Federal Register Vol. 82, No.128,

I. Background

The USDA Agricultural Marketing Service (AMS) administers the National Organic Program (NOP), under the authority of the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501-6522). The regulations implementing the NOP, also referred to as the USDA organic regulations, were published December 21, 2000 (65 FR 80548) and became effective on October 21, 2002. Through these regulations, AMS oversees national standards for the production, handling, and labeling of organically produced agricultural products.

Since October 2002, the USDA organic regulations have been frequently amended, mostly for changes to the National List in 7 CFR 205.601-205.606. The National List identifies synthetic substances that may be used and the nonsynthetic substances that must not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The OFPA and USDA organic regulations specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural substance and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.

The OFPA authorizes the National Organic Standards Board (NOSB), operating in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2 et seq.), to develop recommendations to amend the National List. The NOSB assists in the evaluation of substances for organic production and handling and advises the Secretary on the USDA organic regulations. The OFPA also requires a sunset review of all substances included on the National List within five years of their addition to or renewal on the list. If a listed substance is not reviewed by the NOSB and renewed by the USDA within the five-year period, its allowance or prohibition on the National List is no longer valid. This periodic review of National List substances is referred to as “sunset review.” Under the authority of the OFPA, the Secretary can amend the National List through rulemaking based upon proposed amendments recommended by the NOSB.

The NOSB's sunset review of substances on the National List includes consideration of public comments and applicable supporting evidence that express a continued need for the use or prohibition of the substance(s) as required by the OFPA. Recommendations to either continue or discontinue an authorized exempted synthetic substance (7 U.S.C. 6517(c)(1)) are developed by the NOSB based on evaluation of technical information, public comments, and supporting evidence that demonstrate that the substance is: (a) Harmful to human health or the environment; (b) no longer necessary for organic production due to the availability of alternative wholly nonsynthetic substitute products or practices; or (c) inconsistent with organic farming and handling practices.

In accordance with the sunset review process published in the Federal Register on September 16, 2013 (78 FR 61154), this final rule would amend the National List to remove eight substances as recommended to the Secretary by the NOSB on October 29, 2015. Additionally, this final rule would renew three substances allowed for use in organic products based on information that there is a continued need for these materials.

This final rule amends the National List to remove eight exemptions (allowances) for: Lignin sulfonate, furosemide, magnesium carbonate, chia, dillweed oil, frozen galangal, frozen lemongrass, and chipotle chile peppers. The NOSB recommended that these substances should be removed from the National List based on its 2017 sunset review. In summary, the NOSB concluded that these substances are no longer needed in organic production or handling because there are alternative practices or materials. AMS concurs with these recommendations for removal as described below.

The NOSB considered public comments and other information to determine whether these substances continue to meet the OFPA criteria (7 U.S.C. 6517(c) and 6518(m)) for inclusion on the National List. With regard to (i) lignin sulfonate (§ 205.601(1)(l)—synthetic substance allowed as a floating agent in post-harveset handling), (ii) furosemide (§ 205.603(a)—synthetic substance allowed for livestock medical treatment), and (iii) magnesium carbonate (§ 205.605(b)—synthetic ingredient allowed in or on organic processed proeducts), the NOSB concluded that these three substances are no longer necessary for organic production or postharvest handling and alternative substances are available.

AMS received no public comments concerning the proposed removal of lignin sulfonate (as as floating agent in post-harvest handling), furosemide, and magnesium carbonate from the National List. AMS has reviewed and accepts the NOSB recommendations to remove these substances from the National List when the listings are due to sunset, or expire. Therefore, after June 27, 2017, lignin sulfonate (as as floating agent in post-harvest handling), furosemide, and magnesium carbonate will no longer be allowed for use in organic production or handling.1

With regard to chia (Salvia hispanica L.), dillweed oil, galangal (frozen), lemongrass (frozen), and peppers (chipotle chile), the NOSB considered public comments and other information to determine whether these five substances continue to meet the OFPA criteria for inclusion on the National List. These substances appear in section 205.606 of the National List which allows the use of nonorganic forms of these substances when the organic form is not commercially available.2 The NOSB recommended that these substances be removed because adequate organic sources are available in the supply chain and nonorganic forms are not needed.

AMS received no public comments concerning the proposed removal of chia, dillweed oil, frozen galangal, frozen lemongrass, and chipotle chile peppers from the National List. AMS has reviewed and accepts the NOSB recommendations to remove these substances from the National List when the listings are due to sunset, or expire. Therefore, after June 27, 2017, nonorganic forms of chia, dillweed oil, frozen galangal, frozen lemongrass, and chipotle chile peppers will no longer be allowed for use in organic products.

Two notices announcing NOSB public meetings were published in the Federal Register on March 12, 2015 (80 FR 12975) and on September 8, 2015 (80 FR 53759). These notices invited the public to provide comments to the NOSB for the 2017 sunset review. The notices informed the public that the listings discussed in this final rule would expire from the National List on June 27, 2017, if not reviewed by the NOSB and renewed by the Secretary.

On January 18, 2017, AMS published a proposed rule in the Federal Register (82 FR 5431) to notify the public and solicit comments on AMS' proposed action to remove eleven substances from the National List based on the NOSB's 2017 sunset recommendations. The comment period for the proposed rule was extended an additional 30 days to April 19, 2017, per a Federal Register document published on February 17, 2017 (82 FR 10967).

OFPA, as amended (7 U.S.C. 6501-6522), authorizes the Secretary to make amendments to the National List based on proposed recommendations developed by the NOSB. Sections 6518(k)(2) and 6518(n) of OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or removal from the National List. The National List petition process is implemented under § 205.607 of the USDA organic regulations. The National List Petition Guidelines (NOP 3011) are published in the NOP Handbook which is available on the AMS Web site, http://www.ams.usda.gov/nop. The guidelines describe the information to be included for all types of petitions submitted to amend the National List. AMS published a revised sunset review process in the Federal Register on September 16, 2013 (78 FR 56811).

This rule does not meet the definition of a significant regulatory action contained in section 3(f) of Executive Order 12866, and is not subject to review by the Office of Management and Budget (OMB). Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

Pursuant to the requirements set forth in the RFA, AMS performed an economic impact analysis on small entities in the final rule published in the Federal Register on December 21, 2000 (65 FR 80548). AMS has also considered the economic impact of this action on small entities. The impact on entities affected by this proposed rule would not be significant. The effect of this rule would be to prohibit the use of eight substances that have limited public support and may no longer be used because alternatives to these substances have been developed and implemented by organic producers or organic handlers (food processors). AMS concludes that the economic impact of removing lignin sulfonate, furosemide, magnesium carbonate, chia, dillweed oil, frozen galangal, frozen lemongrass, and chipotle chile peppers from the National List would be minimal to small agricultural firms because alternative practices or substances are commercially available. As such, these substances are to be removed from the National List under this rule.

This rule would also allow for the continued use of three nonorganic agricultural susbstances: Turkish bay leaves, inulin-oligofructose enriched, and whey protein concentrate. AMS concludes that renewing these three ingredients would minimize impact to small agricultural firms because alternative products or organic forms of these ingredients are not commercially available and handlers need to use the nonorganic forms. Accordingly, AMS certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. See 13 CFR 121.201.

According to NOP's Accreditation and International Activities Division, the number of certified U.S. organic crop and livestock operations totaled over 24,669 in March 2017. The list of certified operations is available on the AMS NOP Web site at http://www.ams.usda.gov/nop. AMS believes that most of these entities would be considered small entities under the criteria established by the SBA. In addition, the USDA has 81 accredited certifying agents who provide certification services to producers and handlers. A complete list of names and addresses of accredited certifying agents may be found on the AMS NOP Web site at http://www.ams.usda.gov/nop. AMS believes that most of these accredited certifying agents would be considered small entities under the criteria established by the SBA.

Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect.

Pursuant to section 6519(f) of OFPA, this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399), nor the authority of the Administrator of the U.S. Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136-136(y)).

No additional collection or recordkeeping requirements are imposed on the public by this rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35.

This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

AMS received seven public comments from ingredient manufacturers, organic handlers, and a trade association on the proposal to remove the following three substances from the National List: Turkish bay leaves, inulin-oligofructose enriched, and whey protein concentrate. These substances are listed in section 205.606 of the National List, which allows nonorganic forms to be used in organic products when organic forms are not commercially available. Removing these substances from the National List would mean that only organic forms of these ingredients could be used in organic products.

AMS received public comments which opposed the removal of Turkish bay leaves from the National List. These public comments stated that organic Turkish bay leaves are not available in the quantity or quality needed to meet organic handling needs. The comments explained that the different flavor profile of ground organic Turkish bay leaves would negatively impact finished products. Comments requested that AMS maintain the allowance for nonorganic Turkish bay leaves while suppliers pursue sources of organic Turkish bay leaves in sufficient quality and quantity to meet industry needs.

AMS also received public comments opposing the proposed removal of inulin-oligofructose enriched from the National List. Comments acknowledged that there are organic or alternate forms of inulin available, such as inulin from organic agave and fructooligosaccharides, but explained that these are not equivalent to inulin-oligofructose enriched, which is sourced only from chicory root and provides unique functionality for use as a prebiotic in organic infant formula. The comments indicated that an adequate supply of organic chicory root is not commercially available.

AMS received public comment opposing the removal of whey protein concentrate from the National List. Whey protein concentrate is used as an ingredient in various products including bakery, confectionary, processed meat, infant formula, and dairy products. Public comments submitted indicated that whey protein concentrate is essential to organic processed products and is not commercially available in organic form at this time.

In consideration of the new information presented in public comments, AMS has determined that nonorganic forms of Turkish bay leaves, inulin-oligofructose enriched, and whey protein concentrate are essential to organic production and handling and should remain on the National List. The USDA organic regulations may allow the use of nonorganic substances that are not commercially available in organic form, quality, or quantity, and are necessary to organic handling. As with other substances in section 205.606 of the National List, organic handlers are permitted to use the nonorganic substance only if the organic substance is not commercially available. Handlers will need to demonstrate, and certifiers will need to verify, that the organic substance is not available in the form, quality or quantity needed. Further, any member of the public may petition to remove an agricultural substance from the National List if an organic substance becomes commercially available.3

For the reasons set forth in the preamble, 7 CFR part 205 is amended as follows:

This rule is issued under Marketing Agreement and Order No. 956, as amended (7 CFR part 956), regulating the handling of sweet onions grown in the Walla Walla Valley of southeast Washington and northeast Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13771, 13563, and 13175.

