interstate commerce, could be met through an individual or institution, or a group of individuals or institutions together, working to provide a benefit to the species in the wild. For example, if one or more zoological institutions were purchasing inter-subspecific crossed or generic tigers for educational and display purposes, they could provide support (e.g., via the solicitation of donations from visitors) to carry out in-situ conservation efforts in the tiger's native range. The Service prefers a clear, ongoing commitment of several years on the part of the applicant to provide in-situ conservation or research support. This ongoing commitment could be fulfilled by a group of institutions working together to maximize their resources for the benefit of tigers in the wild.

Issue 8: Several commenters stated that inter-subspecific crossed or generic tigers have an educational value and, therefore, should still be exempt from the CBW registration to ensure that this benefit could continue. Many of these commenters felt that inter-subspecific crossed or generic tigers are “ambassadors” for the wild tiger and its conservation. One commenter stated that availability of such tigers within the United States removed pressure on wild populations to supply animals for exhibition purposes. One commenter, noting that the Service previously excluded education as a sole justification for registration under the CBW regulations, questioned the basis of this exclusion.

Our response: This rule does not address whether the display of inter-subspecific crossed or generic tigers has an educational value. It is possible that a professionally developed education program using inter-subspecific crossed or generic tigers could indirectly benefit the wild populations of tigers by raising public awareness of the plight of the tiger. Furthermore, no permit or other authorization, including a CBW registration, is necessary to conduct educational programs with such tigers, including crossing State lines to make presentations involving the animals. Given the number of inter-subspecific crossed or generic tigers within the United States, the commenter is correct that wild-caught tigers are not in demand for educational purposes. The purpose of this rule, however, is to reestablish the monitoring and oversight benefits of the CBW regulations to all specimens of tigers, not just purebred specimens.

On December 27, 1993, the Service published a final rule (58 FR 68323) that eliminated public education through exhibition of living wildlife as the sole justification for issuing a CBW registration under § 17.21(g). As one commenter correctly pointed out, the Service made the statement in the 1998 final rule exempting inter-subspecific crossed or generic tigers from the CBW registration process (63 FR 48638) that inter-subspecific crossed or generic tigers should not be used to enhance the propagation of the species, but could be used for exhibition in a manner designed to educate the public about the ecological role and conservation needs of the species. While individuals are not precluded from continuing to provide educational opportunities to the public through the display of inter-subspecific crossed or generic tigers, an educational purpose alone is not enough to support CBW registration per the 1993 rule. The basis for excluding education as the sole justification for a CBW registration was discussed in the final rule on that issue (58 FR 68323) and is outside the scope of this rulemaking.

Issue 9: Two commenters raised questions about the listing status of the inter-subspecific crossed or generic tiger. One commenter questioned whether inter-subspecific crossed or generic tigers meet the standard of listing under the Act and, therefore, whether they are properly subject to regulation by the Service. Another commenter proposed that inter-subspecific crossed or generic tigers within the United States are a new subspecies, the “American tiger.” This commenter provided a description of six “varieties” of “American tigers” that should be, as a group, a new subspecies.

Our response: Whether these animals meet the listing criteria under section 4 of the Act is an issue outside the scope of this rulemaking process. Whether inter-subspecific crossed or generic tigers within the United States would constitute a separate subspecies is a matter that should be addressed by taxonomists and is, therefore, outside the scope of this rulemaking process as well. However, currently the tiger is listed at the species level, not at the subspecies level, so all tiger specimens are covered by the listing.

Issue 10: One commenter noted a study by the National Cancer Institute that found that one “generic” tiger in seven is actually a purebred member of a recognized subspecies, raising the question of how individuals can determine if their tiger is pure or an inter-subspecific crossed or generic tiger. Another commenter raised the question of whether this rule would require genetic testing of tigers and how the cost of that testing would be covered.

Our response: The first commenter was probably referring to a study published in 2008 in Current Biology 1 that found 14-23 percent (approximately 1 in 7 or more) of the “generic” tigers tested were shown to have a verifiable subspecies ancestry (i.e., they are a pure subspecies). The tigers tested in this study came from locations in the United States and abroad. We note that our definition of “generic tiger” includes animals of unknown lineage. It is entirely possible that some animals of unknown lineage actually have a pure subspecies lineage, but the lack of information on their origin requires that they be treated as unknown for the purposes of conservation breeding.

Since pure and generic tigers would be treated the same in regards to permits issued under 50 CFR 17.22 (i.e., interstate and foreign commerce, take, import, or export), there would be no requirement to test tigers within the United States. However, if the owner of a breeding operation wished to become a CBW registrant, that person would need to show how the tigers he or she holds would contribute to the genetic management of the species within the United States. If the owner is unable to document the source and, therefore, subspecies of their tigers, it may be necessary to conduct genetic testing on his/her tigers to prove that they are not inter-specific crossed animals. The cost of such testing would be his/her responsibility.

Issue 11: One commenter questioned the value of maintaining pure subspecies in captivity as a potential pool for reintroduction purposes if the plight of the wild tiger is so dire. The commenter's presumption was that zoos and private breeders do not have the capacity to maintain sufficient numbers of pure subspecies to provide enough specimens if reintroduction is needed. It is unclear whether the commenter meant that a need might develop to use tigers of mixed or unknown genetic ancestry for reintroduction purposes and that the survival of the species may rely on such tigers. However, the commenter expressed the view that efforts by the Service to limit the breeding of inter-subspecific crossed or generic tigers are counterintuitive to the conservation of the species.

Our response: The generally accepted approach to the captive breeding of tigers—or of any species—for conservation purposes is to maintain separate viable populations of each subspecies and to avoid, where possible, breeding tigers of unknown or questionable genetic heritage. Adequacy of founder representation and minimum viable population sizes are issues to be determined by conservation biologists and vary depending on the biological characteristics of the species, and are outside the scope of this rulemaking. The purpose of this rule is to establish a single approach to monitoring the otherwise prohibited activities involving any tiger within the United States.

Issue 12: One commenter felt that the display of inter-subspecific crossed or generic tigers could generate funds for in-situ conservation efforts and should, therefore, be encouraged.

Our response: We agree that the display of tigers, whether purebred subspecies or tigers of unknown genetic ancestry, could generate funds and resources for in-situ conservation efforts. This rule does not limit nor is it intended to discourage in-situ conservation efforts. The rule only provides the same level of monitoring and oversight for all tigers within the United States to ensure that activities carried out with this species are legal and consistent with the purposes of the Act.

We are amending the CBW regulations that implement the Act by removing inter-subspecific crossed or generic tiger (Panthera tigris) (i.e., specimens not identified or identifiable as members of Bengal, Sumatran, Siberian, or Indochinese subspecies (Panthera tigris tigris, P. t. sumatrae, P. t. altaica, and P. t. corbetti, respectively)) from paragraph (g)(6) of 50 CFR 17.21. This action eliminates the exemption from registering and reporting under the CBW regulations by persons who want to conduct otherwise prohibited activities under the Act with live, inter-subspecific crossed or generic tigers born in the United States. This action does not alter the current listing of tigers. Inter-subspecific crossed or generic tigers remain listed as endangered under the Act, and a person would need to qualify for an exemption or obtain an authorization under the remaining statutory and regulatory requirements to conduct any prohibited activities.

We are changing the regulations to ensure that we maintain stricter control over the commercial movement and sale of captive tigers in the United States. As stated in the comment section, we do not believe that breeding inter-subspecific crossed or generic tigers, in and of itself, provides a conservation benefit for the long-term survival of the species. Inter-subspecific tiger crosses and animals of unknown genetic ancestry could not be used for maintaining genetic viability and distinctness of specific tiger subspecies. Tigers of unknown or mixed genetic origin are typically not maintained in a manner to ensure that inbreeding or other inappropriate matings of animals do not occur. By exempting inter-subspecific crossed or generic tigers from the CBW registration process in 1998, we had inadvertently suggested that the breeding of these tigers, in and of itself, qualifies as conservation. By removing the exemption, we reinforce the value of conservation breeding of individual tiger subspecies through the CBW program.

As stated in the proposed rule, we are unaware of any evidence that tiger parts are entering into trade from the captive U.S. population of tigers. However, we recognize that the use of tiger parts and products, including in traditional medicine, poses a significant threat to wild tiger populations. The United States has worked vigorously with other CITES countries to encourage not only the adoption of measures to protect wild tiger populations from poaching and illegal trade, but also the implementation of measures to ensure that breeding of tigers in captivity supports conservation goals and that tigers are not bred for trade in parts and products. While we do not have evidence that parts from captive-bred tigers in the United States are currently entering into international trade, we believe that demand for tiger parts could increase in the future. This threat, combined with the precarious status of tigers in the wild, lead us to conclude that the oversight provided by this final rule will benefit the species.

The previous CBW exemption also created enforcement difficulties. Specifically, law enforcement cases have hinged on whether activities the Service has identified as illegal were actually exempted under the current regulations. By removing the exemption, persons engaged in otherwise prohibited activities will need to obtain a permit or register under the CBW program, giving the Service greater ability to bring enforcement cases for violations involving tigers.

It should be stressed, however, that removing the exemption for inter-subspecific crossed or generic tigers would not result in regulations by the Service of ownership, intrastate commerce, or noncommercial movement of these tigers across State lines, as long as they are not killed or harmed. These activities are not prohibited by the Act, and we have no authority to prohibit or otherwise regulate them.

Finally, we reorganized paragraph (g)(6), redesignating subparagraphs to make the section clearer. With the exception of removing inter-subspecific crossed or generic tigers, the text is essentially the same as it previously appeared in 50 CFR 17.21(g)(6).