This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

Under the order, Walla Walla sweet onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. Assessment rates issued under the order are intended to be applicable to all assessable Walla Walla sweet onions for the entire fiscal period and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on January 1 and ends on December 31.

In an interim rule published in the Federal Register on February 27, 2017, and effective on February 28, 2017 (82 FR 11789), § 956.202 was amended by decreasing the assessment rate established for Walla Walla sweet onions for the 2017 and subsequent fiscal periods from $0.22 to $0.10 per 50-pound bag or equivalent. The decrease in the assessment rate allows the Committee to reduce its financial reserve while still providing adequate funding to meet program expenses.

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

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are 9 handlers of Walla Walla sweet onions subject to regulation under the order and approximately 30 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

During the 2016 marketing year, the Committee reported that approximately 304,500 50-pound bags or equivalents of Walla Walla sweet onions were shipped into the fresh market. Based on information reported by USDA's Market News Service, the average 2016 marketing year f.o.b. shipping point price for the Walla Walla sweet onions was $19.55 per 50-pound equivalent. Multiplying the $19.55 average price by the shipment quantity of 304,500 50-pound equivalents yields an annual crop revenue estimate of $5,952,975. The average annual revenue for each of the 9 handlers is therefore calculated to be $661,442 ($5,952,975 divided by 9), which is considerably less than the Small Business Administration threshold of $7,500,000. Consequently, all of the Walla Walla sweet onion handlers could be classified as small entities.

In addition, based on information provided by the National Agricultural Statistics Service (NASS), the average producer price for Walla Walla sweet onions for the 2011 through 2015 marketing years is $16.24 per 50-pound equivalent. NASS has not released data regarding the 2016 marketing year at this time. Multiplying the 2011-2015 marketing year average price of $16.24 by the estimated 2017 marketing year shipments of 325,000 50-pound equivalents yields an annual crop revenue estimate of $5,278,000. The estimated average annual revenue for each of the 30 producers is therefore calculated to be approximately $175,933 ($5,278,000 divided by 30), which is less than the Small Business Administration threshold of $750,000. In view of the foregoing, the majority of Walla Walla sweet onion producers, and all of the Walla Walla sweet onion handlers, may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2017 and subsequent fiscal periods from $0.22 to $0.10 per 50-pound bag or equivalent of Walla Walla sweet onions handled. The Committee also unanimously recommended 2017 expenditures of $93,250. The assessment rate of $0.10 is $0.12 lower than the previously established assessment rate. Applying the $0.10 per 50-pound bag or equivalent assessment rate to the Committee's 325,000 50-pound bag or equivalent crop estimate should provide $32,500 in assessment income. Thus, income derived from handler assessments, along with interest, other income, and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses. This action will allow the Committee to reduce its financial reserve while still providing adequate funding to meet program expenses.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers and may reduce the burden on producers.

In addition, the Committee's meeting was widely publicized throughout the Walla Walla sweet onion industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 6, 2016, meeting was a public meeting, and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Walla Walla sweet onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

Comments on the interim rule were required to be received on or before April 28, 2017. One comment was received during the comment period from an individual who was outside of the regulated production area. The comment was generally opposed to all government regulation. In the comment, the commenter failed to specifically address any of the merits of the rule. Accordingly, no changes have been made to the rule, based on the comment received.

Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: https://www.regulations.gov/document?D=AMS-SC-16-0116-0001.

This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; the Paperwork Reduction Act (44 U.S.C. Chapter 35); and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is hereby found that finalizing the interim rule, without change, as published in the Federal Register (82 FR 11789, February 27, 2017) will tend to effectuate the declared policy of the Act.

Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2013-10-03, Amendment 39-17456 (78 FR 31386, May 24, 2013) (“AD 2013-10-03”). AD 2013-10-03 applied to all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200, -300, -500, and -600 series airplanes. The SNPRM published in the Federal Register on March 22, 2017 (82 FR 14642) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on March 1, 2016 (81 FR 10540) (“the NPRM”). The NPRM was prompted by reports of corroded and cracked bogie beams under the bogie stop pad. The NPRM proposed to remove Model A340-500, and -600 series airplanes from the applicability, remove certain one-time inspections of the MLG bogie beams and the sliding piston sub-assembly; revise certain compliance times and provide, for certain airplanes, an optional terminating action for the repetitive actions. The SNPRM proposed to require replacement of a MLG having part number (P/N) 201252 series and P/N 201490 series with a MLG that has an improved bogie beam, which would constitute terminating action for the repetitive inspections on the modified MLG. We are issuing this AD to detect and correct damage or corrosion under the bogie stop pad of both MLG bogie beams; this condition could result in a damaged bogie beam and consequent detachment of the beam from the airplane, collapse of the MLG, or departure of the airplane from the runway, possibly resulting in damage to the airplane and injury to occupants.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0108, dated June 8, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. The MCAI states:

The required terminating action (for a MLG having P/N 201252 series or P/N 201490 series) and the optional terminating action (for a MLG having P/N 10-210 series) are modifications of the bogie beam of a MLG, which consist of installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3984.

We gave the public the opportunity to participate in developing this AD. We considered the comment received. Air Line Pilots Association, International supported the SNPRM.

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

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

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

Airbus has issued the following service information.

• Airbus Service Bulletin A330-32-3248, Revision 05, including Appendix 1, dated May 4, 2016; and Airbus Service Bulletin A340-32-4286, Revision 02, including Appendix 1, dated January 5, 2016; which describe procedures for doing an inspection for damage and corrosion of the MLG sliding piston sub-assembly, bogie beam stop pad and the bogie beam under the stop pad, and related investigative and corrective actions. These documents are distinct since they apply to different airplane models.

• Airbus Service Bulletin A330-32-3268, Revision 01, dated September 21, 2015, which describes procedures for modification of the bogie beam of a MLG having P/N 10-210 series on Model A330 airplanes that includes installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets.

• Airbus Service Bulletin A330-32-3275, dated December 23, 2015, which describes procedures for modification of the bogie beam of a MLG having P/N 201252 series or P/N 201490 series on Model A330 airplanes that includes installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets.

• Airbus Service Bulletin A340-32-4300, dated April 20, 2015; and Revision 01, dated September 21, 2015; which describe procedures for modification of the bogie beam of a MLG having P/N 10-210 series on Model A340 airplanes that include installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets. These service bulletins are distinct due to editorial revisions.

• Airbus Service Bulletin A340-32-4305, dated December 23, 2015, which describes procedures for modification of the bogie beam of a MLG having P/N 201252 series or P/N 201490 series on Model A340 airplanes that includes installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets.

Messier-Bugatti-Dowty has issued the following service information.

• Messier-Bugatti-Dowty Service Bulletin A33/34-32-305, including Appendix A, dated April 13, 2015, which describes procedures for modification of the bogie beam of a MLG having MLG P/N 10-210 series that includes installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets.

• Messier-Bugatti-Dowty Service Bulletin A33/34-32-306, Revision 1, including Appendix A, dated May 31, 2016, which describes procedures for modification of the bogie beam of a MLG having P/N 201252 series or P/N 201490 series that includes installing a nickel under chrome coating, a new bogie beam stop pad, and new stop pad brackets.

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

We estimate that this AD affects 89 Model A330-200, -200 Freighter, and -300 series airplanes of U.S. registry.

We estimate that it will take about 13 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $98,345, or $1,105 per product.

Currently, there are no Model A340-200 or -300 series airplanes on the U.S. Register. However, if an affected airplane is imported and placed on the U.S. Register in the future, it would be subject to the same per-airplane cost specified above for the Model A330-200, -200 Freighter, and -300 series airplanes.

In addition, we estimate that any necessary follow-on actions will take about 24 work-hours and require parts costing $78, for a cost of $2,118 per product. We have no way of determining the number of aircraft that might need these actions.

According to the manufacturer, all of the parts costs of the optional terminating action specified in this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate. We have received no definitive data that would enable us to provide the work-hour cost estimates for the optional terminating action specified in this AD.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model DHC-8-401 and DHC-8-402 airplanes. The NPRM published in the Federal Register on March 2, 2017 (82 FR 12301). The NPRM was prompted by a report that a pilot was unable to move the rudder pedal due to an obstruction. The NPRM proposed to require an inspection to determine if wiring shrouds are present, and modifying the wiring shrouds if necessary. We are issuing this AD to prevent an obstruction that could prevent rudder pedal movement during critical phases of flight or ground operations, potentially resulting in loss of control of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2016-27, dated September 14, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model DHC-8-401 and DHC-8-402 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0125.

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

The Air Line Pilots Association, International, stated that it supports the NPRM.

Horizon Air requested that we revise the proposed AD to refer to the newest version of the service information, Bombardier Service Bulletin 84-25-169, Revision B, dated February 17, 2017. Horizon Air also asked that we provide credit for previous actions done using Bombardier Service Bulletin 84-25-169, Revision A, dated April 25, 2016.

We agree with the commenter's requests. We have determined that the new service information does not require any additional actions for airplanes modified using Revision A. We have revised this AD to refer to Bombardier Service Bulletin 84-25-169, Revision B, dated February 17, 2017. We have also added paragraph (h) to this AD to provide credit for previous actions and redesignated subsequent paragraphs accordingly.

Horizon Air requested that we revise the requirements of the proposed AD to mandate only the actions in paragraph 3.B., “Procedure” of the Accomplishment Instructions of Bombardier Service Bulletin 84-25-169, Revision B, dated February 17, 2017, rather than the entire Accomplishment Instructions. Horizon Air explained that requiring the job set-up and close-out sections of the service information restricts an operator's ability to perform other maintenance at the same time as incorporating the service information.

We agree with the commenter's request because it provides operators additional flexibility, while still ensuring the unsafe condition is corrected. We have revised paragraph (g) of this AD accordingly.

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

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

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

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

We reviewed Bombardier Service Bulletin 84-25-169, Revision B, dated February 17, 2017. This service information describes procedures for an inspection to verify if wiring shrouds are installed, and modification of any existing wiring shrouds. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 82 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

On November 18, 2016, OSHA published a final rule revising and updating the general industry Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) standards (29 CFR 1910, subparts D and I) (81 FR 82494) to provide workers with greater protections from slip, trip and fall hazards. This technical amendment adds to § 1910.8, which displays OSHA's approved general industry collections of information under the Paperwork Reduction Act of 1985 (44 U.S.C. 3501 et seq.), the OMB control number for the new collection requirements in the final rule.

Final subpart D contains three new collections of information. First, final § 1910.23(b)(10) requires that employers ensure any ladder with structural or other defects be tagged immediately with “Dangerous: Do Not Use” or similar language and removed from service until “repaired . . . or replaced.” The information will alert employers and workers that the ladder is not safe and must not be used.

Second, final § 1910.27(b)(1)(i) requires, before any rope descent system is used, that the building owner inform the employer in writing that the building owner has identified, tested, certified, and maintained each anchorage so it is capable of supporting at least 5,000 pounds (268 kg), in any direction for each employee attached. The information must be based on an annual inspection by a qualified person and certification of each anchorage by a qualified person, as necessary, and at least every 10 years. The information will assure employers and workers that the building owner has inspected, tested and certified the anchorage, which the employer may not own or have any control over, as safe to use. A related provision, final § 1910.27(b)(1)(ii), requires that the employer ensure no employee uses any anchorage before the employer has obtained written information from the building owner indicating that each anchorage meets the requirements of § 1910.27(b)(1)(i). The employer must keep the information for the duration of the job. The information will assure employers and workers that the anchorages employers use, but may not own or have any control over, are safe to use.

Third, final § 1910.28(b)(1)(ii) specifies that when employers can demonstrate that it is not feasible or creates a greater hazard to use guardrail, safety net, or personal fall protection systems on residential roofs, they must develop and implement a written fall protection plan that meets the requirements of 29 CFR 1926.502(k) and training that meets the requirements of 29 CFR 1926.503(a) and (c). The information collection ensures that employers and workers will know what alternative measures will be used at a given worksite to provide an appropriate level of protection when conventional fall protection is not feasible.

These requirements are contained in the Information Collection Request (ICR) approved by OMB under control number 1218-0199, which OSHA included in the final rule published in the Federal Register (81 FR 82978-80). The collections of information in final subpart D are necessary to ensure workers are protected from death or injury from falls from elevated heights.

Final subpart I expands the existing collections of information contained in the hazard assessment and verification requirements in 29 CFR 1910.132 to include assessments for workers who use personal fall protection systems (29 CFR 1910.140). These requirements are contained in the Information Collection Request (ICR) approved by OMB under control number 1218-0205, which OSHA included in the final rule published in the Federal Register (81 FR 82978-80).

Additional public comment on the information collections in the final rule is not necessary. The public already has had the opportunity to comment on the collections of information and OMB has approved them. This revision of § 1910.8 is a purely technical step to increase public awareness of OMB's approval of the collections of information.

Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor's Order No. 1-2012 (77 FR 3912).

For the reasons stated in the preamble, the Occupational Safety and Health Administration amends 29 CFR part 1910 as follows:

The City of New Haven, the owner of the bridge, requested a temporary deviation from the normal operating schedule to facilitate rehabilitation of the bridge, specifically replacement of the bridge deck. The Chapel Street Bridge, across the Mill River, mile 0.4 at New Haven, Connecticut offers mariners a vertical clearance of 7.9 feet at mean high water and 14 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.213(d).

Under this temporary deviation the Chapel Street Bridge will operate as follows: From 12:01 a.m. July 10, 2017 until 11:59 p.m. July 26, 2017, the Chapel Street Bridge will open for the passage of vessels requiring an opening provided two hours of advance notice is furnished to the owner of the bridge; except that, from 7:30 a.m. to 8:30 a.m. and 4:45 p.m. to 5:45 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of vessel traffic. The bridge will remain closed to all vessels requiring an opening from 12:01 a.m. July 27, 2017 until 11:59 p.m. August 7, 2017 to facilitate the pouring/curing of new bridge deck material. From 12:01 a.m. August 8, 2017 until 11:59 p.m. September 9, 2017 the bridge will open for the passage of vessels requiring an opening provided two hours of advance notice is furnished to the owner of the bridge; except that from 7:30 a.m. to 8:30 a.m. and 4:45 p.m. to 5:45 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of vessel traffic.

The bridge routinely opens for commercial vessels. Nevertheless, outreach with mariners has indicated the requirement for two hours of advance notice will not impede routine waterway operations. Mariners also offered no objection to a ten day closure of the draw in order to complete the necessary deck replacement. The concrete pour and curing process can be accomplished in four days, but a ten day closure period has been requested in order to take inclement weather into account. The bridge will resume operations as soon as the curing process has been completed.

Vessels that can pass under the bridge without an opening may do so at all times. The bridge will be not able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The New York City Department of Transportation, the owner of the bridge, requested a temporary deviation from the normal operating schedule to facilitate application of protective coating to the bridge as well as maintenance of operating machinery. The Hutchinson River Parkway Bridge, across the Hutchinson River, mile 0.9 at New York, New York has a vertical clearance of 30 feet at mean high water and 38 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.793(b).

On May 1, 2017, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Hutchinson River, New York, NY” in the Federal Register (82 FR 20257). Under that temporary deviation, between April 3, 2017 and September 29, 2017, the draw of the Hutchinson River Parkway Bridge would remain closed to navigation for a period not to exceed 7 days; the draw would then open for vessels in accordance with established operating regulations for a period not to exceed another 7 days, after which the cycle would repeat.

Due to project delays prompted by inclement weather and bridge equipment failure, the New York City Department of Transportation has requested that between June 9, 2017 and August 31, 2017 the draw of the Hutchinson River Parkway Bridge remain closed to navigation for a period not to exceed 14 days; the draw will then open for vessels in accordance with established operating regulations for a period not to exceed 7 days, after which the cycle will repeat. Between September 1, 2017 and September 29, 2017, the draw will remain closed to navigation for a period not to exceed 7 days; the draw will then open for vessels in accordance with established operation regulations for another 7 days, after which the cycle will repeat.

Vessels that can pass under the bridge without an opening may do so at all times. The bridge will not be able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The owner of the bridge, the Metropolitan Transportation Authority, requested a temporary deviation in order to complete rehabilitation work associated with the replacement of lift span machinery. The Marine Parkway (Gil Hodges) Bridge across Rockaway Inlet, mile 3.0 at Queens, New York has a vertical clearance of 55 feet at mean high water and 59 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.795(a).

The temporary deviation will allow the owner of the Marine Parkway (Gil Hodges) Bridge to require vessels seeking an opening of the draw to submit a minimum of two hours of advance notice on weekdays (Monday through Friday) between the hours of 8 a.m. and 4 p.m. from July 1, 2017 to December 22, 2017.

The waterway is transited by seasonal recreational traffic as well as commercial vessels, largely tug and barge combinations. The 55 foot vertical clearance while the bridge is in the closed position offers the bulk of commercial traffic sufficient room to transit under the bridge in the closed position. Vessels that can pass under the bridge without an opening may do so at all times. The bridge will be able to open for emergencies. There is no immediate alternate route for vessels unable to pass through the bridge when in the closed position.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by this temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

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 doing so would be impracticable. The final details of this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect mariners and vessels from the hazards associated with a maritime fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register because doing so would be impracticable and contrary to the public interest. Delaying the effective date would be contrary to the rule's objectives of ensuring safety of life on the navigable waters and protection of persons and vessels near the event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo (COTP) has determined that a maritime fireworks show presents significant risks to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks show is taking place.

This rule establishes a safety zone on July 27, 2017, or in the event of inclement weather July 28, 2017, from 9:15 p.m. until 10:45 p.m. The safety zone will encompass all waters of the Oswego Harbor, Oswego, NY contained within a 350-foot radius of the breakwall between positions 43°27′54″ N., 076°31′24″ W. then northeast to 43°27′59″ N., 076°31′12″ W. (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This 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.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

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

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

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

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such 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 it is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a safety zone. It is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(g) of the Instruction, which pertains to establishment of safety zones. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble.

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:

This rule establishes three safety zones for fireworks displays. Each event and its corresponding regulatory history are discussed below.

City of West Haven Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.13). This event has been included in this rule due to deviation from the cite date.

Village of Asharoken Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.24). This event has been included in this rule due to deviation from the cite position.

Riverfest Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.23). This event has been included in this rule due to deviation from the cite date.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The event sponsors were late in submitting marine event applications. These late submissions did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before these events take place. It is impracticable to publish an NPRM because we must establish these safety zones by July 3, 2017. Thus, waiting for a comment period to run is also contrary to the public interest as it would inhibit the Coast Guard's mission to keep the ports and waterways safe.

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

The Coast Guard is issuing this temporary rule under authority in 33 U.S.C. 1231. The COTP LIS has determined that the safety zones established by this temporary final rule are necessary to provide for the safety of life on navigable waterways before, during and after these scheduled events.

This rule establishes three safety zones for three fireworks displays. The location of these safety zones are as follows:

This rule prevents vessels from entering, transiting, mooring, or anchoring within the areas specifically designated as a safety zone and restricts vessel movement around the locations of the marine events to reduce the safety risks associated with it during the period of enforcement unless authorized by the COTP or designated representative.

The Coast Guard will notify the public and local mariners of these safety zones through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on 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.

The Coast Guard determined that this rule is not a significant regulatory action for the following reasons: (1) The enforcement of these safety zones will be relatively short in duration; (2) persons or vessels desiring to enter these safety zones may do so with permission from the COTP LIS or a designated representative; (3) these safety zones are designed in a way to limit impacts on vessel traffic, permitting vessels to navigate in other portions of the waterway not designated as a safety zone; and (4) the Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners to increase public awareness of this safety zone.