Regulatory Planning and Review (Executive Orders 12866 and 13563): Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant because it may create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility Act: Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions) (5 U.S.C. 601 et seq.). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard. We expect that the majority of the entities involved in taking, exporting, re-importing, and selling in interstate or foreign commerce of inter-subspecific crossed or generic tigers would be considered small as defined by the SBA.

Currently, businesses conducting activities with inter-subspecific crossed or generic tigers are exempt from registration under the CBW regulations, if the activities are consistent with the purposes of the ESA and CBW program. This rule would require businesses that are otherwise carrying out these activities to apply for authorization under the Act and pay an application fee of $100 for a one-time interstate commerce permit or $200 to register under the CBW program (valid for 5 years).

Currently, there is no Federal or State mechanism in place that tracks or monitors the extent of business activities involving generic tigers. With the exemption from registration by facilities that are conducting activities in compliance with the current CBW regulations, FWS does not have data on how many businesses are involved in the interstate commerce of generic tigers, the number of businesses for which an interstate commerce permit or registration in the CBW program will be a viable option, and the economic impacts if prospective applicants are unable to either secure an interstate commerce permit or registration in the CBW program. While the U.S. Department of Agriculture regulates some aspects of holding large cats like tigers, their authority does not extend to all facilities that maintain tigers. As such, there is not a centralized database or collection of data that would identify the number of facilities within the United States. While some State governments may monitor or even regulate some aspects of holding tigers, either pure-bred or generic, there is not a universal approach that would render any significant data on those facilities that hold tigers throughout the United States. Nonetheless, based on the comments received during the public comment period, FWS anticipates that the number of affected small businesses is small and either registration in the CBW program or an interstate commerce permit will be a viable option at a modest expense. Therefore, the regulatory change is not major in scope and will create only a modest financial or paperwork burden on the affected members of the public.

We, therefore, certify that this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

Small Business Regulatory Enforcement Fairness Act: This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Would not have an annual effect on the economy of $100 million or more. This rule removes the inter-subspecific crossed or generic tigers from the exemption to register under the CBW regulations. Individuals and captive-breeding operations would need to obtain endangered species permits or other authorization to engage in certain otherwise prohibited activities. This rule would not have a negative effect on the economy. It will affect all businesses, whether large or small, the same. There is not a disproportionate share of benefits for small or large businesses.

b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, tribal, or local government agencies; or geographic regions. This rule would result in a small increase in the number of applications for permits or other authorizations to conduct otherwise prohibited activities with inter-subspecific crossed or generic tigers.

c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.):

a. This rule would not significantly or uniquely affect small governments. A Small Government Agency Plan is not required.

b. This rule would not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings: Under Executive Order 12630, this rule would not have significant takings implications. A takings implication assessment is not required. This rule is not considered to have takings implications because it allows individuals to obtain authorization for otherwise prohibited activities with the inter-subspecific crossed or generic tigers when issuance criteria are met.

Federalism: This revision to part 17 does not contain significant Federalism implications. A Federalism Assessment under Executive Order 13132 is not required.

Civil Justice Reform: Under Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of subsections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act: This rule does not contain any new information collections or recordkeeping requirements for which Office of Management and Budget (OMB) approval is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has reviewed and approved the information collection requirements for the Division of Management Authority's permit program and assigned OMB Control Number 1018-0093, which expires May 31, 2017. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA): The Service has determined that this action is a regulatory change that is administrative and procedural in nature. This rule requires that persons engaging in otherwise prohibited activities with inter-subspecific crossed or generic tigers register under the CBW regulations at 50 CFR 17.21(g), but does not change the standards in regard to prohibited activities or exemptions from these prohibitions in any way. Previously, any otherwise prohibited activity with an inter-subspecific crossed or generic tiger had to be for the purpose of enhancing the propagation or survival of the species, and that standard has not changed. Other requirements such as limitations with respect to nonliving wildlife, identification of animals to be re-imported, requirements for animals to be permanently exported, and recordkeeping requirements have not changed. The difference is that persons conducting these activities with inter-subspecific crossed or generic tigers that previously did not have to register will now have to register with the Service. As such, the amendment is categorically excluded from further NEPA review as provided by 43 CFR 46.210(i), of the Department of the Interior Implementation of the National Environmental Policy Act of 1969 final rule (73 FR 61292; October 15, 2008). No further documentation will be made.

Government-to-Government Relationship with Tribes: Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects.

Energy Supply, Distribution or Use: Executive Order 13211 pertains to regulations that significantly affect energy supply, distribution, and use. This rule would not significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

Data Quality Act: In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov at Docket No. FWS-R9-IA-2011-0027 and upon request from the person listed in FOR FURTHER INFORMATION CONTACT.

For the reasons given in the preamble, we are amending part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The B season apportionment of the 2016 Pacific cod total allowable catch (TAC) allocated to trawl catcher vessels in the BSAI is 5,460 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the B season apportionment of the 2016 Pacific cod TAC allocated to trawl catcher vessels in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 5,000 mt and is setting aside the remaining 460 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 31, 2016.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.