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

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

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

This rule 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 Orders 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 temporary rule involves the establishment of three temporary safety zones. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A Record of Environmental Consideration for Categorically Excluded Actions will be 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:

This rulemaking establishes seven safety zones for fireworks displays. Each event and its corresponding regulatory history are discussed below.

Crescent Beach Club Fireworks is a first time marine event with no regulatory history.

The City of Stamford Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.12). This event has been included in this rule due to deviation from the cite date.

The City of Norwich July Fireworks, now called the American Ambulance Services Fireworks, is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.11). This event has been included in this rule due to deviation from the cite date.

The City of Middletown Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.9). This event has been included in this rule due to deviation from the cite date and position.

Greenwich Parks and Recreation Fireworks is a first time marine event with no regulatory history.

The Mason's Island Yacht Club Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.21). This event has been included in this rule due to deviation from the cite date.

The Madison Fireworks is a recurring marine event with regulatory history and is cited in 33 CFR 165.151(7.38). This event has been included in this rule due to deviation from the cite date.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The event sponsors were late in submitting marine event applications. These late submissions did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before these events take place. It is impracticable to publish an NPRM because we must establish these safety zones by June 22, 2017. Further, waiting for a comment period to run is also contrary to the public interest as it would inhibit the Coast Guard's mission to keep the ports and waterways safe.

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

The Coast Guard is issuing this temporary rule under authority in 33 U.S.C. 1231. The COTP Long Island Sound has determined that the safety zones established by this temporary final rule are necessary to provide for the safety of life on navigable waterways before, during, and after these scheduled events.

This rule establishes seven safety zones for seven fireworks displays. The location of these safety zones are as follows:

This rule prevents vessels from entering, transiting, mooring, or anchoring within the areas specifically designated as a safety zone and restricts vessel movement around the locations of the marine events to reduce the safety risks associated with it during the period of enforcement unless authorized by the COTP or designated representative.

The Coast Guard will notify the public and local mariners of these safety zones through appropriate means, which may include, but are not limited to the Local Notice to Mariners and Broadcast Notice to Mariners.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on 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.

The Coast Guard determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The enforcement of these safety zones will be relatively short in duration; (2) persons or vessels desiring to enter these safety zones may do so with permission from the COTP Long Island Sound or a designated representative; (3) these safety zones are designed in a way to limit impacts on vessel traffic, permitting vessels to navigate in other portions of the waterway not designated as a safety zone; and (4) the Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as Local Notice to Mariners and Broadcast Notice to Mariners to increase public awareness of this safety zone.

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

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

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

This rule 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 Orders 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 temporary rule involves the establishment of seven temporary safety zones. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) for Categorically Excluded Actions will be 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:

EPA Region 1 is publishing this direct final Notice of Deletion of the Shpack Landfill Site, from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e) (3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Shpack Landfill Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121 (c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the state of Massachusetts prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co- published today in the “Proposed Rules” section of the Federal Register.

(2) EPA has provided the state 30 working days for an opportunity to review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the Massachusetts Department of Environmental Protection (MassDEP), has concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, The Sun Chronicle, Attleboro, MA. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Shpack Landfill Superfund Site, CERCLIS ID No. MAD980503973, is bordered to the north and northwest by Peckham Street (Attleboro) and Union Road (Norton); to the west and southwest by an approximately 55-acre municipal and industrial landfill owned by Attleboro Landfill Inc. (ALI); and on the southeast, east, and northeast by the Chartley Swamp. The Site covers approximately 9.4 acres and was operated as a landfill from 1946 until the early 1970s, receiving domestic and industrial waste, including low-level radioactive waste. In 1978, the Nuclear Regulatory Commission (NRC) conducted radiological surveys at the Site, detecting radium and uranium within the landfill after being contacted by a concerned citizen who had detected elevated radiation levels in the area. In 1980, the Site was added to the Department of Energy's (DOE) Formerly Utilized Sites Remedial Action Program (FUSRAP), which dealt with the legacy of the nation's early atomic energy programs. Responsibility was later transferred from DOE to the United States Army Corps of Engineers (USACE). Municipal water supplies did not extend to the area around the Site and there were 27 private wells located within 1-mile of the Site. In 1984, EPA evaluated the Site to determine if it should be listed on the National Priorities List (NPL) and found volatile organic compounds (VOCs) and metals in groundwater. The site was proposed to the NPL on October 15, 1984 (49 FR 40320). On June 14, 1986 (51 FR 21054), the Site was added to the NPL.

The RI/FS was completed in 2003. As part of the investigation, soil, surface water, groundwater, sediments and air were evaluated. Among the primary contaminants identified at the Site were radium and uranium; volatile organic contaminants (VOCs); heavy metals such as nickel, cadmium, copper, lead and mercury; dioxin, polychlorinated biphenyls (PCBs) and per/cyclic aromatic hydrocarbons (PAHs). The RI found that the primary risks at the Site were to residents exposed to contaminants by using the groundwater as drinking water; recreational visitors exposed to contaminated soil or sediment; workers on the Site; and to wildlife from contaminated sediments in the wetland. The FS evaluated alternatives with various degrees of excavation and off-site disposal of contaminants, consolidation of remaining contaminated soil and sediments under a multi-barrier cap and providing water line to nearby residents.

To address the risks presented by exposure to contaminants, EPA issued a Record of Decision (ROD) for the cleanup of the Site in September 2004. The ROD encompasses two response actions: One managed by the USACE under FUSRAP and the other managed by EPA under CERCLA.

The ROD identified the following remedial action objectives (RAOs):

Source Control: Soil—prevent ingestion, direct contact and inhalation with soil which contains contaminants in concentrations that exceed Federal and State standards; prevent ingestion, direct contact and inhalation with soil which have no enforceable Federal or State standards but which pose an unacceptable human health risk, and prevent exposure to contaminants in soil which present an unacceptable risk to the environment. Sediment—prevent exposure to contaminants in sediment which present an unacceptable risk to human health and/or environment. Surface water—reduce migration of contamination from site to surface water which present an unacceptable risk to human health and the environment.

Management of Migration: Prevent ingestion of water which contains contaminants in concentrations that exceed Maximum Contaminants Levels (MCLs), non-zero Maximum Contaminants Level Goals (MCLGs) and/or pose an unacceptable human health risk and/or unacceptable risk to the environment.

In response to the RAOs, the remedy included the following major components: Extension of the public water supply line; excavation and off-site disposal of soil and sediment with contaminant concentrations exceeding the cleanup levels specified in the ROD; placement of clean fill in excavated areas to grade and/or wetlands restoration/replication; relocation of existing power line structures, as needed, and traffic control plan to implement necessary soil removal and backfill actions; implementation of a surface water, sediment, and groundwater monitoring program; implementation of institutional controls necessary to restrict future use of property and groundwater, and monitoring compliance with institutional controls.

This remedy was based on the commitment by MassDEP to no longer consider this portion of the aquifer as a current or future water supply under the Massachusetts Contingency Plan once the remedial action is implemented, the two private drinking water supply wells abandoned, and Notices of Activity and Use Limitation (NAULs) were placed on the properties prohibiting the future use of groundwater. Since those conditions have been met, MassDEP revised its Groundwater Use and Value Determination to a low use and value, and EPA considers the groundwater not suitable as a drinking water source.

The FUSRAP Remedial Action was performed by USACE and required excavation and disposal of contaminated materials within the Landfill Interior portion of the Site. The action began in August 2005 and after excavation began, it was determined that the horizontal and vertical extent of radiological contamination was more extensive than estimated in the ROD. The FUSRAP activities originally initiated in 2005 resumed in June 2007 and were completed in October 2011. To manage groundwater, all pumped water was infiltrated on-site after treatment utilizing settling tanks, sand filtration vessels and bag filters.

A total of 57,805 cubic yards of material was excavated, of which 50,908 cubic yards were transported off-site for disposal. All wastes shipped off-site were ultimately transported by rail to the Energy Solutions disposal facility in Clive, Utah, a facility licensed for disposal of LLRW and/or mixed wastes. The USACE completed the Remedial Action Completion Report—Radiological Contamination in May 2012 documenting all completed FUSRAP-related remedial action activities at the site.

The CERCLA Remedial Action was performed by the Performing Defendants under a Remedial Design/Remedial Action Consent Decree entered on January 27, 2009 in the U.S. District Court in Boston for the remainder of the site cleanup. The public water supply line extension was complete in October 2012, extending The City of Attleboro public water supply line approximately 2,600 feet along Peckham Street, to within 500 feet of the Site, prior to on-site remedial construction activities. The on-site CERCLA Remedial Action began in June 2013. CERCLA wastes requiring excavation and disposal were located within the Tongue Area, Inner Rung, and ALI Debris Area (ALIDA) portions of the Site. Management of extracted groundwater utilized a treatment system for removal of entrained solids prior to on-site infiltration into site soils. Initial wetland and upland plantings and seeding were completed in November and December 2013. CERCLA remedial construction was completed in December 2013. A total of 27,083 tons of waste material was transported off-site for disposal. The material included the following waste classifications: Special Nuclear Material (SNM) non-hazardous; hazardous waste (leachable cadmium); non-hazardous waste; asbestos in soil (AIS); and non-hazardous asbestos-containing building materials. Overall, approximately 79 percent of the wastes removed from the Site were transported by rail to the US Ecology disposal facility in Grand View, Idaho. Most of the remaining wastes (approximately 20 percent of the total) were classified as non-hazardous and were transported by truck to the Waste Management Turnkey Landfill in Rochester, New Hampshire. The remaining wastes contained asbestos and were shipped to a construction debris landfill licensed to accept asbestos.

In accordance with the requirements of the Multi-Agency Radiation Survey and Site Investigation Manual, (MARSSIM), Revision 1 (August 2000), all excavated areas within the landfill interior required independent verification to ensure that site-specific cleanup criteria for radiological contaminants were met. The Final FSS Report, Shpack FUSRAP Superfund Landfill Site, Norton/Attleboro, Massachusetts (which included the Final Status Survey (FSS)) was issued in May 2012. The FSS included collection of confirmation samples from excavation floors and sidewalls prior to backfill of each excavation area. Excavations were backfilled only after FSS sampling and on-site lab analytical results confirmed that radiological contaminants were below cleanup criteria. Further information can be found in the FSS Report listed above.

The Inner Rung was a portion of Chartley Swamp that was slated for remedial activities due to ecological risk. To address potential risk to benthic organisms in the wetland ecosystem, the excavation removed the top 2 feet of material throughout the area. The restoration of the area included placement of a 1-foot thick layer of clean fill followed by placement of a 1-foot-thick layer of wetland topsoil to meet the pre-existing grades. Approximately 5,680 tons of waste material generated from the Inner Rung activities were removed and disposed of off Site. The Chemical-Only Soil Stockpile consisted of materials excavated by the USACE as part of the FUSRAP response actions. Based on information provided by the USACE, impacts to this material exceeded the ROD chemical cleanup criteria, but did not exceed ROD radiological criteria. The USACE secured the stockpile to protect it from the elements following its demobilization from the Site. Approximately 3,580 tons of waste material from the Chemical-Only Soil Stockpile were removed and disposed of off-Site. The ALI Debris Area (ALIDA) was a portion of the Shpack Landfill Interior that was the location of a reported slope failure from the ALI Landfill. The material in this area consisted of ALI municipal landfill debris underlain by industrial landfill debris associated with the Shpack Landfill. The USACE excavated 17 test pits in the ALI Landfill Debris Area during the FUSRAP activities in 2005. The USACE's test pit data indicated that that material exceeded several of the ROD cleanup goals for chemical compounds, but not the radioactive ones. Approximately 7,970 tons of waste material from the ALIDA were removed down to native peat material and disposed of off-Site. Waste and debris from a fire at an industrial plastics manufacturing facility were reportedly disposed of in the Tongue Area which extended from the Shpack Landfill Interior toward the Inner Rung. Approximately 9,680 tons of waste material were removed from the Tongue Area down to native peat material and disposed of off-Site. The Remedial Action required disturbance of approximately 203,500 square feet of wetlands to remove waste materials and to restore the wetlands impacted by the FUSRAP response actions. The final square footage of wetlands restored and created on-site during the RA is approximately 231,313 square feet.

Initial wetland and upland plantings and seeding under CERCLA Remedial Action were completed in November and December 2013. Routine monitoring and maintenance of the wetland area is scheduled to continue for seven years following completion of construction to ensure the success of the restored wetland. Inspections, maintenance, and any required plant replacement and re-seeding will occur during the first year. The Final Operation and Maintenance Plan includes monitoring criteria with specific wetland restoration and creation performance goals keyed to a designated scheduled. Operation and Maintenance of the Remedy will be conducted by the City of Attleboro in accordance with the approved O&M Plan for the Site. The Performing Defendants have agreed that the City of Attleboro will perform the O&M activities, including: Compliance monitoring; enforcing the ICs as necessary, and prepare and submit annual reports to EPA and MassDEP regarding the status of the ICs, as outlined in the Operations and Maintenance Plan, Revision #1, dated July 2015.

Prior to completion of the Remedial Action, an interim set of Institutional Controls (ICs) in the form of Easements, Restrictions, and Non-interference Agreements (ERNA) were placed on four properties. Following completion of the Remedial Action, a Notice of Activity and Use Limitation (NAUL) was recorded in November 2016 for each of the properties, except Union Road House 1 which was razed and the residential well decommissioned in 2012 thus no longer requiring NAUL. The NAUL prohibits activities and uses of the Site that may present an unacceptable risk to human health as well as providing Site access to the Performing Defendants for associated monitoring and O&M activities.

Hazardous substances remain at this Site above levels which would allow for unlimited use and unrestricted exposure requiring EPA to conduct statutory five-year reviews. The first statutory Five-Year Review Report will be completed prior to June 12, 2018, which is five years from the initiation of construction of the CERCLA remedy.

Throughout the Site's history, EPA has kept the community and other interested parties apprised of Site activities through informational meetings, fact sheets, press releases, and public meetings. Local residents formed the Citizen's Advisory Shpack Team (CAST) to monitor Site activities. On numerous occasions during 2000-2004, EPA and MADEP held informational meetings to update the community on the results of the RI/FS, including a November 20, 2003, meeting to discuss the results of the RI. On June 23, 2004, EPA held an informational meeting to present the Agency's Proposed Plan. From June 24, 2004 to August 25, 2004, the Agency held a public comment period to accept public comment on the alternatives presented in the FS and the Proposed Plan and the September 28, 2004 ROD includes the Responsiveness Summary to comments received during the public comment period.

The remedial actions which have been implemented for the FUSRAP and CERCLA achieve the clean-up objectives and cleanup goals identified in the 2004 ROD for the Site. The remaining site related contaminants are present at levels protective of both human health and the environment and meet EPA's acceptable risk for all exposure pathways. All of the selected remedial actions and the remedial action objectives and associated cleanup goals are consistent with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the National Contingency Plan (NCP) and EPA policy and guidance.

All Institutional Controls are in place and currently EPA expects that no further Superfund response is needed to protect human health and the environment, except future operations and maintenance, monitoring, and Five Year Reviews.

The EPA, with concurrence of the State of Massachusetts through the MassDEP, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 5, 2017 unless EPA receives adverse comments by August 7, 2017. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

A list of potentially affected entities is provided in the Federal Register of May 24, 2017 (82 FR 23735). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

In the May 24, 2017 Federal Register, EPA published both a direct final rule (see 82 FR 23735) and proposed rule (see 82 FR 23769) pursuant to section 601 of TSCA that would have extended the December 12, 2016 published (see 81 FR 89674) compliance dates for emission standards, recordkeeping, and labeling provisions, until March 22, 2018; extended the December 12, 2018 compliance date for import certification provisions until March 22, 2019; and extended the December 12, 2023 compliance date for provisions applicable to producers of laminated products until March 22, 2024. Additionally, this action would have extended the CARB TPC transitional period which is currently set to end December 12, 2018, until March 22, 2019.

Since the direct final rule and proposed rule's publication, EPA has received several comments on the proposed amendments to the compliance dates that the Agency considers to be adverse. As a result of receiving adverse comments, EPA is withdrawing the direct final rule published in the Federal Register on May 24, 2017. These comments are available for review in the public docket and suggest alternatives to the proposed action which EPA will address in a subsequent final rule.

To access the docket, please go to http://www.regulations.gov and follow the online instructions using the docket ID number EPA-HQ-OPPT-2017-0244. Additional information about the Docket Facility is also provided under ADDRESSES in the May 24, 2017 (82 FR 23735) Federal Register document. If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

EPA finds that there is “good cause” under the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to withdraw the direct final rule discussed in this document without prior notice and comment. For this document, notice and comment is impracticable and unnecessary because EPA is under a time limit to publish this withdrawal. It was determined that this document is not subject to the 30-day delay of effective date generally required by 5 U.S.C. 553(d). This withdrawal must become effective prior to the effective date of the direct final rule being withdrawn.

This document withdraws regulatory requirements that have not gone into effect. As such, the Agency has determined that this withdrawal will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the direct final rule being withdrawn were discussed in the May 24, 2017 (82 FR 23735) Federal Register document. Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

Pursuant to the CRA (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). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), this determination is supported by a brief statement in Unit IV.

The BLM is establishing a final supplementary rule under the authority of 43 CFR 8365.1-6, which allows State Directors to establish supplementary rules for the protection of persons, property, and the public lands and resources. This provision allows the BLM to issue rules of less than national effect without codifying the rules in the Code of Federal Regulations. This final supplementary rule applies to 37 acres of public lands managed by the Moab Field Office. Maps of the management area and boundaries can be obtained by contacting the Moab Field Office or by accessing the BLM's ePlanning project page (http://go.usa.gov/xkHY8). The final supplementary rule will be available for review at the Moab Field Office.

In 2015, the BLM published a temporary restriction on rope swinging at Corona Arch and Gemini Bridges. In 2016, the BLM sought a permanent restriction on rope swinging at the same two locations. Through the National Environmental Policy Act (NEPA) process, the BLM identified the need to establish a supplementary rule to provide for visitor enjoyment and protect public land resources at these two locations. Corona Arch and Gemini Bridges are two of the most popular recreational destinations in the Moab Field Office. Corona Arch is a partly freestanding arch with a 110-foot by 110-foot opening. Gemini Bridges are two large arches standing side-by-side.

Approximately 40,000 visitors per year come to the Corona Arch, and the Gemini Bridges receives approximately 50,000 visitors per year. The BLM has received many complaints that roped activities, including swinging from the arches, conflict with other visitors' use and enjoyment of the arches. The BLM finds merit in these complaints. People setting up and using swings and rappels from the arches endanger both themselves and those viewing from below. In addition, the rock arches may be damaged by ropes “sawing” on the rock spans. The supplementary rule currently in effect in the Moab Field Office (81 FR 9498, Feb. 25, 2016) does not address roped activities on the affected arches, although the temporary restriction (80 FR 27703, May 14, 2015) is in effect until May 2017.

The legal descriptions of the affected public lands are:

This final supplementary rule allows for enforcement as a tool to minimize the adverse effects of roped activities within the affected areas. After the final supplementary rule goes into effect, it will be available for review in the Moab Field Office, and will be announced broadly through the news media and direct mail to the constituents included on the Moab Field Office mailing list. The rule will also be posted on signs at main entry points to the affected areas.

The BLM published the proposed supplementary rule on October 31, 2016 (81 FR 75366). Thirty comment letters were received during the 90-day public comment period. Twenty-four of the commenters expressed support for the supplementary rule; six commenters opposed the supplementary rule. No changes to the final rule were made as a result of the comments received.

Support for the final supplementary rule banning roped activities near Corona Arch and Gemini Bridges focused upon allowing hikers to enjoy the arches unfettered by swinging activities. Commenters in favor of the rule noted the temporary restriction had allowed them to once again enjoy these hikes; they favored making the temporary restriction permanent. Commenters in favor also noted the vast majority of users of the arches (approximately 99.8%) visit the arches for their serenity and beauty.

The six commenters expressing opposition to the rule cited a need for less regulation of recreational activities. These commenters noted that hikers could go elsewhere. The BLM has not revised the rule in response to these comments. A permanent prohibition against roped activities is in conformance with the 2008 Moab Resource Management Plan (RMP). See https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=dispatchToPatternPage&currentPageId=94940.

The Corona Arch area is within the Goldbar Hiking Focus Area, which is specifically managed to enhance hiking opportunities. Decision REC-39 (page 90) states: “Manage the Corona Arch Trail for hiking only.” Gemini Bridges is within the Gemini Bridges/Poison Spider Mesa Focus area. Decision REC-39 states: “close the spur route to Gemini Bridges to facilitate public use and help restore damaged lands along the spur route.” The RMP further authorized the creation of a hiking route to Gemini Bridges to facilitate public use. In an effort to eliminate recreational use conflicts on these iconic and high use hiking trails, the BLM has chosen to finalize the supplementary rule.

This supplementary rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Order 12866. This supplementary rule would not have an annual effect of $100 million or more on the economy. It is not intended to affect commercial activity, but imposes a rule of conduct on recreational visitors for public safety and resource protection reasons in a limited area of public lands. This supplementary rule would not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This supplementary rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This supplementary rule does not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients, nor does it raise novel legal or policy issues; it merely strives to protect public safety and the environment.

A temporary restriction on roped activities was analyzed in Environmental Assessment (EA) DOI-BLM-UT-2014-0170-EA, Temporary Restriction of Roped Activities at Corona Arch and Gemini Bridges. This document was subject to a 30-day public comment period, and the Finding of No Significant Impact (FONSI) and Decision Record were signed on January 6, 2015. The permanent restriction on roped activities was analyzed in EA DOI-BLM-UT-2015-0227, Permanent Restriction of Corona Arch and Gemini Bridges to Roped Activities. This document was subject to a 30-day scoping period and a 30-day public comment period. The Decision Record providing for the permanent restriction was signed on May 5, 2016. Based on the EA which analyzed the permanent restriction, the BLM found that this supplementary rule would not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). This supplementary rule merely regulates conduct on the BLM public lands administered by the Moab Field Office within a 31-acre area around Corona Arch and 6.3-acre area around Gemini Bridges. This rule is designed to protect the environment and public safety. A detailed impact statement under NEPA is not required. The BLM has placed the EAs, the Decision Records, and the Findings of No Significant Impact on file in the BLM Administrative Record at the address specified in the ADDRESSES section.

This final supplementary rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Congress enacted the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The supplementary rule does not pertain specifically to commercial or governmental entities of any size, but to public recreational use of specific public lands.

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

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does 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

This supplementary rule does not impose an unfunded mandate on State, local, or tribal governments of more than $100 million per year; nor does it have a significant or unique effect on State, local, or tribal governments or the private sector. This supplementary rule does not require anything of State, local, or tribal governments. A statement containing the information required by the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq., is not required.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. This supplementary rule is not a government action capable of interfering with constitutionally protected property rights. This supplementary rule does not address property rights in any form, and does not cause the impairment of anybody's property rights. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This supplementary rule will not have a substantial direct effect on the states, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government. A federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.

This supplementary rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

The principal author of this supplementary rule is Christina Price, Field Manager for the Moab Field Office, Utah. For the reasons stated in the preamble, and under the authority for supplementary rules at 43 U.S.C. 1740 and 43 CFR 8365.1-6, the Utah State Director, BLM, establishes a supplementary rule for public lands managed by the BLM in Utah, to read as follows:

Roped activities means activities that involve the use of ropes, cables, climbing aids, webbing, or anchors, and includes, but is not limited to, zip-lining, high-lining, slack-lining, traditional rock climbing, sport rock climbing, rappelling, and swinging.

You must not participate in any roped activities on public lands in the vicinity of Corona Arch or Gemini Bridges. This prohibition includes, but is not limited to, the use of ropes, cables, climbing aids, webbing, anchors, and similar devices.

The following persons are exempt from this supplementary rule: Any Federal, State, or local government officer or employee in the scope of their duties; members of any organized law enforcement, rescue, or firefighting force in performance of an official duty; and any persons, agencies, municipalities or companies whose activities are authorized in writing by the BLM.

Any person who violates this supplementary rule may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Utah law.

This document announces that, on June 8, 2017, OMB approved, for a period of three years, the information collection requirements relating to the public safety pool eligibility rules contained in the Commission's Order, FCC 16-113, published at 81 FR 66538, September 28, 2016. The OMB Control Number is 3060-1231. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1231, in your correspondence. The Commission will also accept your comments via email at [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on June 8, 2017, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 90.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1231.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1231.

OMB Approval Date: June 8, 2017.

OMB Expiration Date: June 30, 2020.

Title: Section 90.20 (xiv), Public Safety Pool.

Form Number: N/A.

Respondents: Business or other for-profit entities, and state, local, or tribal government.

Number of Respondents and Responses: 1,526 respondents; 1,526 responses.

Estimated Time per Response: 1 hour.

Frequency of Response: One-time; on occasion reporting requirement and third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for these collections are contained in sections 1, 2, 4(i), 4(j), 301, 303, 316, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 303, 316, and 337.

Total Annual Burden: 1,526 hours.

Total Annual Cost: None.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act: No impact(s).

Needs and Uses: On August, 23, 2016, the Federal Communications Commission released a Report and Order, FCC 16-113, PS Docket No. 15-199 (see attached) that modified part 90 of the Rules Private Land Mobile Radio Services. The amended rule revises the part 90 eligibility rules to permit railroad police officers to access the interoperability. Specifically, the Commission modified § 90.20(a)(2)(xiv) to provide that:

1. Railroad police officers are a class of users eligible to operate on the nationwide interoperability and mutual aid channels listed in § 90.20(i) provided their employer holds a Private Land Mobile Radio (PLMR) license of any radio category, including Industrial/Business (I/B). Eligible users include full and part time railroad police officers, Amtrak employees who qualify as railroad police officers under this subsection, Alaska Railroad employees who qualify as railroad police officers under this subsection, freight railroad employees who qualify as railroad police officers under this subsection, and passenger transit lines police officers who qualify as railroad police officers under this subsection. Railroads and railroad police departments may obtain licenses for the nationwide interoperability and mutual aid channels on behalf of railroad police officers in their employ. Employers of railroad police officers must obtain concurrence from the relevant state interoperability coordinator or regional planning committee before applying for a license to the Federal Communications Commission or operating on the interoperability and mutual aid channels.

• Railroad police officer means a peace officer who is commissioned in his or her state of legal residence or state of primary employment and employed, full or part time, by a railroad to enforce state laws for the protection of railroad property, personnel, passengers, and/or cargo.

• Commissioned means that a state official has certified or otherwise designated a railroad employee as qualified under the licensing requirements of that state to act as a railroad police officer in that state.

• Property means rights-of-way, easements, appurtenant property, equipment, cargo, facilities, and buildings and other structures owned, leased, operated, maintained, or transported by a railroad.

• Railroad means each class of freight railroad (i.e., Class I, II, III); Amtrak, Alaska Railroad, commuter railroads and passenger transit lines.

• The word state, as used herein, encompasses states, territories and the District of Columbia.

2. Eligibility for licensing on the 700 MHz narrowband interoperability channels is restricted to entities that have as their sole or principal purpose the provision of public safety services.

To effectively implement the provisions of the new Rule, no other modifications to existing FCC rules are required. The changes are intended to simplify the licensing process for railroad police officers and ensure interoperable communications. The modified rules provide a benefit to public safety licensees by ensuring that only railroad police officers with appropriate governmental authorization can operate on the interoperability and mutual aid channels during emergencies. This will provide the additional benefit of promoting interoperability with railroad police officers by eliminating eligibility as a gating factor when licensing spectrum. The Report and Order reduces the burden on railroad police by allowing them to meet eligibility standard by requiring employers of railroad police officers to obtain concurrence from the relevant state interoperability coordinator or regional planning committee before applying for a license to the Federal Communications Commission or operating on the interoperability and mutual aid channels. Compliance with this requirement is already a requisite for public safety eligibility to use the interoperability and mutual aid channels, consequently any new burden imposed by this requirement would be minimal.

In November 2006, the Board held a hearing in Rail Transportation of Grain, Docket No. EP 665, as a forum for interested persons to provide views and information about grain transportation markets. The hearing was prompted by concerns regarding rates and service issues related to the movement of grain raised by Members of Congress, grain producers, and other stakeholders. In January 2008, the Board closed that proceeding, reasoning that guidelines for simplified rate procedures had recently been adopted 1 and that those procedures would provide grain shippers with a new avenue for rate relief. Rail Transp. of Grain, EP 665, slip op. at 5 (STB served Jan. 14, 2008). The Board noted, however, that it would continue to monitor the relationship between carriers and grain interests, and that, if future regulatory action were warranted, it would open a new proceeding. Id.

In Rate Regulation Reforms, EP 715 (STB served July 25, 2012), the Board proposed several changes to its rate reasonableness rules. However, based on the comments received in that docket from grain shipper interests, which in part stated that the proposed changes did not provide meaningful relief to grain shippers, the Board commenced a separate proceeding in Rail Transportation of Grain, Rate Regulation Review, Docket No. EP 665 (Sub-No. 1) in December 2013 to deal specifically with the concerns of grain shippers. The Board invited public comment on how to ensure that the Board's existing rate complaint procedures are accessible to grain shippers and provide effective protection against unreasonable freight rail transportation rates. The Board also sought input from interested parties on grain shippers' ability to effectively seek relief for unreasonable rates, including proposals for modifying existing procedures, or for new alternative rate relief methodologies, should they be necessary. The Board received comments and replies from numerous parties.

On May 8, 2015, the Board announced that it would hold a public hearing and invited parties to discuss rate reasonableness accessibility for grain shippers, as well as other issues, including: Whether the Board should allow multiple agricultural farmers and other agricultural shippers to aggregate their distinct rate claims against the same carrier into a single proceeding, and whether the disclosure requirement for agricultural tariff rates should be modified to allow for increased transparency. The public hearing was held on June 10, 2015, and the Board received post-hearing supplemental comments from interested parties through June 24, 2015.

Although much of the commentary and testimony received pertained to existing or proposed rate relief methodologies for agricultural commodity shippers, the comments and testimony also touched on various other issues related to grain. To address the commentary on rate relief methodologies, the Board issued an Advance Notice of Proposed Rulemaking, which proposed to develop a new rate reasonableness methodology for use in very small disputes, in a decision served on August 31, 2016, in Docket No. EP 665 (Sub-No. 1) and Expanding Access to Rate Relief, Docket No. EP 665 (Sub-No. 2). In response to comments on other grain-related matters, the Board issued a Notice of Proposed Rulemaking (NPRM), which proposed amendments to its regulations addressing publication of rates for agricultural products and fertilizer, and a policy statement, which addressed standing and aggregation of claims for rate complaint procedures, in a decision served on December 29, 2016 in Docket Nos. EP 528 (Sub-No. 1) and EP 665 (Sub-No. 1). The proposed rules were published in the Federal Register, 82 FR 805 (Jan. 4, 2017), and parties submitted comments in response to the NPRM.2 On January 24, 2017, the Board received a petition for reconsideration of its policy statement regarding aggregation of claims and standing from Larry R. Miller, Jr., for and on behalf of SMART/TD General Committee of Adjustment GO-386 (SMART-TD).

After consideration of the parties' comments, the Board is adopting final rules amending its regulations governing the publication of rate and service terms for agricultural products and fertilizer to require Class I railroads to publish such rates and service terms on their Web sites. This change modernizes the Board's regulations to reflect the fact that Class I railroads today are more likely to disseminate information to customers and the general public using company Web sites. For the reasons discussed below, the Board also denies SMART-TD's petition for reconsideration of the policy statement on standing and aggregation of claims for rate complaints.

In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803, Congress eliminated the tariff requirements that were formerly applicable to rail carriers and imposed instead certain obligations to disclose common carriage rates and service terms. One of these requirements, applicable only to the transportation of agricultural products, is that rail carriers must publish, make available, and retain for public inspection, their common carrier rates, schedules of rates, and other service terms, and any proposed and actual changes to such rates and service terms. 49 U.S.C. 11101(d). The statute states that the term “agricultural products” includes grain, as defined in 7 U.S.C. 75 and all products thereof, and fertilizer. Id.

The Board adopted regulations to implement the requirements of section 11101(d), in Disclosure, Publication, & Notice of Change of Rates & Other Service Terms for Rail Common Carriage (Disclosure), 1 S.T.B. 153 (1996). Those regulations are codified at 49 CFR 1300.5. Under those regulations, the information required to be published “must include an accurate description of the services offered to the public; must provide the specific applicable rates (or the basis for calculating the specific applicable rates), charges, and service terms; and must be arranged in a way that allows for the determination of the exact rate, charges, and service terms applicable to any given shipment (or to any given group of shipments).” 49 CFR 1300.5(b). Rail carriers must make the information available, without charge, during normal business hours, at offices where they normally keep rate information, 49 CFR 1300.5(c), and to all persons who have subscribed to a publication service operated either by the rail carrier itself or by an agent acting at the rail carrier's direction, 49 CFR 1300.5(d).3

In the NPRM, the Board proposed amendments to 49 CFR 1300.5 to update the publication requirements for the transportation of agricultural products and fertilizer. The Board proposed to revise these publication requirements, which were adopted in 1996, to reflect the fact that Class I railroads often use company Web sites or other applications to disseminate information to customers and the general public, as opposed to publication methods that likely were more prevalent at the time of promulgation (e.g., subscription services and maintenance of paper documents at railroad offices). As a result, the Board proposed to require Class I rail carriers to publish the information required under section 1300.5(a) on their Web sites.4 All rail carriers would also continue to be required to make agricultural rate and service information available at their public offices. See 49 CFR 1300.5(c).

In addition, the proposed amendments requiring Web site publication for Class I railroads would require that agricultural rate and service information be made available to “any person,” as currently required by section 1300.5, so that the rate information published online would be readily available to anyone, regardless of whether a person is a current or potential customer or receiver of a railroad. Finally, the proposed rules informed parties having difficulty accessing the agricultural rates and service terms to contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC).

Commenters generally support the proposed amendments to 49 CFR 1300.5,5 subject to certain requests for modifications and clarifications. Below the Board addresses parties' comments on (1) registration requirements and related issues, (2) the definition of “anyone” and “any person,” (3) machine-readable formats, and (4) Class II and III rail carriers' publication requirements. In response to parties' comments, the Board modifies the rules proposed in the NPRM. The text of the final rules is below.

Registration Requirements and Related Issues. Shippers seek clarification on the extent to which railroads may use registration features as a prerequisite to viewing agricultural rate and service information online. TFI asks the Board to find that it is not appropriate for railroads to impose “cumbersome and time-consuming registration requirements” to access public tariffs. (TFI Comment 4.) ARC states that railroads should not be allowed to impose burdensome registration requirements that ask for detailed information, such as a “showing of `need' or `relevance,' ” and that access to agricultural rate and service information should be “simple and expeditious.” (ARC Comment 9; ARC Reply 4 (comparing the proposed rules to the requirement in 49 CFR 1300.2(b) that information “must be provided immediately”).) ARC further comments that, if permitted to use registration requirements, railroads could discourage or deny certain persons from access to online tariffs. (ARC Comment 9; ARC Reply 4.)

Similarly, NGFA requests that the Board address “existing barriers and shortcomings that exist on some Class I railroads' Web sites that substantively impede access to tariff rate information and service terms.” (NGFA Comment 4.) NGFA states that it does not object to railroads using registration features, but that the final rules should require these registration features to provide for “immediate and unrestricted access to any person—not just current or potential customers—of all tariff rates, pricing information and all applicable service terms and conditions for agricultural commodities and fertilizer.” (Id. at 5-6.) NGFA also states that it supports the Board's proposal to direct parties having difficulty accessing this information to contact OPAGAC, but that if the final rules require railroads “to remove existing barriers and hurdles to accessing such information,” there should be fewer such requests. (Id. at 6.)

The Board understands shippers' concerns regarding the potential use of registration requirements to restrict online access to agricultural rate and service information. In the NPRM, the Board sought to update 49 CFR 1300.5 to make such information more readily accessible by adopting modern practices of disseminating information. But, as shippers note in their comments, the use of registration features could be used to deny or discourage certain persons from accessing agricultural rate and service information. (See, e.g., ARC Comment, V.S. Whiteside 12 (discussing railroads' existing registration requirements).) The Board finds that denial (or unreasonable delay) of access through such use of registration requirements would undermine the statutory authority for, and regulatory purpose of, 49 CFR 1300.5—which is to make agricultural rate and service information available for public inspection. See 49 U.S.C. 11101(d).

Accordingly, the Board will modify the final rules to include language allowing railroads to use registration requirements that are not unduly burdensome and that provide timely and unrestricted access to agricultural rate and service information to any person. See text of rules below (stating “Class I rail carriers may require persons accessing such information to register, but such registration requirements may not be overly burdensome, must provide timely access to the information, and cannot prevent specific types of persons from obtaining the information.”). Under this standard, the Board would not prohibit railroads from using registration features, but would require that registration requirements be structured in a manner that allows anyone who requests it to view the agricultural rate and service information.6 For example, registration features that require a showing of “need” or “relevance,” or proof that a person or entity is a customer or potential customer, as a prerequisite to accessing agricultural rate and service information would be prohibited. However, registration requirements that require a person to provide basic information, such as his or her name and email address, without requiring a certain type of email address, would be permissible.

The Board will also adopt as part of the final rules a provision suggesting that persons having difficulty accessing such information contact OPAGAC.7 The Board encourages parties to contact OPAGAC if they encounter registration requirements that are unduly burdensome or fail to provide timely access to agricultural rate and service information. The Board believes such an approach will help ensure that such information is made readily available to the public.

In addition, commenters seek clarification as to where and how agricultural rate and service information must be posted. ARC asks the Board to revise the final rules to indicate that online access must be made available at no charge and to clarify that online tariff information, once obtained, may be freely shared. (ARC Comment 6, 9; see also ARC Comment, V.S. Whiteside 15.) ARC further states that online access under section 1300.5(c) should mean that online notice of “scheduled changes in rates, charges and service terms” must be provided, as currently required by section 1300.5(a). (ARC Reply 2-3.)

Other commenters also ask the Board to prohibit railroads from placing “public tariffs in non-public areas of a railroad's Web site,” (TFI Comment 4), or require Class I railroads to clearly indicate on their Web site homepages whether and where interested persons can access public tariff, rate, and service information online, (NGFA Comment 5-6). Similarly, USDA states that it should be clear “where and how shippers and the public [can] access” agricultural rate information on a railroad's Web site. (USDA Comment 3.) TFI also asks the Board to clarify what constitutes making this “information available to any person online.” (TFI Comment 2.)

The Board confirms that online access to agricultural rate and service information must be available at no charge and that, once obtained, this information may be freely shared. Accordingly, the Board will modify the final rules to state that agricultural rate and service information must be made available online “without charge.” See text of rules below. Additionally, the Board confirms that online access under the revised section 1300.5(c) means that Class I carriers must provide online notice of “scheduled changes in rates, charges and service terms.” To be clear, the Board intends for the term “information” in revised section 1300.5(c) to refer to all of the information currently required in § 1300.5(a) and (b). Indeed, none of the changes proposed in the NPRM were intended to change the type of information that carriers must make available, only to require that it be provided online in addition to the current requirements. However, to further clarify this, the Board has added a reference to § 1300.5(a) and (b) in the revised version of § 1300.5(c).

Concerning where agricultural rate and service information is posted on railroads' Web sites, the final rules have been modified to require that this information be made “readily” available online. The Board believes this language sufficiently ensures that persons can access agricultural rate and service information in a reasonable manner, without the Board prescribing how and where railroads, each of which has a distinct Web site, must place such information. Accordingly, to maintain flexibility for implementation by Class I railroads, the Board declines to include in the final rules other specific requirements suggested by commenters.

Finally, with respect to what constitutes “mak[ing] th[is] information available to any person online,” railroads may post agricultural rate and service information on their Web sites in PDF or spreadsheet format, or in any other format that is readily accessible. As discussed in more detail below, the Board will not specify in the final rules a method or format for posting this information, as rail carriers may have different preferences depending on their Web sites.

Definitions of “Anyone” and “Any Person.” UP asks that the Board clarify whether the definition of “anyone,” as used in the text of the NPRM, includes brokers, trade associations, law firms, or other carriers. UP also asks whether the definition of “any person,” as used in section 1300.5, is limited to current or potential rail customers or rail receivers and, if not, whether the information that is required to be made public in section 1300.5 must be made available to anyone. (UP Comment 2.) On reply, ARC asks the Board to find that “any person,” as used in the regulations, should include all persons, regardless of whether they are customers or potential customers. (ARC Reply 3.)

The Board's use of the term “anyone” in the NPRM, includes, but is not limited to, brokers, trade associations, law firms, and other carriers. The definition of “any person” in § 1300.5 (which is not changed in these final rules) likewise is not limited to current or potential rail customers or rail receivers.8 Rather, the information subject to § 1300.5 must be made available to anyone—meaning that any person, company, association, governmental entity, or other entity must be able to access the tariff and rate information for agricultural commodities and fertilizer.

Machine-Readable Format. USDA states that the requirement under § 1300.5 to make agricultural rate and service information available for public inspection means that the records must (1) be available to the public and (2) provided in a useable form for examination and inspection. (USDA Comment 2.) According to USDA, some Class I carriers offer “pricing portals” on their Web sites, which provide “a handy way to search and find rates given the shipment's criteria, such as product, origin, and destination.” (Id. at 3.) However, other “railroads . . . provide [this] information, such as schedules of rates, in PDF-form, which is less accessible to shippers and the public, and is difficult to use.” (Id. at 2-3.) As a result, USDA recommends that the Board equire railroads to retain tariff rate records where appropriate in a machine-readable format. (Id.)

The Board commends railroads for providing “pricing portals” on their Web sites, which offer enhanced functionality that enables users to search and find rates based on various shipment criteria.9 At this time, however, the Board declines to require Class I railroads to provide information subject to § 1300.5 in a “machine-readable” or sortable/searchable format. The proposed and final rules seek to update the requirements of § 1300.5 to modern practices of posting information online. Without additional information on the various formats a machine-readable or sortable/searchable requirement could take, the burden associated with such a requirement is unclear. The Board therefore declines to adopt such a requirement in the final rules. However, the Board nonetheless encourages Class I railroads to provide, or to continue to provide, pricing portals.

Class II and III Rail Carriers' Publication Requirements. TFI, NGFA, and ARC ask the Board to require Class II and III rail carriers that already publish tariffs online to abide by the same online publication requirements as Class I railroads. (ARC Comment 8; NGFA Comment 6; TFI Comment 4; ARC Reply 3. See also ARC Comment, V.S. Whiteside 19.) ARC states that it is not aware of any hardships that such a requirement would impose on these Class II and III rail carriers, and TFI notes that the “shortline carriers with which TFI members regularly interact already meet such standards.” (TFI Comment 4; ARC Reply 3.)

Although the Board encourages Class II and III rail carriers to provide agricultural rate and service information online as they are able, the Board declines to make this a requirement at this time. Class II and III rail carriers are diverse and have fewer resources than Class I railroads. The record in Docket No. EP 528 (Sub-No. 1) does not establish whether such a requirement would be unduly burdensome. Moreover, such a requirement could present enforcement issues because it would be unevenly applicable, given that some Class II and III carriers publish tariffs online today while others do not.

In the December 2016 decision, the Board issued a policy statement, addressing standing and aggregation of claims, in response to questions and comments previously raised by stakeholders in Docket No. EP 665 (Sub-No. 1). The Board's policy statement provided:

• Under section 11701(b), grain producers (and other indirectly harmed complainants) that file rate complaints cannot be disqualified due to the absence of direct damage;

• Indirectly harmed complainants must nevertheless have standing to proceed with a complaint;

• Although not bound by the requirements of judicial standing, the Board may look to those requirements to guide (though not necessarily govern) its standing determinations;

• Grain producers should be able to establish standing before the Board on a case-by-case basis, given that the price producers receive from elevators for their grain is generally affected at least to some extent by the transportation rate the railroad charges to the grain elevators; and

• Parties may seek to aggregate their rate claims, and the Board will make such determinations on whether such claims are properly aggregated on a case-by-case basis, considering factors such as whether the claims or defenses involve common questions of law or fact, whether administrative efficiencies could be achieved through aggregation, and the number of claims being aggregated.

In response, parties comment that the Board should provide further clarification on certain issues related to standing and aggregation of claims in rate cases and, in its petition for reconsideration, SMART-TD asks the Board to reopen, reconsider, and vacate the policy statement. Below the Board addresses parties' comments and SMART-TD's petition for reconsideration.

Parties' Comments. ARC asks the Board to clarify the issue of representational or parens patriae standing. ARC also raises issues related to reparations 10 and the need for a reasonableness test that constrains excessive rates on captive shippers.11 UP seeks clarification regarding how the policy statement will affect rate relief in Three-Benchmark cases, which is capped at $4 million (indexed annually for inflation), for complainants that did not suffer direct damage. UP also seeks clarification on whether third-party discovery will be readily available in rate cases where the complainant does not have possession, custody, or control of information relevant to the proceeding. (UP Comment 2-4.) On reply, ARC argues that these issues should be decided on a case-by- case basis, as these questions are difficult to answer in the abstract and doing so would fail to serve the public interest. (ARC Reply 2, 4-7.)

Concerning ARC's comments related to reparations, the Board's policy statement did not address the issue of reparations, including which parties are eligible to receive them, and the Board declines to do so here. See NPRM at 6 n.7. (ARC Comment 13.) Moreover, ARC's request for a new rate reasonableness test is beyond the scope of the policy statement. Finally, ARC's and UP's other comments raise considerations that are more appropriately addressed on a case-by-case basis, rather than a policy statement.

Petition for Reconsideration. In its request to vacate the policy statement, SMART-TD argues that the Board materially erred in adopting a test for determining whether a party has standing to file a rate complaint.12 SMART-TD claims that the policy statement failed to “adequately set forth the various positions of the rail carriers on the standing issue” and argues that the Board's “legal reasoning for issuance of its standing policy statement is invalid.” (SMART-TD Pet. 6, 10.) ARC states similar concerns, noting that the Board's policy statement cites the three-part test for standing in federal court, which is more restrictive than the standing requirement applicable to proceedings before the Board. (ARC Comment 11-13.)

SMART-TD's petition for reconsideration and related comments raise concerns that involve case-specific considerations (some of which implicate proceedings other than the particular type of rate complaints that were the subject of the Board's policy statement). Accordingly, the Board will not further address these issues at this time, or reopen or vacate the policy statement in response to SMART-TD's petition.

Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, the Board will seek approval from the Office of Management and Budget (OMB) for this collection in a separate notice. Any comments received by the Board from that notice will be forwarded to OMB for its review and will be posted under Docket No. EP 528 (Sub-No. 1).

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. Under section 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).

In the NPRM, the Board certified under 5 U.S.C. 605(b) that the proposed rules would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.13 The Board explained that the proposed rule would not place any additional burden on small entities because the proposed rule of requiring rate information to be published online would be limited to Class I rail carriers. No parties submitted comments on this issue. A copy of the NPRM was served on the U.S. Small Business Administration (SBA).

The final rules adopted here revise the rules proposed in the NPRM. However, the same basis for the Board's certification of the proposed rules applies to the final rules adopted here. The final rules would not create a significant impact on a substantial number of small entities, as the regulations would only specify procedures related to Class I railroads and do not mandate or circumscribe the conduct of small entities. Therefore, the Board certifies under 5 U.S.C. 605(b) that the final rules will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

It is ordered:

1. The final rules set forth below are adopted and will be effective July 30, 2017.

2. SMART-TD's petition for reconsideration of the policy statement is denied.

3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

4. This decision is effective on July 30, 2017.

I dissent from the Board's decision not to require that the agricultural tariff data be provided in a machine-readable format.

The Board decided to initiate this rulemaking because of its concern that the existing regulations make the agricultural tariffs less accessible than they should be. Yet the Board undercuts the value of this update to the regulations by allowing railroads to continue to provide the information in a less accessible format. As the USDA points out, having this information in a machine-readable format is important. The information contained in the tariffs can be vast and making it machine-readable would allow users to search, sort, and filter the data based on their individual needs. The federal government itself has recognized the value of providing data in machine-readable formats.1 I disagree with the majority's decision not to make this a requirement here.

First, the majority states that “[t]he proposed . . . rules seek to update the requirements of § 1300.5 to modern practices of posting information online.” The majority's implication appears to be that requiring information in a machine-readable format would be outside the scope of the NPRM. Although the Board did not expressly propose requiring railroads to provide tariff information in a machine-readable format in the NPRM, that would not have prevented the Board from adopting this requirement as part of the final rules, as the requirement would have been a logical outgrowth of the NPRM. 2

The second reason given by the majority for not requiring that carriers provide information in machine-readable format is that the burden of such a requirement is “unclear.” With today's technology, it is hard to imagine that it would be burdensome for major U.S. corporations to put information in a machine-readable format.

For these reasons, I respectfully dissent from the majority on this issue.

For the reasons set forth in the preamble, the Surface Transportation Board amends its title 49, chapter X, subchapter D, of the Code of Federal Regulations as follows: