Federal Register Vol. 82, No.129,

Table of Contents I. Obtaining Information and Submitting Comments II. Rulemaking Procedure III. Background IV. Discussion of Changes V. Voluntary Consensus Standards VI. Agreement State Compatibility VII. Plain Writing VIII. Environmental Assessment and Finding of No Significant Environmental Impact IX. Paperwork Reduction Act Statement X. Regulatory Flexibility Certification XI. Regulatory Analysis XII. Backfitting XIII. Congressional Review Act XIV. Availability of Documents I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2016-0138 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0138.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2016-0138 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This direct final rule is limited to the renewal of the initial certificate and Amendment Nos. 1-6 of CoC No. 1007. The NRC is using the “direct final rule procedure” to issue these renewals because they represent a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured.

This direct final rule will become effective on September 20, 2017. However, if the NRC receives significant adverse comments on this direct final rule by August 7, 2017, the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rule section of this issue of the Federal Register. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or technical specifications (TSs).

For detailed instructions on filing comments, please see the companion proposed rule published in the Proposed Rule section of this issue of the Federal Register.

Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). A general license authorizes a reactor licensee to store spent fuel in NRC-approved casks at a site that is licensed to operate a power reactor under 10 CFR parts 50 or 52. This rule also established a new subpart L in 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on April 7, 1993 (58 FR 17967), that approved the VSC-24 Storage Cask System design, effective May 7, 1993, and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1007.

On October 12, 2012, EnergySolutions submitted an application to renew, for an additional 40 years, the initial certificate and Amendment Nos. 1-6 of CoC No. 1007 for the VSC-24 Storage Cask System (ADAMS Accession No. ML12290A139). EnergySolutions supplemented its request on: February 14, 2013 (ADAMS Accession No. ML130500219); April 4, 2014 (ADAMS Accession No. ML14099A192); October 24, 2014 (ADAMS Accession No. ML14301A283); and June 26, 2015 (ADAMS Accession No. ML15182A163). Because EnergySolutions filed its renewal application at least 30 days before the certificate expiration date of May 7, 2013, pursuant to the timely renewal provisions in 10 CFR 72.240(b), the initial issuance of the certificate and Amendment Nos. 1-6 of CoC No. 1007 did not expire.

The renewals of the initial certificate and its amendments were conducted in accordance with the renewal provisions in 10 CFR 72.240. This section of NRC spent fuel storage regulations authorizes the NRC staff to include any additional certificate conditions it deems necessary to ensure that the cask system's SSCs continue to perform their intended safety functions during the certificate's renewal period. The NRC staff has included additional conditions in the renewed certificates requiring the implementation of an approved AMP to ensure that VSC-24 Storage Cask System SSCs important to safety will continue to perform their intended functions during the extended storage period authorized by the renewal. These conditions will require users of the VSC-24 Storage Cask Systems to establish, implement, and maintain written procedures for each AMP element, including the lead cask inspection program, for VSC-24 Storage Cask Systems that will continue to be in use for more than 20 years. These procedures must be consistent with the AMP descriptions in the applicant's Final Safety Analysis Report (FSAR).

The procedures must also include provisions for changing AMP elements as necessary, within the limitations specified in CoC conditions and TSs, to address new information derived from the results of AMP inspections and/or industry operating experience of aging effects. Each VSC-24 Storage Cask System general licensee must make and maintain records of periodic “tollgate” assessments as part of the “Operating Experience” element of each AMP. The purpose of these periodic tollgate assessments is to determine whether any AMP addressing an aging effect or mechanism requires revision to encompass the current state of knowledge. In addition, each future request for an amendment to the renewed CoCs must evaluate the amendment's impacts on aging management activities for the VSC-24 Storage Cask System. This evaluation may require modifications to time-limited aging analyses (TLAAs) and AMPs, including the lead cask inspection program, as appropriate.

The renewed certificates also contain additional conditions requested by EnergySolutions. The renewed initial certificate and Amendment Nos. 1-3 of CoC No. 1007 will prohibit the construction or placement into service of new VSC-24 SSCs under these CoC specifications. General licensee users with VSC-24 Storage Cask Systems under the initial certificate or Amendment Nos. 1-3 that are in service as of the renewal's effective date, however, may continue to perform SSC maintenance and repairs in accordance with the conditions of their applicable renewed CoC. General licensees that meet the conditions of the renewed Amendment Nos. 4-6 of CoC No. 1007 may load and store spent nuclear fuel in new VSC-24 Storage Cask Systems.

This direct final rule also includes additional design and operating conditions on the initial and all amendment certificates and their corresponding TSs to preclude the use of specific cask components, and prohibit the storage of spent fuel above a certain burnup. These conditions were proposed by the certificate holder to ensure that the scope of the aging analyses provided in the renewal application extends only to VSC-24 Storage Cask System SSCs currently in service. The NRC staff confirmed that no VSC-24 Storage Cask Systems currently in service are affected by these design and operating conditions. These conditions would only apply to future VSC-24 Storage Cask System SSCs placed into service.

As documented in its safety evaluation report (SER), the NRC staff performed a detailed safety evaluation of the proposed CoC renewal request. There are no changes to the cask design or fabrication requirements in the proposed CoC renewals. Accordingly, the design of the cask would continue to prevent loss of containment, shielding, and criticality control. In its SER for the renewal of the VSC-24 Storage Cask System, the NRC has determined that if the conditions specified in the CoC to implement these regulations are met, adequate protection of public health and safety will be maintained.

This direct final rule revises the VSC-24 Storage Cask System listing in 10 CFR 72.214 by renewing for 40 more years the initial certificate and Amendment Nos. 1-6 of CoC No. 1007. The renewals consist of the changes previously described, as set forth in the renewed CoCs and their revised TSs. The revised TSs are identified in the SER.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the VSC-24 Storage Cask System design listed in § 72.214, “List of Approved Spent Fuel Storage Casks.”

This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this direct final rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements using a mechanism consistent with the particular State's administrative procedure laws, but so informing these licensees does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The action is to amend 10 CFR 72.214 by revising the VSC-24 Storage Cask System listing within the “List of Approved Spent Fuel Storage Casks” to renew, for an additional 40 years, the initial certificate and Amendment Nos. 1-6 of CoC No. 1007. The renewals of the initial certificate and Amendment Nos. 1-6 require each cask user to establish, implement, and maintain written procedures for AMP elements, including lead cask inspection programs, for VSC-24 Storage Cask System SSCs important to safety. Users must also conduct periodic “tollgate” assessments of new information on SSC aging effects and mechanisms to determine whether any element of an AMP addressing these effects and mechanisms requires revision to encompass the current state of knowledge. In addition, the renewal of the initial certificate and Amendment Nos. 1-6 makes several other changes, described in Section IV, “Discussion of Changes,” in the SUPPLEMENTARY INFORMATION section of this document. Finally, as with any NRC-approved cask system, the reactor licensee using these systems under a 10 CFR part 72 general license must also ensure that the reactor site parameters and potential site-boundary doses are within the scope of the cask system safety analysis report and reactor license.

Under the National Environmental Policy Act of 1969, as amended (NEPA), and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement (EIS) is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment (EA).

This direct final rule is necessary to authorize the continued use of the VSC-24 Storage Cask System design by power reactor licensees for dry spent fuel storage at reactor sites. Specifically, this rule extends the expiration date for the VSC-24 Storage Cask System certificates for an additional 40 years, allowing a reactor licensee to continue using them under general license provisions in an independent spent fuel storage installation (ISFSI), the facility at which a holder of a power reactor operating license stores spent fuel in dry casks in accordance with 10 CFR part 72.

The environmental impacts associated with spent fuel storage have been considered in a variety of NRC environmental reviews. The NUREG-1092, “Environmental Assessment for 10 CFR Part 72—Licensing Requirements for the Independent Storage of Spent Fuel and High-Level Radioactive Waste,” is dated August 1984 (ADAMS Accession No. ML091050510). In the May 27, 1986, proposed rule (51 FR 19106) amending 10 CFR part 72 to address an NWPA requirement, the SUPPLEMENTARY INFORMATION section contains additional analyses showing that the potential environmental impacts from storing spent fuel in dry casks are small. The NRC also evaluated the environmental impacts of spent fuel storage at generally licensed ISFSIs in “Environmental Assessment and Finding of No Significant Impact for Proposed Rule Entitled `Storage of Spent Nuclear Fuel in NRC-Approved Storage Casks at Nuclear Power Reactor Sites,'” published in the Federal Register on May 5, 1989 (54 FR 19379).

On July 18, 1990 (55 FR 29181), the NRC issued a final rule amending 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. In the EA for the 1990 final rule, the NRC analyzed the potential environmental impacts of using NRC-approved storage casks. This EA for the renewal of the initial certificate and Amendment Nos. 1-6 of CoC No. 1007 tiers off of the EA for the July 18, 1990, final rule. Tiering off of past EAs is a standard process under NEPA.

The NRC staff has determined that the environmental impacts of renewing the VSC-24 Storage Cask System certificates for an additional 40 years remain bounded by the EISs and EAs previously referenced. As required by 10 CFR 72.240, applications for renewal of a spent fuel storage CoC design are required to demonstrate, in TLAAs and a description of an AMP, that SSCs important to safety will continue to perform their intended function for the requested renewal term. As discussed in the NRC staff's SER for the renewal of the VSC-24 Storage Cask System certificates, the NRC staff has approved conditions in the renewed CoCs requiring the general licensee to implement the AMPs described in the renewal application and incorporated into the storage system's FSAR. These conditions ensure that VSC-24 Storage Cask Systems will continue to perform their intended safety functions and provide adequate protection of public health and safety throughout the renewal period.

Incremental impacts from continued use of VSC-24 Storage Cask Systems under a general license for an additional 40 years are not considered significant. When the general licensee follows all procedures and administrative controls, including the conditions established as a result of this renewal, no effluents are expected from the sealed dry storage cask systems. Activities associated with cask loading and decontamination may result in some small incremental liquid and gaseous effluents, but these activities will be conducted under 10 CFR parts 50 or 52 reactor operating licenses, and effluents will be controlled within existing reactor site technical specifications. Because reactor sites are relatively large, any incremental offsite doses due to direct radiation exposure from the spent fuel storage casks are expected to be small, and when combined with the contribution from reactor operations, well within the annual dose equivalent of 0.25 mSv (25 mrem) limit to the whole body specified in 10 CFR 72.104. Incremental impacts on collective occupational exposures due to dry cask spent fuel storage are expected to be only a small fraction of the exposures from operation of the nuclear power station.

The VSC-24 Storage Cask Systems are also designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an ISFSI include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

During the promulgation of the amendments that added subpart K to 10 CFR part 72 (55 FR 29181; July 18, 1990), the NRC staff assessed the public health consequences of dry cask system storage accidents and sabotage events. In the supporting analyses for these amendments, the NRC staff determined that a release from a dry cask storage system would be comparable in magnitude to a release from the same quantity of fuel in a spent fuel storage pool. As a result of these evaluations, the NRC staff determined that, because of the physical characteristics of the storage casks and conditions of storage that include specific security provisions, the potential risk to public health and safety due to accidents or sabotage is very small.

Considering the specific design requirements for each accident or sabotage condition, the design of the cask would prevent loss of confinement, shielding, and criticality control. If there is no loss of confinement, shielding, or criticality control, the environmental impacts would be insignificant.

There are no changes to cask design or fabrication requirements in the renewed initial certificate or the renewed Amendment Nos. 1-6 that would result in an increase in occupational exposure or offsite dose rates from the implementation of the renewal of the initial certificate and Amendment Nos. 1-6. Therefore, the occupational exposure or offsite dose rates would remain well within applicable 10 CFR part 20 limits.

Decommissioning of dry cask spent fuel storage systems under a general license would be carried out as part of a power reactor's site decommissioning plan. In general, decommissioning would consist of removing the spent fuel from the site, decontaminating cask surfaces, and decontaminating and dismantling the ISFSI where the casks were deployed. The casks would then be released for reuse or disposal. Under normal and off-normal operating conditions, no residual contamination is expected to be left behind on supporting structures. The incremental impacts associated with decommissioning dry cask storage installations is expected to represent a small fraction of the impacts of decommissioning an entire nuclear power station.

In summary, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that differ significantly from the environmental impacts evaluated in the EA supporting the July 18, 1990, final rule. Compliance with the requirements of 10 CFR parts 20 and 72 would ensure that adequate protection of public health and safety will continue. The NRC, in its SER for the renewal of the VSC-24 Storage Cask System, has determined that if the conditions specified in the CoC to implement these regulations are met, adequate protection of public health and safety will be maintained.

Based on the previously stated assessments and its SER for the requested renewal of the VSC-24 Storage Cask System certificates, the NRC has determined that the expiration date of this system in 10 CFR 72.214 can be safely extended for an additional 40 years, and that commercial nuclear power reactor licensees can continue using the system during this period under a general license without significant impacts on the human environment.

The alternative to this action is to deny approval of the renewals and end this direct final rule. Under this alternative, the NRC would either: (1) Require general licensees using VSC-24 Storage Cask Systems to unload the spent fuel from these systems and either return it to a spent fuel pool or re-load it into a different dry storage cask system listed in 10 CFR 72.214; or (2) require that users of existing VSC-24 Storage Cask Systems request site-specific licensing proceedings to continue storage in these systems.

The environmental impacts of requiring the licensee to unload the spent fuel and either return it to the spent fuel pool or re-load it into another NRC-approved cask system would result in increased radiological doses to workers. These increased doses would be due primarily to direct radiation from the casks while the workers unloaded, transferred, and re-loaded the spent fuel. These activities would consist of transferring the dry storage canisters to a cask handling building, opening the canister lid welds, returning the canister to a spent fuel pool or dry transfer facility, removing the fuel assemblies, and re-loading them, either into a spent fuel pool storage rack or another NRC-approved dry storage system. In addition to the increased occupational doses to workers, these activities may also result in additional liquid or gaseous effluents.

Alternatively, users of the dry cask storage system would need to apply for a site-specific license. Under this option for implementing the no-action alternative, interested licensees would have to prepare, and the NRC would have to review, each separate license application, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

In summary, the no-action alternative would entail either more environmental impacts from transferring the spent fuel now in VSC-24 Storage Cask Systems, or impacts from multiple licensing actions that, in the aggregate, are likely to be less than spent fuel transfer activities but the same as, or more likely, greater than the preferred action.

Renewal of the initial certificate and Amendment Nos. 1-6 of CoC No. 1007 for the VSC-24 Storage Cask System would not result in irreversible commitments of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this EA.

The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing EA, the NRC concludes that this rule entitled, “List of Approved Spent Fuel Storage Casks: EnergySolutions Corporation, VSC-24 Ventilated Storage Cask System, Renewal of Initial Certificate and Amendment Nos. 1-6,” will not have a significant impact on the human environment. Therefore, the NRC has determined that an EIS is not necessary for this direct final rule.

This direct final rule does not require any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and the EnergySolutions Corporation. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Under this regulation, any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if the licensee notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On April 7, 1993 (58 FR 17967), the NRC issued an amendment to 10 CFR part 72 that approved the VSC-24 Storage Cask System design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214.

On October 12, 2012, EnergySolutions requested a renewal of the initial certificate and Amendment Nos. 1-6 of VSC-24's CoC No. 1007 for an additional 40 years beyond the initial certificate term (ADAMS Accession No. ML12290A139). EnergySolutions supplemented its request on: February 14, 2013 (ADAMS Accession No. ML130500219), April 4, 2014 (ADAMS Accession No. ML14099A192), October 24, 2014 (ADAMS Accession No. ML14301A283), and June 26, 2015 (ADAMS Accession No. ML15182A163). Because EnergySolutions filed its renewal application at least 30 days before the certificate expiration date of May 7, 2013, pursuant to the timely renewal provisions in 10 CFR 72.240(b), the initial issuance of the certificate and Amendment Nos. 1-6 of CoC No. 1007 did not expire.

The alternative to this action is to deny approval of the renewal of the initial certificate and Amendment Nos. 1-6 of CoC No. 1007 and end this direct final rule. Under this alternative, the NRC would either: (1) Require general licensees using VSC-24 Storage Cask Systems to unload spent fuel from these systems and return it to a spent fuel pool or re-load it into a different dry storage cask system listed in 10 CFR 72.214; or (2) require that users of existing VSC-24 Storage Cask Systems request site-specific licensing proceedings to continue storage in these systems. Therefore, the no-action alternative would entail either more environmental impacts from transferring the spent fuel now in VSC-24 Storage Cask Systems, or impacts from multiple licensing actions that, in the aggregate, are likely to be less than spent fuel transfer activities but the same as, or more likely, greater than the preferred action.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the SER and the EA, this direct final rule will have no significant adverse impact on public health and safety or the environment. This direct final rule also has no significant identifiable impact on or benefit to other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.

The NRC has determined that the actions in this direct final rule do not require a backfit analysis because they either do not fall within the definition of backfitting under 10 CFR 72.62 or 10 CFR 50.109(a)(1), or they do not impact any general licensees currently using these systems. Additionally, the actions in this direct final rule do not impact issue finality provisions applicable to combined licenses under part 52.

This direct final rule renews CoC No. 1007 for the VSC-24 Storage Cask System, as currently listed in 10 CFR 72.214, “List of Approved Spent Fuel Storage Casks,” to extend the expiration date of the initial certificate and Amendment Nos. 1-6 by 40 years. The renewed certificates would require implementation of an AMP for the 40 years after the storage cask system's initial 20-year service period. As part of the renewal application, EnergySolutions also requested some changes to the originally-certified systems that go beyond the aging management provisions and impose additional design and operating conditions on the certificates and their corresponding TSs to preclude the use of specified cask components, and prohibit the future storage of spent fuel above a certain burnup limit.

Renewing these certificates does not, with the exceptions noted in this section, fall within the definition of backfit under 10 CFR 72.62 or 10 CFR 50.109, or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Extending the certificates' effective dates for 40 more years and requiring the implementation of AMPs does not impose any modification or addition to the design of an SSC of a cask system, or to the procedures or organization required to operate the system during the initial 20-year storage period of the system, as authorized by the current certificate. General licensees that have loaded these casks, or that load these casks in the future under the specifications of the applicable certificate, may continue to store spent fuel in these systems for the initial 20-year storage period authorized by the original certificate. The AMPs required to be implemented by this renewal are only required to be implemented after the storage cask system's initial 20-year service period ends. As explained in the 2011 final rule that amended 10 CFR part 72 (76 FR 8872, 8875, Question I), the general licensee's authority to use a particular storage cask design under an approved CoC terminates 20 years after the date that the general licensee first loads the particular cask with spent fuel, unless the cask's CoC is renewed. Because this rulemaking renews the certificates, and renewal is a separate NRC licensing action voluntarily implemented by vendors, the renewal of these CoCs is not an imposition of new or changed requirements from which these licensees would otherwise be protected by the backfitting provisions in 10 CFR 72.62 or 10 CFR 50.109.

Even if renewal of this CoC system could be considered a backfit, EnergySolutions, as the holder of the CoC and vendor of the casks, is not protected by the backfitting provisions in 10 CFR 72.62.

Unlike a vendor, general licensees using the existing systems subject to these renewals would be protected by the backfitting provisions in 10 CFR 72.62 and 10 CFR 50.109 if the renewals constituted new or changed requirements. But as previously explained, renewal of the certificates for these systems does not impose such requirements. The general licensees using these CoCs may continue storing material in their respective cask systems for the initial 20-year storage period identified in the applicable certificate or amendment with no changes. If general licensees choose to continue to store spent fuel in VSC-24 Cask Systems after the initial 20-year period, these general licensees will be required to implement AMPs for any cask systems subject to a renewed CoC, but such continued use is voluntary.

As part of the renewal application, EnergySolutions requested some changes to the originally-certified systems that go beyond the aging management provisions required by NRC regulations. Some of these changes impose additional design and operating conditions on the certificates and their corresponding TSs to preclude the use of specified cask components, and prohibit the future storage of spent fuel above a certain burnup limit. While the imposition of such conditions would be considered a backfit if the general licensees using VSC-24 Storage Cask Systems were using the prohibited components or storing spent fuel with the prohibited burnup, none of these licensees are doing so. These prohibitions were proposed by the certificate holder to avoid having to analyze aging effects that do not and will not apply to any VSC-24 Storage Cask Systems currently in service. The NRC staff confirmed that these proposed design and operating conditions do not affect any VSC-24 Storage Cask Systems currently in service (which are located at the Arkansas Nuclear One, the Point Beach, and the Palisades Nuclear Plant sites). Therefore, these additional conditions and TS changes do not constitute backfitting within the provisions of 10 CFR 72.62 or 10 CFR 50.109.

EnergySolutions also requested a condition that will prohibit the construction or placement into service of new VSC-24 SSCs under the renewed initial CoC No. 1007 certificate and Amendment Nos. 1-3, but this condition will not affect the users of existing casks. General licensees using VSC-24 Storage Cask Systems in service under the initial certificate or Amendment Nos. 1-3 as of the renewal's effective date may continue storing fuel and performing SSC maintenance and repairs in accordance with the conditions of their applicable CoC. Therefore, the requested condition affects only EnergySolutions, since it would be prohibited from manufacturing new systems under the initial certificate or Amendment Nos. 1-3 in the future. As previously mentioned, EnergySolutions, as the holder of the CoC, is not protected from backfitting by 10 CFR 72.62, and in any case, EnergySolutions itself requested the NRC to impose the condition. The vendor did not submit its request in response to new NRC requirements, nor any NRC request for an application to amend this CoC.

For these reasons, renewing the initial certificate and Amendment Nos. 1-6 of CoC No. 1007, and imposing the additional conditions previously discussed, do not constitute backfitting under 10 CFR 72.62 or 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in part 52. Accordingly, the NRC staff has not prepared a backfit analysis for this rulemaking.

The OMB has not found this to be a major rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2016-0138. The Federal Rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2016-0138); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.

On April 10, 2017, the FAA published a final rule entitled, “2017 Revisions to the Civil Penalty Inflation Adjustment Tables” (82 FR 17097). In that final rule the FAA amended its regulations to provide the 2017 inflation adjustment to civil penalty maximums and minimums provided in title 14 Code of Federal Regulations (14 CFR) 13.301 and 406.9, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

In the regulatory text, the FAA inadvertently stated the effective date for the new maximums/minimums was January 15, 2017. However, the FAA intended only to apply the newly inflated maximums/minimums for violations occurring on or after April 10, 2017. Therefore, the FAA amends § 13.301(c) to reflect the intended date of April 10, 2017.

In consideration of the foregoing, the Federal Aviation Administration amends Chapters I of title 14, Code of Federal Regulations by making the following correction:

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

On March 28, 2017, the FAA published in the Federal Register (82 FR 15306) Docket FAA-2015-6751 a notice of proposed rulemaking (NPRM) to amend Class E airspace at Arcata Airport, Arcata, CA; and Rohnerville Airport, Fortuna, CA, and establish Class E airspace at Arcata Airport, Arcata, CA; and Murray Field Airport, Eureka, CA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6002, 6004, and 6005, respectively, of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E surface area airspace at Arcata Airport, Arcata, CA, and Rohnerville Airport, Fortuna, CA, and establishing Class E airspace designated as an extension at Arcata Airport. Also, stand-alone Class E airspace extending upward from 700 feet above the surface is established at Murray Field Airport, Eureka, CA. This airspace redesign is necessary for the safety and management of IFR operations at these airports, and for efficiency within the National Airspace System.

Class E surface area airspace is amended at Arcata Airport, Arcata, CA, to within a 4.1 mile radius (increased from a 4-mile radius) of the airport; and the Abeta NDB is removed from the description as it was decommissioned and no longer needed.

Class E airspace designated as an extension to a Class D or Class E surface area is established within 2.9 miles each side of the 153° bearing from Arcata Airport extending from the 4.1-mile radius to 10.5 miles southeast of the airport.

Class E airspace extending upward from 700 feet above the surface is reduced to within a 7-mile radius of Arcata Airport, with a segment 4.2 miles wide (2.1 miles each side of the 153° bearing) extending from the 7-mile radius of the airport to 14.1 miles southeast of the airport. Class E airspace extending upward from 1,200 feet above the surface at Arcata Airport is removed, since this airspace is wholly contained within the Rogue Valley Class E en route airspace area.

Class E airspace extending upward from 700 feet above the surface at Murray Field Airport, Eureka, CA, is established within a 6.3-mile radius of Murray Field Airport, with a segment 6.3 miles wide extending to 23 miles southwest of the airport. This airspace area specifically supports IFR operations at Eureka, CA.

Class E airspace extending upward from 700 feet above the surface at Rohnerville Airport, Fortuna, CA, is amended to within a 2.7-mile radius (from a 6.5-mile radius) of Rohnerville Airport, with segments extending 7 miles northwest, 5.2 miles west, and 6.1 miles southeast of the airport. Class E airspace upward from 1,200 feet above the surface at Rohnerville Airport is removed since this airspace is wholly contained within the Rogue Valley Class E en route airspace area.

This action also updates the geographic coordinates for the amended airports in the associated airspace areas to be in concert with the FAA's aeronautical database.

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

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

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

The Missile Technology Control Regime (MTCR or Regime) is an export control arrangement among 35 nations, including most of the world's suppliers of advanced missiles and missile-related equipment, materials, software and technology. The regime establishes a common list of controlled items (the Annex) and a common export control policy (the Guidelines) that member countries implement in accordance with their national export controls. The MTCR seeks to limit the risk of proliferation of weapons of mass destruction by controlling exports of goods and technologies that could make a contribution to delivery systems (other than manned aircraft) for such weapons.

In 1993, the MTCR's original focus on missiles for nuclear weapons delivery was expanded to include the proliferation of missiles for the delivery of all types of weapons of mass destruction (WMD), i.e., nuclear, chemical and biological weapons. Such proliferation has been identified as a threat to international peace and security. One way to address this threat is to maintain vigilance over the transfer of missile equipment, material, and related technologies usable for systems capable of delivering WMD. MTCR members voluntarily pledge to adopt the Regime's export Guidelines and to restrict the export of items contained in the Regime's Annex. The Regime's Guidelines are implemented through the national export control laws, regulations and policies of the regime members.

This final rule revises the Export Administration Regulations (EAR) to reflect changes to the MTCR Annex agreed to at the October 2016 Plenary in Busan, South Korea, and changes resulting from the March 2016 Technical Experts Meeting (TEM) in Luxembourg City, Luxembourg. References are provided below for the MTCR Annex changes agreed to at the meetings that correspond to the EAR revisions described below. This rule also makes changes to the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) and to other EAR provisions in order to conform with the MTCR Annex. All of the changes in this final rule align the MT controls on the CCL and other parts of the EAR with the MTCR Annex. In the discussion below, BIS identifies the origin of each change in the regulatory text of this final rule by using one the following parenthetical phrases: (Busan 2016 Plenary), (Luxembourg 2016 TEM), or (Conforming Change to MTCR Annex).

§ 742.5 (Missile technology). In § 742.5 (Missile technology), this final rule revises the first sentence of paragraph (a)(2), which describes the definition of “missiles.” The term “missiles” is a defined term in § 772.1, but for ease of reference the first sentence of this paragraph (a)(2) restates the definition. As described in the paragraphs below, this final rule revises the definitions of “missiles” and “unmanned aerial vehicles” in § 772.1 of the EAR, so conforming changes are needed in §§ 742.5 and 744.3, as described below.

Conforming Change to § 742.5(a)(2). This final rule makes conforming changes in paragraph (a)(2) of § 742.5, by replacing the term “ballistic missile systems” with the term “ballistic missiles” (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM), and by replacing the term “cruise missile systems” with the term “cruise missiles.” (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). This final rule also makes a conforming change by replacing the term “unmanned air vehicles” with the term “unmanned aerial vehicles.” (Conforming Change to MTCR Annex). Substantively, there is no difference between the old and revised terms, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR. These conforming changes are described in more detail in the next three paragraphs, describing the changes that this final rule makes to the EAR definitions of “missiles” and “unmanned aerial vehicles.”

Conforming Change to § 744.3 (Restrictions on certain rocket systems (including ballistic missile systems and space launch vehicles and sounding rockets) and unmanned air vehicles (including cruise missile systems, target drones and reconnaissance drones) end-uses). This final rule makes conforming changes in § 744.3 by changing the term “ballistic missile systems” to “ballistic missiles” (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM), and changing the term “cruise missile systems” to “cruise missiles.” (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). These conforming changes are described in more detail in the next two paragraphs describing the changes that this final rule makes to the EAR definitions of “missiles” and “unmanned aerial vehicles.” In addition, this final rule makes conforming changes in § 744.3 by replacing the term “unmanned air vehicles” with “unmanned aerial vehicles” wherever this term appears in this section. (Conforming Change to MTCR Annex). Substantively, there is no difference between the old and revised terms, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR. Lastly, this final rule removes the first reference to “and” in the section heading for the parenthetical phrase providing an illustrative list of examples of rocket systems. This “and” is removed because it is not needed to convey the meaning of the list of examples of rocket systems. These conforming changes are clarifications and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

Changes and Conforming Amendments in § 772.1 (Definitions of Terms as Used in the Export Administration Regulations (EAR)). In § 772.1, this final rule amends the definition of the term “missiles.” (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM). Under the definition of “missiles,” this final rule revises the term “ballistic missile systems” by removing the word “systems” and adding an “s” to “missile.” This final rule revises the definition of “missiles” to reflect changes in the description of complete rocket systems in the MTCR Annex. The final rule revises the term “ballistic missile systems” by removing the word “systems,” thus referring only to the flight vehicle. This final rule makes this change to conform to the other items in the illustrative list of “missiles,” and to clarify that a missile is covered under these entries that use this control text, regardless of whether it is part of a larger system (e.g., a system including the flight vehicle and ground support equipment such as launch, recovery, and flight control equipment). This final rule also makes conforming changes to the same terms used in ECCNs 2B018 and 5A101, as described below. This final rule also makes a conforming change in the ECCNs for the use of the term “unmanned air vehicles,” which this final rule replaces with “unmanned aerial vehicles.” (Conforming Change to MTCR Annex). Substantively, there is no difference between the two formulations of the term, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR. Lastly, this final rule removes the last sentence of the definition and adds it as a note to the definition. This clarifying change is made because the sentence is more appropriately included as a note to the definition. These changes correspond with the U.S. interpretation of the controls, and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

In addition, in § 772.1, this final rule amends the definition of the revised term, “unmanned aerial vehicle.” (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). Under the definition of “unmanned aerial vehicle,” this final rule revises the term “cruise missile systems” by removing the word “systems” and adding an “s” to “missile.” The definition of “unmanned aerial vehicles” has been updated to reflect changes in the description of unmanned aerial vehicles in the MTCR Annex. The term “Cruise missile systems” has been changed by removing the word “systems,” thus referring only to the flight vehicle. This change both conforms to the other items in the illustrative list of unmanned aerial vehicles, and clarifies that an unmanned aerial vehicle is covered under these entries that use this control text, regardless of whether or not it is part of a larger system (e.g., a system including the flight vehicle and ground support equipment such as launch, recovery, and flight control equipment). This final rule also makes conforming changes to similar text used in ECCNs 2B018 and 5A101 described below. These changes correspond with the U.S. interpretation of the controls, and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

In addition, this final rule amends the CCL to reflect changes to the MTCR Annex by amending thirteen ECCNs and adding new ECCN 9B104, as follows:

ECCN 1C107. This final rule amends ECCN 1C107 by revising the introductory text of paragraph d. and adding a paragraph d.3 in the List of Items Controlled section. This final rule also adds a Note and a Technical Note to ECCN 1C107.d.3 to clarify the scope of paragraph d.3. (MTCR Annex Change, Category II: Item 6.C.6., Busan 2016 Plenary). Specifically, in the introductory text of ECCN 1C107.d, this final rule removes the phrase “silicon carbide materials” and adds in its place the phrase “high-temperature materials.” This change is made because of the addition of certain bulk machinable ceramic composite materials that this final rule adds to ECCN 1C107 under new “items” paragraph d.3. Ultra High Temperature Ceramic Composites (UHTCC) are materials that combine Ultra High Temperature Ceramics (UHTC) with fiber reinforcement. The UHTCs can be used in environments that exhibit extremes in temperature, chemical reactivity, and erosive attack. The combination of the UHTC and fiber reinforcement can mitigate some of the traditional drawbacks associated with ceramics, including a tendency to fracture. Typical end uses for these composites are leading edges for hypersonic vehicles, nose tips for re-entry vehicles, rocket motor throat inserts, jet vanes, and control surfaces, which this final rule adds as examples in the new control text. This final rule also adds a note to 1C107.d.3 to make clear that the UHTC materials that do not have fiber reinforcement are not caught under this control. Additionally, this final rule adds a technical note to 1C107.d to provide examples of UHTCs which are included. This change is expected to result in an increase of 1-3 applications received annually by BIS. This very small increase is because this material is not widely used or exported, but specific to the end uses described in the control text.

ECCN 1C111. This final rule amends ECCN 1C111 by revising paragraphs b.2 in the List of Items Controlled section to add a CAS (Chemical Abstract Service) Number. CAS Numbers are numerical identifiers assigned by the Chemical Abstracts Service (CAS) to every chemical substance described in open scientific literature, including organic and inorganic compounds, minerals, isotopes and alloys. The inclusion of CAS Numbers will make it easier to identify the materials controlled under this “items” paragraph of 1C111. This final rule revises paragraph b.2 to add the CAS Number (CAS 69102-90-5) after the material “Hydroxy-terminated polybutadiene (including hydroxyl-terminated polybutadiene) (HTPB).” (MTCR Annex Change, Category II: Item 4.C.5.b., Busan 2016 Plenary). This change is not expected to have any impact on the number of license applications received by BIS.

ECCN 2B018. This final rule amends ECCN 2B018 by revising the “MT” paragraph in the table in the License Requirements section by revising the term “ballistic missile systems” to remove the term “systems” and add an “s” to the term “missile.” (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM). In addition, in the same “MT” paragraph, this final rule revises the term “cruise missile systems” to remove the term “systems” and add an “s” to the term “missile.” (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). Lastly, this final rule makes conforming changes in the same “MT” paragraph by replacing the term “unmanned air vehicles” with “unmanned aerial vehicles” wherever this term appears in this section. (Conforming Change to MTCR Annex). Substantively, there is no difference between the old and revised terms, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR. These are conforming changes for the changes described above to the definitions of “missiles” and “unmanned aerial vehicles.” This is a clarification and will not change any scope of control. This change is not expected to have any impact on the number of license applications received by BIS.

ECCN 2B109. This final rule amends ECCN 2B109 by revising the list of examples included in the second technical note. This final rule expands the list of examples to include interstages, because interstages can also be manufactured using the flow forming machines described in ECCN 2B109. (MTCR Annex Change, Category II: Item 3.B.3., Busan 2016 Plenary). This change is not expected to have any impact on the number of license applications received by BIS, because this is only a change to the list of examples of products that can be made by this type of machine, and it does not change the scope of control.

ECCN 5A101. This final rule amends the heading of ECCN 5A101 by revising the term “ballistic missile systems” to remove the word “systems” and add an “s” to “missile.” (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM). The final rule revises the heading by revising the term “cruise missile systems” to remove the word “systems” and add an “s” after “missile.” (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). These are conforming changes for the changes described above to the definitions of “missiles” and “unmanned aerial vehicles.” In addition, this final rule revises the heading of ECCN 5A101 to create a separate parenthetical phrase for the illustrative list of examples that are unmanned aerial vehicles. This final rule does this by removing the examples of “cruise missiles, target drones, and reconnaissance drones” from the list of examples that followed the terms “unmanned aerial vehicle or rocket systems” in the heading and adding those examples immediately after the term unmanned aerial vehicle. This final rule retains the rest of the examples from the parenthetical that follows the term “rocket systems,” which will make it clearer that this parenthetical list is an illustrative list of “rocket systems.” (Conforming Change to MTCR Annex). These are clarifications and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

ECCN 7A103. This final rule amends ECCN 7A103 by adding a definition for “inertial measurement equipment and systems” for purposes of ECCN 7A103. In addition, this final rule revises “items” paragraph a and adds Note 3 in the List of Items Controlled section. (MTCR Annex Change, Category II: Item 9.A.6., Luxembourg 2016 TEM). This final rule makes these changes to remove the ambiguous term “other equipment.” Instead, the locally defined term “inertial measurement equipment or systems” that the final rule adds to ECCN 7A103, along with an illustrative list of such equipment and systems, clarifies which types of equipment containing the specified accelerometers or gyros are caught by this entry. This final rule also removes the phrase “and systems incorporating such equipment” because this phrase has been removed from the MTCR Annex. The changes this final rule makes to ECCN 7A103 to increase the clarity of the control should make the control more precise and rule out items not strictly used for navigation purposes. This change is expected to result in a decrease of 3 to 5 license applications received annually by BIS. Lastly, this final rule updates and amends ECCN 7A103 by removing Related Controls paragraph (2), which is no longer accurate after changes were made to the EAR to correspond with changes made to USML Category XII (especially for unmanned aerial vehicles (UAVs) ) that became effective December 31, 2016 (See October 12, 2016, (81 FR 70320) final rule). In addition, this paragraph (2) can be removed because the USML Order of Review and CCL Order of Review will provide sufficient guidance on where items that are subject to the ITAR are classified under the USML and where items that are subject to the EAR are classified in either the “600 series” or in other ECCNs in Category 7 of the CCL. Lastly, as a conforming change to the removal of paragraph (2), this final rule redesignates Related Controls paragraph (3) as new Related Controls paragraph (2).

ECCNs 9A101, 9E101, and 9E102. This final rule amends ECCN 9E101 by revising the Related Controls paragraph in the List of Items Controlled section to make a conforming change for the use of the term “unmanned air vehicles,” which this final rule changes to “unmanned aerial vehicles.” In addition, this final rule amends ECCN 9E101 and 9E102 by revising the headings of these two ECCNs to make conforming changes for the use of the term “unmanned air vehicles,” which this final rule changes to “unmanned aerial vehicles.” Substantively, there is not a difference in the two formulations of the term, but for consistency with how the term is used in other parts of the EAR, this final rule makes these conforming changes. (Conforming Change to MTCR Annex). This is a clarification and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

New ECCN 9B104 and Related Conforming Amendments to 9D101, 9E001, and 9E002. This final rule adds new ECCN 9B104 to control certain aerothermodynamic test facilities. The facilities controlled under this new ECCN 9B104 are those that are usable for rockets, missiles, or unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km and their subsystems, and having an electrical power supply equal to or greater than 5 MW or a gas supply total pressure equal to or greater than 3 MPa. This final rule adds this new ECCN 9B104 to complement the controls that already exist for aerodynamic test facilities in order to fully cover the types of ground test facilities necessary to reproduce the flight environments that occur during the reentry phase. Plasma arc jet and plasma wind tunnel facilities simulate the atmospheric reentry thermal effects due to high velocity around the vehicles and are key to the qualification of vehicle thermal protection subsystems. This final rule includes values for electrical power supply and gas supply total pressure in new ECCN 9B104 to exclude commercial systems of a similar nature from this new ECCN.

In addition, this final rule adds a Related Definition as part of new ECCN 9B104 to define the term “aerothermodynamic test facilities”. This definition specifies that these facilities include plasma arc jet facilities and plasma wind tunnels for the study of thermal and mechanical effects of airflow on objects. (MTCR Annex Change, Category II: Item 15.B.6., Luxembourg 2016 TEM). As a conforming change to the addition of ECCN 9B104, this final rule adds 9B104 to the heading of ECCN 9D101 and revises the “MT” paragraph in the table in the License Requirements section of ECCNs 9E001 and 9E002 to add 9B104. The headings of ECCNs 9E001 and 9E002 do not need to be revised to add technology for 9B104, because those two technology ECCNs apply to 9B ECCNs, except for those specifically excluded in the ECCN headings. These changes are expected to result in an increase of no more than 1 application received annually by BIS, because such systems and their software and technology are exported infrequently.

ECCN 9D104. This final rule amends ECCN 9D104 by adding a note to the List of Items Controlled section. This note clarifies that ECCN 9D104 also includes specific software for the conversion of manned aircraft to an unmanned aerial vehicle. (MTCR Annex Change, Category II: Item 1.D.2., Luxembourg 2016 TEM). This change is expected to result in an increase of 1 to 2 applications received annually by BIS, because, although this software was already controlled here, the note will clarify the scope of ECCN 9D104.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or enroute aboard a carrier to a port of export or reexport, on July 7, 2017, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before August 7, 2017. Any such items not actually exported or reexported before midnight, on August 7, 2017, require a license in accordance with this rule.

Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. The MTCR was formed in 1987 by the U.S. and G-7 countries (Canada, France, Germany, Italy, Japan, and the UK) to address the increasing proliferation of nuclear weapons by addressing the most destabilizing delivery system for such weapons. The MTCR seeks to limit the risk of proliferation of weapons of mass destruction by controlling exports of goods and technologies that could make a contribution to delivery systems (other than manned aircraft) for such weapons. The proliferation of such weapons has been identified as a threat to domestic and international peace and security. Commerce estimates this rule will increase the number of license requests by fewer than four annually.

This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

For the purposes of E.O. 13771, this rule is issued with respect to a national security function of the United States. The cost-benefit analysis indicates the rule is intended to improve national security as its primary direct benefit, and the regulation qualifies for a good cause exception under 5 U.S.C. 553(b)(B). Accordingly, this rule meets the requirements set forth in the April 5, 2017, OMB guidance implementing E.O 13771, and is, therefore, exempt from the requirements of E.O. 13771.

Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

This regulation involves a collection currently approved by OMB under control number 0694-0088, Simplified Network Application Processing System. This collection includes, among other things, license applications, and carries a burden estimate of 43.8 minutes for a manual or electronic submission for a total burden estimate of 31,833 hours. BIS expects the burden hours associated with this collection to increase slightly by 2 hours and 19 minutes for an estimated cost increase of $85. This increase is not expected to exceed the existing estimates currently associated with OMB control number 0694-0088. Although this final rule makes important changes to the EAR for items controlled for missile technology reasons, Commerce believes the overall increase in costs and burdens due to this rule will be minimal.

Any comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, may be sent to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

The provisions of the Administrative Procedure Act (APA) (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this action involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Immediate implementation of these amendments fulfills the United States' international commitments to the MTCR. The MTCR contributes to international peace and security by promoting greater responsibility in transfers of missile technology items that could make a contribution to delivery systems (other than manned aircraft) for weapons of mass destruction. The MTCR consists of 35 member countries acting on a consensus basis. The changes discussed in this rule implement agreements reached at the October 2016 Plenary in Busan, South Korea, and the March 2016 Technical Experts Meeting in Luxembourg City, Luxembourg. Since the United States is a significant exporter of the items discussed in this rule, implementation of this provision is necessary for the MTCR to achieve its purpose.

Although the APA requirements in section 553 are not applicable to this action under the provisions of paragraph (a)(1), this action also falls within two other exceptions in the section. The subsection (b) requirement that agencies publish a notice of proposed rulemaking that includes information on the public proceedings does not apply when an agency for good cause finds that the notice and public procedures are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates the finding (and reasons therefor) in the rule that is issued (5 U.S.C. 553(b)(B)). In addition, the section 553(d) requirement that publication of a rule shall be made not less than 30 days before its effective date can be waived if an agency finds there is good cause to do so.

The section 553 requirements for notice and public procedures and for a delay in the date of effectiveness do not apply to this rule, as there is good cause to waive such practices. Delay in implementation would disrupt the movement of these potentially national- and international-security-threatening items globally, creating disharmony between export control measures implemented by MTCR members. Export controls work best when all countries implement the same export controls in a timely manner. Delaying this rulemaking would prevent the United States from fulfilling its commitment to the MTCR in a timely manner, would injure the credibility of the United States in this and other multilateral regimes, and may impair the international communities' ability to effectively control the export of certain potentially national- and international-security-threatening materials. Therefore, this regulation is issued in final form, and is effective July 7, 2017.

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

Accordingly, parts 742, 744, 772 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

The Coast Guard will enforce the following special local regulations listed in 33 CFR part 100, Safety of Life on Navigable Waters, on the following dates and times:

(1) § 100.919 International Bay City Grand Prix (formerly Bay City River Roar), Bay City, MI. This special local regulation will be enforced from 10 a.m. to 7 p.m. each day from June 23 through June 25, 2017.

(2) § 100.914 Trenton Rotary Roar on the River, Trenton, MI. This special local regulation will be enforced from 8 a.m. to 8 p.m. each day from July 14 through July 16, 2017.

(3) § 100.915 St. Clair River Classic Offshore Race, St. Clair, MI. This special local regulation will be enforced from 10 a.m. to 7 p.m. each day from July 24 through July 30, 2017.

(4) § 100.928 Frogtown Race Regatta, Toledo, OH. This special local regulation will be enforced from 5 a.m. to 7 p.m. on September 23, 2017.

(5) § 100.927 Partnership in Education, Dragon Boat Festival, Toledo, OH. This special local regulation will be enforced from 6 a.m. to 6 p.m. on July 22, 2017.

In accordance with § 100.901, entry into, transiting, or anchoring within these regulated areas is prohibited unless authorized by the Coast Guard patrol commander (PATCOM). The PATCOM may restrict vessel operation within the regulated area to vessels having particular operating characteristics.

Vessels permitted to enter this regulated area must operate at a no-wake speed and in a manner that will not endanger race participants or any other craft.

The PATCOM may direct the anchoring, mooring, or movement of any vessel within this regulated area. A succession of sharp, short signals by whistle or horn from vessels patrolling the area under the direction of the PATCOM shall serve as a signal to stop. Vessels so signaled shall stop and shall comply with the orders of the PATCOM. Failure to do so may result in expulsion from the area, a Notice of Violation for failure to comply, or both.

If it is deemed necessary for the protection of life and property, the PATCOM may terminate the marine event or the operation of any vessel within the regulated area.

In accordance with the general regulations in § 100.35 of this part, the Coast Guard will patrol the regatta area under the direction of a designated Coast Guard Patrol Commander (PATCOM). The PATCOM may be contacted on Channel 16 (156.8 MHz) by the call sign “Coast Guard Patrol Commander.”

Under the provisions of 33 CFR 100.928, vessels transiting within the regulated area shall travel at a no-wake speed and remain vigilant for event participants and safety craft. Additionally, vessels shall yield right-of-way for event participants and event safety craft and shall follow directions given by the Coast Guard's on-scene representative or by event representatives during the event.

The “on-scene representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on his behalf. The on-scene representative of the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port Detroit or his designated on scene representative may be contacted via VHF Channel 16.

The rules in this section shall not apply to vessels participating in the event or to government vessels patrolling the regulated area in the performance of their assigned duties.

This document is issued under authority of 33 CFR 100.35 and 5 U.S.C. 552(a). If the Captain of the Port determines that any of these special local regulations need not be enforced for the full duration stated in this document, he may suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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 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 and contrary to the public interest. The Coast Guard did not receive the final details for this event until there was insufficient time remaining before the event to publish a NPRM. Delaying the effective date of this rule to wait for a comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public and vessels from the hazards associated with the high speed competition involving personal water craft on August 12, 2017, and August 13, 2017.

The legal basis for the rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

On August 12, 2017, and August 13, 2017, a high speed competition involving personal watercraft will take place on Lake Michigan near Whiting, Indiana. The Captain of the Port Lake Michigan has determined that this competition will pose a significant risk to public safety and property. Such hazards include collisions among participants or spectator vessels. This rule is needed to protect personnel and vessels in the navigable waters within the safety zone while the competition is taking place.

With the aforementioned hazards in mind, the Captain of the Port Lake Michigan has determined that this temporary safety zone is necessary to ensure the safety of the public during the high speed competition involving personal watercraft on Lake Michigan. This safety zone will be enforced from 7 a.m. to 5 p.m. on August 12, 2017 and from 7 a.m. to 5 p.m. on August 13, 2017. This zone will encompass all waters of Lake Michigan near Whiting, Indiana bounded by a line drawn from the shoreline at 41°41.235′ N, 087°29.779′ W., then northeast to 41°41.494′ N., 087°29.559′ W., then south to 41°40.891′ N., 087°28.486′ W., then southwest to the shoreline at 41°40.725′ N., 087°28.633′ W., then along the shoreline back to the point of origin at 41°41.235′ N., 087°29.779′ W. (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or a designated on-scene representative. The Captain of the Port or a 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 only on August 12, 2017 from 7 a.m. to 5 p.m., and August 13, 2017, from 7 a.m. to 5 p.m. 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.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit on a portion of the Lake Michigan near Whiting, Indiana on August 12, 2017 from 7 a.m. to 5 p.m., and August 13, 2017 from 7 a.m. to 5 p.m.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, we will issue local Broadcast Notice to Mariners and Local Notice to Mariners so vessel owners and operators can plan accordingly.

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 this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone for a high speed competition involving personal watercraft on Lake Michigan near Whiting, Indiana. 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) supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble. 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:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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 29, 2017, or in the event of inclement weather July 30, 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 700-foot radius of position 43°28′06″ N., 076°31′07″ W. along with 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. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

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.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of 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).

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.

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 to ensure the safety of spectators or public in the area. 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:

The Coast Guard will enforce the Safety Zone; Annual Event in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939(a)(8) for the following event:

(1) Brewerton Fireworks, Brewerton, NY; The safety zone listed in 33 CFR 165.939(a)(8) will be enforced on July 3, 2017, with a rain date of July 8, 2017, from 9 p.m. to 10:30 p.m. within a 420 foot radius of the barge located at position 43°14′18.32″ N., 076°8′1.90″ W. (NAD83).

Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within the safety zone during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or his designated representative. Those seeking permission to enter the safety zone may request permission from the Captain of Port Buffalo via channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zone shall obey the directions of the Captain of the Port Buffalo or his designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. If the Captain of the Port Buffalo determines that the safety zone need not be enforced for the full duration stated in this notice he or she may use a Broadcast Notice to Mariners to grant general permission to enter the respective safety zone.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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 Coast Guard did not receive the final details of this fireworks display until there was insufficient time remaining before the event to publish an NPRM.

We are issuing this rule, and 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. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with fireworks from 10 p.m. to 10:20 p.m. on July 20, 2017 will be a safety concern to anyone within a 420-foot radius of the launch site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks are being displayed.

This rule establishes a safety zone from 10 p.m. through 10:20 p.m. on July 20, 2017. In the event of inclement weather the regulated area will be enforced from 10 p.m. through 10:20 p.m. on July 21, 2017. The safety zone will encompass all U.S. navigable waters of the St. Clair River, Port Huron, MI, within a 420-foot radius of position 42°58.846′ N., 082°25.201′ W. (NAD 83). No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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.

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. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” 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.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of 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).

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the St. Clair River from 10:00 p.m. to 10:20 p.m. on July 20 or July 21, 2017. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than thirty minutes that will prohibit entry within 420-feet of the firework launch site. It is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(g) of the Commandant Instruction. 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:

Throughout this document, “we,” “us” and “our” refer to the EPA.

On March 10, 2017 at 82 FR 13280, the EPA proposed to approve the following rule into the California SIP.

Rule 2200 provides a mechanism for obtaining documentation of emission reductions resulting from trip reduction programs. According to the District, the rule is expected to help reduce VOC and NOX emissions by encouraging individuals to select rideshare alternatives rather than drive alone, and by educating employees and the public about the health impacts of motor vehicle pollution. We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.1

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. As we discussed in our proposed action, the rule establishes a framework for documenting emissions reductions from trip reduction programs, but does not require any specific trip reduction programs nor does it contain a good faith estimate of emission reductions. Consequently, it is not appropriate to credit this rule with emission reductions in the SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the AVAQMD rule described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 5, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Wisconsin submitted a SIP revision on January 31, 2017, along with supplemental information on March 20, 2017. The submittal contains Wisconsin Administrative Order AM-16-01 signed on January 31, 2017, by the Director of the Air Management Bureau of the Wisconsin Department of Natural Resources, which establishes a requirement for a taller cupola stack, an SO2 emission limit, and associated requirements for the mineral wool production process at USG-Walworth. Wisconsin established these requirements to enable the area near 1 USG-Walworth to qualify in the future for being designated “attainment” of the 2010 primary SO2 NAAQS.2

USG-Walworth cannot demonstrate modeled attainment of the 2010 SO2 NAAQS in accordance with EPA's Draft SO2 NAAQS Designations Modeling Technical Assistance Document 3 in absence of new requirements pertaining to the mineral wool production process. Therefore, Wisconsin conducted air dispersion modeling using the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) version 16216 (released on December 20, 2016) and 16216r (released on January 17, 2017) in accordance with appendix W of part 51 of chapter 40 of the Code of Federal Regulations (CFR) to determine a new set of requirements, including an increase in the cupola stack height from 68.5 feet to 175 feet above ground and an SO2 emission limit for the mineral wool production process at USG-Walworth in conjunction with a minimum cupola stack flue gas flow rate. The air quality modeling of these conditions supports Wisconsin's conclusion that these limits provide for attainment of the 2010 SO2 NAAQS.

The purpose of this rulemaking is to take action on Wisconsin's request to approve AM-16-01 into the Wisconsin SIP and thereby make federally enforceable the requirement for the taller stack, the SO2 emission limit, and the associated requirements therein. Once these requirements have become federally enforceable, Wisconsin intends to use them to demonstrate AERMOD-modeled attainment for the 2010 SO2 NAAQS for the area near USG-Walworth. EPA intends to designate the area near USG-Walworth for the 2010 SO2 NAAQS, under a separate future rulemaking to be finalized by December 31, 2017.4

Wisconsin issued AM-16-01 on January 31, 2017, for USG-Walworth, with a compliance date of October 1, 2017. This order established a cupola stack height increase from 68.5 feet to 175 feet above ground level, a cupola stack flue gas flow rate of 23,200 actual cubic feet per minute (ACFM) in conjunction with an SO2 emission limit of 301.3 pounds per hour (lbs/hr), and other associated requirements for the mineral wool production process at USG-Walworth.

Dispersion techniques, such as increasing the final exhaust plume rise by manipulation of source parameters like increasing stack heights and flue gas flow rates, are not approvable in most circumstances. EPA's stack height provisions codified at 40 CFR 51.118 arise out of CAA section 123(a), which states that the degree of emission limitation required for control of any air pollutant under an applicable implementation plan under this subchapter shall not be affected in any manner by so much of the stack height of any source as exceeds good engineering practice (as determined under regulations promulgated by the Administrator), or any other dispersion technique.

“Dispersion technique,” as defined at 40 CFR 51.100(hh)(1), means any technique which attempts to affect the concentration of a pollutant in the ambient air by: Using that portion of a stack which exceeds good engineering practice stack height; varying the rate of emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant; or increasing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, stack parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.

In the case of USG-Walworth, the raising of the stack to 175 feet does not exceed good engineering practice stack height as defined at § 51.100(ii), and AM-16-01 does not provide for the allowable rate of emissions to vary according to atmospheric conditions or ambient pollutant concentrations as per § 51.100(hh)(1)(ii). In some cases, increasing the final exhaust plume rise by manipulation of the stack height and flue gas flow rate is a dispersion technique as per § 51.100(hh)(1)(iii). However, there is an exception under 40 CFR 51.100(hh)(2)(v) where dispersion techniques under § 51.100(hh)(1)(iii) do not include techniques that increase the final exhaust gas plume rise where the resulting allowable emissions of sulfur dioxide from the facility do not exceed 5,000 tons per year. Such an increase of plume rise is not considered a dispersion technique when the resulting allowable emissions of SO2 from the facility do not exceed 5,000 tons per year (TPY). The AM-16-01 SO2 emission limit of 301.3 lbs/hr is equivalent to 1,319.69 TPY, which accounts for over 99% of the allowable SO2 emitted by all emission units at USG-Walworth. Additionally, AM-16-01 includes a requirement that USG-Walworth only fire natural gas in the other emission units at the facility, including the boiler (B10), the acoustical tile dryer (P32), and the finishing/curing ovens (P34A and P38A). Therefore, the facility-wide allowable SO2 emissions from USG-Walworth resulting from the AM-16-01 requirement to increase the cupola stack height from 68.5 feet to 175 feet above ground level do not exceed 5,000 TPY. Therefore, EPA proposes to approve the increase in the cupola stack height.

Wisconsin set an SO2 emission limit of 301.3 lbs/hr for the mineral wool production process in conjunction with a cupola stack flue gas flow rate of 23,200 ACFM. For emission rates less than 301.3 lbs/hr, Wisconsin established a required minimum cupola stack flue gas flow rate which varies based on the SO2 emission rate. AM-16-01 requires that the cupola stack flue gas flow rate in ACFM shall be equal to or greater than the flow rate calculated according to Equation 1.

To develop Equation 1, Wisconsin plotted the worst case (highest) SO2 emissions versus worst case (lowest) flue gas flow rates as estimated from information contained in 2015 and 2010 stack testing reports and an August 2014-August 2016 dataset provided by USG-Walworth. Wisconsin fit a trend line (Equation 1) to the plot and included this equation in AM-16-01 as the minimum flue gas flow rate requirement for USG-Walworth (e.g. for a given SO2 emission rate less than 301.3 lbs/hr, USG-Walworth must use Equation 1 to determine the corresponding required minimum flue gas flow rate under which it must operate). When emissions are the full allowable 301.3 lbs/hr, the minimum flow rate is 23,200 ACFM; lower minimum flow rates apply at lower emission levels.

Wisconsin's AM-16-01 method of determining compliance with the minimum flue gas flow rate (EPA Method 2) is to be conducted on the same schedule, described below, as that for compliance with the SO2 emission limit (EPA Method 6C). AM-16-01 also requires operation of the thermal oxidizer and baghouse whenever the cupola is in operation/fired and additional requirements for monitoring and maintaining these control devices to ensure they are functioning properly, including an interlock system which only allows operation of the cupola if the thermal oxidizer incinerator chamber temperature is at or above 1,300 degrees Fahrenheit averaged over any one-hour period.

In addition to the 1-hour limit of 301.3 lbs/hour in AM-16-01, Wisconsin opted to set a 30-day rolling average limit of 238.0 lbs/hour. EPA's April 2014 “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions” discusses the option to establish limits with averaging times up to 30 days in length, recommends that any such limit be established at a level that is comparably stringent to the one-hour average limit, and recommends a detailed procedure for determining such a comparably stringent limit. Wisconsin followed the recommendations of the 2014 guidance in determining an appropriate level for this limit. Therefore, the state has applied an appropriate adjustment, yielding a 30-day rolling average emission limit that has comparable stringency to the one-hour average limit. Wisconsin used an adjustment factor of 0.79, which EPA identified in its 2014 guidance as an appropriate adjustment factor for determining equivalent emission limitation between 1-hour and 30-day rolling average timeframes for uncontrolled coal-fired boilers based on a national analysis of utility coal boiler emissions.

Wisconsin's method of determining compliance with the 301.3 lbs/hr limit as set forth in AM-16-01 uses EPA-approved stack testing methods, and includes an initial stack test that must be conducted no later than April 1, 2018, which is 180 days after the AM-16-01 compliance date of October 1, 2017, and periodic stack testing conducted every five years within 90 days of the anniversary date of the initial stack test. Wisconsin's method of determining continuous compliance, as set forth in AM-16-01, requires a mass balance calculation to demonstrate compliance with the 238.0 lbs/hr limit on a 30-day rolling average basis. Under this rule, stack tests at the facility must show compliance with the 1-hour emission limit of 301.3 lbs/hr, but continuous emissions data, collected from routine mass balance calculations, are used to assess compliance with the 30-day average emission limit of 238.0 lbs/hr. Wisconsin has thereby established a two-tiered enforcement regime, in which stack tests provide occasional assessment of compliance, tested against a 1-hour limit, and continuous emissions data, as collected via routine mass balance calculations, provide a continuous assessment of compliance, tested against a 30-day average limit.

Wisconsin's mass balance equation in AM-16-01 is the difference between the sum of the estimated sulfur content of all the materials loaded into the cupola and the sum of the estimated sulfur content in the mineral wool product output from the cupola in lbs/day divided by the operating hours per day and multiplied by the molecular weight ratio of SO2 to sulfur. AM-16-01 requires USG-Walworth to develop a compliance and monitoring plan and to monitor, record, and report the information necessary for calculating the 30-day rolling average SO2 emission limit via the mass balance equation, such as operating hours, operating days, coke and all other material usage amounts. AM-16-01 includes requirements to sample the sulfur, moisture, and heat content of each of the materials input to the cupola and the sulfur content of the mineral wool product or waste material output from the cupola. The sampling requirements include initial material sampling, ongoing material sampling, ongoing low sulfur material sampling, mineral wool product and waste sampling, alternate sampling frequency which increases if the 30-day rolling average SO2 emission rate is equal to or greater than 95% of the limit for three or more operating days during the previous 12 calendar months. Likewise, sampling frequency can be decreased if the 30-day rolling average SO2 emission rate is equal to or less than 70% of the limit for 12 consecutive months. The sampling requirements include sample collection and preparation methods as per those of ASTM International, formerly the American Society for Testing and Materials (ASTM). Finally, AM-16-01 includes a requirement for USG-Walworth to submit a revision request to incorporate the applicable requirements of AM-16-01 into the USG-Walworth operating permit by June 23, 2019.

EPA is evaluating AM-16-01 on the basis of whether its requirements are measurable (and thus enforceable) and whether it strengthens Wisconsin's SIP. When imposing quantitative requirements such as emission limits, it is important that these requirements be measurable so as to determine compliance. While the use of an electronic continuous emissions monitoring system (CEMS) would be an ideal way to measure the SO2 emission rate from the mineral wool production process and the flue gas flow rate from the cupola stack for compliance determination purposes, EPA's analysis, above, of Wisconsin's AM-16-01 compliance requirements shows that Wisconsin has developed a conservative mass balance approach that allows for the ongoing measurement of the USG-Walworth mineral wool production process SO2 emission rate to determine compliance with the SO2 emission limit contained in AM-16-01. The AM-16-01 requirements are carefully designed such that compliance with the SO2 emission limit can be determined via a combination of testing, sampling, monitoring, recordkeeping, and reporting making the SO2 emission limit and associated requirements contained in AM-16-01 measureable and enforceable. Therefore, in the absence of a CEMS, EPA finds acceptable the AM-16-01 mass balance approach of compliance monitoring in conjunction with required periodic stack testing.

The USG-Walworth mineral wool production process is already subject to Wisconsin rule NR 417.07(2)(b), which is a statewide SO2 emission limit of 5.5 pounds per Million British Thermal Units (lbs/MMBTU) that applies to any steam generating unit or other fuel-burning equipment firing solid fossil fuel at a facility that has a total heat input capacity on solid fossil fuel of less than 250 MMBTU/hr and which was incorporated into the Wisconsin SIP in 1993 (58 FR 29537). This SIP requirement will not be removed with the approval of AM-16-01 into the Wisconsin SIP. AM-16-01 provides additional requirements to the 5.5 lbs/MMBTU emission limit already in the Wisconsin SIP. Therefore, EPA's approval of AM-16-01 would strengthen the Wisconsin SIP. Since the current SO2 emission limit of 5.5 lbs/MMBTU will remain in the SIP (58 FR 29537), EPA's approval of AM-16-01 into the Wisconsin SIP would not cause there to be any relaxation of the SO2 emission limit in the Wisconsin SIP with respect to USG-Walworth and would, therefore, not interfere with CAA section 110(l), which is the anti-backsliding provision of the CAA. Therefore, EPA is approving AM-16-01 into the Wisconsin SIP.

As previously stated, EPA intends to designate the area near USG-Walworth for the 2010 SO2 NAAQS under a separate future rulemaking to be finalized by December 31, 2017. If AM-16-01 becomes SIP-approved and thereby federally enforceable in a timely fashion, EPA will formally evaluate the adequacy of the AM-16-01 requirements to provide for attainment as part of the rulemaking on the 2010 SO2 NAAQS designation for the area near USG-Walworth.

EPA is approving into the Wisconsin SIP AM-16-01, which contains a requirement for a taller cupola stack, an SO2 emission limit, and associated requirements for the mineral wool production process at USG-Walworth. EPA confirms that the requirements contained in AM-16-01 are measureable, enforceable, and strengthen the Wisconsin SIP. By approving AM-16-01 into the Wisconsin SIP, the stack height requirement, the SO2 emission limit, and the associated requirements will become Federally enforceable.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective September 5, 2017 without further notice unless we receive relevant adverse written comments by August 7, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective September 5, 2017.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Wisconsin Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and/or at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 5, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On April 12, 2017, Tennessee submitted a request that EPA relax the federal RVP requirement from 7.8 psi to 9.0 psi for gasoline sold between June 1 and September 15 of each year (i.e., during high ozone season) in Shelby County. As part of that request, Tennessee evaluated whether removal of this requirement would interfere with air quality in Shelby County. To make this demonstration of noninterference, Tennessee completed a technical analysis, including modeling, to estimate the change in emissions that would result from a switch to 9.0 psi RVP fuel in Shelby County. In a notice of proposed rulemaking (NPR) published on May 11, 2017 (82 FR 21966), EPA proposed to approve the State's noninterference demonstration. The details of Tennessee's submittal and the rationale for EPA's actions are explained in the NPR. EPA did not receive any adverse comments on the proposed action.

EPA is approving Tennessee's April 12, 2017, noninterference demonstration supporting the State's request to relax the RVP standard to 9.0 psi in Shelby County. EPA has determined that the change in the RVP requirements for Shelby County will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA.

EPA has determined that Tennessee's April 12, 2017, RVP-related SIP revision is consistent with the applicable provisions of the CAA for the reasons provided in the NPR. Through this action, EPA is not removing the federal 7.8 psi RVP requirement for Shelby County. Any such action would occur in a separate rulemaking.

In accordance with 5 U.S.C. 553(d), EPA finds that there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary because today's action approves a noninterference demonstration that will serve as the basis of a subsequent action to relieve the Area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule grants or recognizes an exemption or relieves a restriction, and section 553(d)(3), which allows an effective date less than 30 days after publication as otherwise provided by the agency for good cause found and published with the rule. The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule will serve as a basis for a subsequent action to relieve the Area from certain CAA requirements. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 5, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

On September 25, 2006, the Commonwealth of Pennsylvania through the Pennsylvania Department of Environmental Protection (PADEP) submitted a revision to its SIP that addresses certain requirements of RACT under the 1997 ozone NAAQS. The SIP revision was entitled, “Pennsylvania Department of Environmental Protection Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) Revision Under the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS),” September 2006, and will be referred to in this rulemaking action as “the 2006 RACT SIP.” On June 27, 2016, PADEP withdrew from EPA review portions of the 2006 RACT SIP revision related to RACT for major stationary sources of VOC and NOX. EPA has included in the docket a redacted version of the 2006 RACT SIP to identify which portions of this document remain before EPA and are the subject of this notice of proposed rulemaking. Pennsylvania addressed the remaining RACT requirements for the 1997 ozone NAAQS (which Pennsylvania withdrew from the 2006 RACT SIP) in a subsequent SIP revision submittal, which will be the subject of a separate rulemaking action.

Ozone is formed in the atmosphere by photochemical reactions between VOCs, NOX, and carbon monoxide (CO) in the presence of sunlight. In order to reduce ozone concentrations in the ambient air, the CAA requires all nonattainment areas to apply control on VOC and NOX emission sources to achieve emission reductions. Among effective control measures, RACT controls significantly reduce VOC and NOX emissions from major stationary sources.

RACT is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53761 at 53762, September 17, 1979). Section 182 of the CAA sets forth two separate RACT requirements for ozone nonattainment areas. The first requirement, contained in section 182(a)(2)(A) of the CAA, and referred to as RACT fix-up requires the correction of RACT rules for which EPA identified deficiencies before the CAA was amended in 1990. Pennsylvania previously corrected its deficiencies under the 1-hour ozone standard and has no further deficiencies to correct under this section of the CAA. The second requirement, set forth in section 182(b)(2) of the CAA, applies to moderate (or worse) ozone nonattainment area as well as to marginal and attainment areas in ozone transport regions (OTRs) established pursuant to section 184 of the CAA, and requires these areas to implement RACT controls on all major VOC and NOX emission sources and on all sources and source categories covered by a control technique guideline (CTG) issued by EPA.1 See CAA section 182(b)(2) and 184(b). Alternatively, if a state has no sources in a particular source category covered by an EPA CTG, the state may submit a negative declaration in a SIP submittal asserting no subject sources are within the state.

In 1997, EPA revised the health-based NAAQS for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time, than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially children and adults who are active outdoors, and individuals with a preexisting respiratory disease, such as asthma. EPA subsequently revised the ozone NAAQS in 2008 and again in 2015. This rulemaking only addresses SIP requirements under the 1997 ozone NAAQS.

The entire Commonwealth of Pennsylvania is in the OTR. Therefore, under CAA section 184, the entire Commonwealth was subject to RACT requirements under the 1-hour ozone standard. Pennsylvania has implemented numerous RACT controls to meet the CAA RACT requirements under the 1-hour and 1997 8-hour ozone NAAQS. These RACT controls were promulgated in title 25 of the Pennsylvania Code, chapter 129, Standards for Sources.

EPA requires under the 1997 ozone NAAQS that states meet the CAA RACT requirements, either through a certification that previously adopted RACT controls in their SIP revisions approved by EPA under the 1-hour ozone NAAQS represent adequate RACT control levels for 1997 ozone NAAQS attainment purposes, or through the adoption of new or more stringent regulations that represent RACT control levels. A certification must be accompanied by appropriate supporting information such as consideration of information received during the public comment period and consideration of new data. This information may supplement existing RACT guidance documents that were developed for the 1-hour standard, such that the State's SIP accurately reflects RACT for the 8-hour ozone standard based on the current availability of technically and economically feasible controls. Adoption of new RACT regulations will occur when states have new stationary sources not covered by existing RACT regulations, or when new data or technical information indicates that a previously adopted RACT measure does not represent a newly available RACT control level. Pursuant to section 184(b)(1)(B) of the CAA, Pennsylvania had the obligation for the 1997 ozone NAAQS to implement RACT with respect to sources of VOCs in the Commonwealth covered by a CTG issued before or after November 15, 1990 (but before September 15, 2006 when SIP requirements were due for the 1997 ozone NAAQS). Another 1997 ozone NAAQS requirement for RACT is to submit a negative declaration that there are no CTG or non-CTG major sources of VOC and NOX emissions within the Commonwealth of Pennsylvania. The RACT requirements for the 1997 ozone NAAQS were due to EPA as SIP revisions by September 15, 2006. As stated above, PADEP submitted its 2006 RACT SIP on September 25, 2006 to address RACT requirements for certain VOC sources and for CTG sources.

Pennsylvania's 2006 RACT SIP revision satisfies certain RACT requirements for the 1997 ozone NAAQS through certification that previously adopted RACT controls in Pennsylvania's SIP that were approved by EPA under the 1-hour ozone NAAQS are based on the currently available technically and economically feasible controls, and continues to represent RACT for the 1997 ozone NAAQS and negative declarations that certain CTG source categories do not exist in Pennsylvania.

Table 1 lists the CTG source categories due which were required to have RACT rules under the 1997 ozone NAAQS as these CTGs were issued by EPA prior to the due date for SIP requirements for this NAAQS (i.e., September 15, 2006). Table 1 also shows the regulations which PADEP has adopted for those source categories, their state effective dates, and the date and Federal Register (FR) citation of EPA's approval of each regulation. In addition, Table 1 shows the source categories for which Pennsylvania has submitted negative declarations as none of these sources existed in the Commonwealth for those specific categories. In its 2006 RACT SIP, PADEP has certified that these rules constitute RACT for the 1997 ozone NAAQS.

In its 2006 RACT SIP, PADEP has also certified that three regulations constitute RACT for certain VOC sources for the 1997 ozone NAAQS based on the currently available technically and economically feasible controls. Table 2 lists these source categories, their state effective dates, and the date and FR citation of EPA's approval of each regulation.

EPA's review of this material indicates that Pennsylvania's 2006 RACT SIP meets certain RACT requirements for the 1997 ozone NAAQS for applicable CTG source categories and for three non-CTG VOC categories: manufacture of surface active agents, mobile equipment repair and refinishing, and ethylene production plants to address sections 182(b) and 184(b) of the CAA.

EPA is approving Pennsylvania's 2006 RACT SIP, which was submitted on September 25, 2006. This SIP revision consists of (1) Pennsylvania's certification that previously adopted and SIP approved RACT controls for CTG source categories and three non-CTG source categories are based on the currently available technically and economically feasible controls, and that they continue to represent RACT for the 8-hour implementation purposes and (2) negative declaration that there are no sources in the Commonwealth of Pennsylvania for five CTG source categories. EPA finds this 2006 RACT SIP meets requirements for RACT in CAA section 182(b) and 184(b) with respect to these CTG categories, to the negative declarations, and to these specific VOC source categories. Pennsylvania has addressed its remaining obligations to address major stationary source RACT for VOC and NOX sources in a subsequent SIP submittal for which EPA will take later, separate rulemaking action.

EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 5, 2017 without further notice unless EPA receives adverse comment by August 7, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 5, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action approving Pennsylvania's 2006 RACT SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0013 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 5, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0013, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of May 19, 2016 (81 FR 31581) (FRL-9946-02), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP) 5E8428 submitted by IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requests that 40 CFR 180.613 be amended by establishing tolerances for residues of the fungicide flonicamid, N-(cyanomethyl)-4-(trifluoromethyl)-3-pyridinecarboxamide, and its metabolites, TFNA (4-trifluoromethylinicotinic acid), TFNA-AM (4-trifluoromethylnicotinamide), and TFNG, N-(4-trifluoromethylnicotinoyl)glycine, calculated as the stoichiometric equivalent of flonicamid, in or on pea and bean, dried shelled, except soybean, subgroup 6C at 3.0 parts per million (ppm); Pea and bean, succulent shelled, subgroup 6B at 6.0 ppm; and Vegetable, legume, edible podded, subgroup 6A at 4.0 ppm. This petition contains an additional request to increase the existing tolerance on Vegetable, fruiting, group 8-10 from 0.4 to 1.50 ppm, but EPA has already taken action on that specific request, in a final tolerance rule published in the Federal Register on May 11, 2017 (82 FR 21941) (FRL-9959-91).

A summary of the petition prepared by ISK Biosciences Corporation, the registrant, is available in the docket, http://www.regulations.gov, at docket #: EPA-HQ-OPP-2016-0013. One comment was received on the notice of filing. EPA's response to the comment is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA is establishing a tolerance for Pea and bean, succulent shelled, subgroup 6B that varies slightly from what the petitioner requested. The reason for this change is explained in Unit IV.D.

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

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

In the Federal Register of May 11, 2017 (82 FR 21941) (FRL-9959-91), EPA established tolerances for residues of flonicamid in or on several commodities. The risk assessments supporting that action aggregated dietary and non-occupational exposures from existing and proposed uses of flonicamid, including from the exposures associated with the tolerances requested in this action. That assessment, which included the tolerances in today's action, concluded that the tolerances are safe; therefore, EPA is relying upon that Federal Register document and the risk assessments supporting the findings in that document to support the safety finding for the tolerances that are the subject of this action.

Specific information on the studies received and the nature of the adverse effects caused by flonicamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document, “Subject: Flonicamid. Human Health Risk Assessment for New Uses on Legume Vegetables, Subgroups 6A, 6B, and 6C; Add Directions for use on Greenhouse Grown Peppers and Increase the Tolerance for Residues on Fruiting Vegetables, Group 8-10; New Use on Citrus Fruits, Group 10-10; and a Tolerance without U.S. Registration for residues in/on Dried Tea” in docket ID number, EPA-HQ-OPP-2016-0013.

Based on the findings of the May 11, 2017 Federal Register document and the supporting documents, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to flonicamid residues.

Adequate enforcement methodology (FMC Method No. P-3561M, a liquid chromatography with tandem mass spectrometry (LC/MS/MS) method) is available to enforce the tolerance expression for flonicamid and its metabolites in or on plant commodities.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

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

The Codex has not established a MRL for flonicamid.

Comment: One anonymous comment on the notice of filing of petition 5E8428 was received. The commenter claims that flonicamid is a “toxic pesticide” and residues at any level in food commodities should not be allowed and requested that EPA deny setting tolerances for the petition-for new uses of flonicamid. The comment stated that the proposed flonicamid use would add to about 25,000 toxic chemicals currently in the environment and combine to create even more toxic chemical residues in food and drinking water further increasing harmful effects to humans and environment.

Agency response: The Agency recognizes that some individuals believe that pesticides should be banned completely. However, under the existing legal framework provided by FFDCA section 408, EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. In this instance, EPA has examined all the relevant and available data and concluded that the tolerances are safe. The commenter has not provided any information to support a conclusion by the Agency that the tolerances are not safe.

EPA is establishing a slightly higher tolerance for Pea and bean, succulent shelled, subgroup 6B at 7.0 ppm compared to the petitioner's request of a tolerance at 6.0 ppm. EPA's decision is based on the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures and available field trial data.

Therefore, tolerances are established for residues of flonicamid, N-(cyanomethyl)-4-(trifluoromethyl)-3-pyridinecarboxamide, and its metabolites, TFNA (4-trifluoromethylinicotinic acid), TFNA-AM (4-trifluoromethylnicotinamide), and TFNG, N-(4-trifluoromethylnicotinoyl)glycine, calculated as the stoichiometric equivalent of flonicamid, in or on Pea and bean, succulent shelled, subgroup 6B at 7.0 ppm; Pea and bean, dried shelled, except soybean, subgroup 6C at 3.0 ppm; and Vegetable, legume, edible podded, subgroup 6A at 4.0 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0218 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 5, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0218, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of May 19, 2016 (81 FR 31581) (FRL-9946-02), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F8455) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419. The petition requested that 40 CFR 180.481 be amended by establishing tolerances for residues of the herbicide prosulfuron, (N-[[(4-methoxy-6-methyl-1,3,5-triazin-2-yl)amino]carbonyl]-2-(3,3,3-trifluoropropyl)benzenesulfonamide), in or on grain, cereal, forage, fodder, and straw, group 16, fodder at 0.01 parts per million (ppm); grain, cereal, forage, fodder, and straw, group 16, forage at 0.10 ppm; grain, cereal, forage, fodder, and straw, group 16, hay at 0.20 ppm; grain, cereal, forage, fodder, and straw, group 16, straw at 0.02 ppm; and grain, cereal, group 15 at 0.01 ppm. That document referenced a summary of the petition prepared by Syngenta Crop Protection, LLC, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has revised the commodity definition from grain, cereal, forage, fodder, and straw, group 16, fodder to grain, cereal, forage, fodder, and straw, group 16, stover. The reason for this change is explained in Unit IV.C.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The most prevalent effect observed across species and study durations following administration of prosulfuron was decreased body weight observed in subchronic and chronic oral toxicity studies in rats and dogs. Additionally, subchronic and chronic oral toxicity studies in dogs showed decreased hematological parameters and hepatic toxicity. Evidence of neurotoxicity was observed in an acute neurotoxicity study but not in the subchronic neurotoxicity study. The neurological effects seen in the acute neurotoxicity study were transient, affecting primary sensorimotor and gait functions. In a developmental range-finding study in rabbits, ataxia, hypoactivity, and neuropathology were observed starting at doses of 150 mg/kg/day. However, these potential signs of neurotoxicity were not consistent with findings in the two main developmental studies in rabbits where there were no signs of neurotoxicity observed up to 200 mg/kg/day. Additionally, other repeated dosing studies in the rat, mouse, and dog did not show evidence of neurotoxicity. There is no evidence that prosulfuron is an immunotoxic chemical. Prosulfuron is classified as “Not Likely to Be Carcinogenic to Humans” based on the lack of evidence of carcinogenicity in mice and rats and no concern for mutagenicity. Prosulfuron has low acute toxicity by the oral, dermal, and inhalation routes of exposure, it is not considered an eye or skin irritant and it is not a skin sensitizer.

There was no evidence from the developmental and reproductive studies of increased susceptibility in rat or rabbit fetuses. In the first of two rabbit developmental studies, there were no signs of maternal or developmental toxicity. The second rabbit (tested using higher doses than the first) and the rat developmental studies showed dose-related increases in small fetuses and skeletal effects but these occurred at maternally toxic doses. In the reproductive study in rats, decreases in body weights were noted for both the adults of the P0 and P1 generations and for the F1 and F2 pups.

Specific information on the studies received and the nature of the adverse effects caused by prosulfuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Prosulfuron. Human Health Risk Assessment in Support of a Section 3 Petition for the Expansion of Crop Groups 15 and 16 to Include Permanent Tolerances for Residues of Prosulfuron in Rice, pages 9-12 in docket ID number EPA-HQ-OPP-2016-0218.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-andassessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for prosulfuron used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to prosulfuron, EPA considered exposure under the petitioned-for tolerances as well as all existing prosulfuron tolerances in 40 CFR 180.481. EPA assessed dietary exposures from prosulfuron in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for prosulfuron. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) Nationwide Health and Nutrition Examination Survey, What We Eat In America (NHANES/WWEIA) conducted from 2003-2008. As to residue levels in food, the acute dietary analysis was obtained from the Dietary Exposure Evaluation Model using the Food Commodity Intake Database (DEEM-FCID; version 3.18) and assumed 100 percent crop treated (PCT) and tolerance-level residues.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA NHANES/WWEIA conducted from 2003-2008. As to residue levels in food, the chronic dietary analysis was obtained from the DEEM-FCID; version 3.18 database and assumed 100 PCT and tolerance-level residues.

iii. Cancer. EPA has concluded that prosulfuron does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

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

2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for prosulfuron in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of prosulfuron. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticidescience-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Tier 1 Rice Model and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of prosulfuron for both acute exposures and chronic exposures for non-cancer assessments are estimated to be 37 parts per billion (ppb) for both surface water and ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute and chronic dietary risk assessment, the water concentration value of 37 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Prosulfuron is not registered for any specific use patterns that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found prosulfuron to share a common mechanism of toxicity with any other substances, and prosulfuron does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that prosulfuron does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulativeassessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. The prenatal and postnatal toxicity database for prosulfuron includes a developmental toxicity study in the rat, two developmental toxicity studies and a range-finding developmental study in the rabbit, and a 2-generation reproduction toxicity study in the rat. There was no evidence of increased susceptibility of fetuses or offspring in any of these studies.

There were no maternal or fetal effects observed at any dose in the first of two rabbit developmental toxicity studies. In the second rabbit study and in the rat developmental toxicity study, a dose-related increase in small fetuses and skeletal effects was observed, but only in the presence of maternal toxicity (decreased body weight gain in the rat study; and increases in abortions, decreases in food consumption and decreased mean body weight gain in the rabbit study).

In the developmental range-finding study in rabbits, ataxia, hypoactivity, and neuropathology were observed starting at doses of 150 mg/kg/day. However, these potential signs of neurotoxicity were not consistent with findings in the two main developmental studies in rabbits where there were no signs of neurotoxicity observed up to 200 mg/kg/day. In the 2-generation reproduction study in the rat, decreases in body weight were observed in the F1 and F2 offspring but these occurred at doses in which parental toxicity was also observed. There was no evidence of neurotoxicity to fetuses or offspring observed in any of the developmental or reproduction toxicity studies.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the Food Quality Protection Act Safety Factor (FQPA SF) were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for prosulfuron is complete.

ii. Although there was evidence of neurotoxicity in the acute neurotoxicity study and the range-finding developmental toxicity rabbit study, the selected endpoints are protective of these effects since they were seen at dose levels in excess of those where systemic toxicity occurred and at doses at least 15-fold higher than the no-observed adverse effect levels (NOAELs) selected for risk assessment. Concern is also low since no neurotoxicity was observed in the rest of the prosulfuron toxicological database, including the subchronic neurotoxicity study in rats.

iii. As discussed in Unit III.D.2., there is no evidence that prosulfuron results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to prosulfuron in drinking water. These assessments will not underestimate the exposure and risks posed by prosulfuron.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to prosulfuron will occupy 6.4% of the aPAD for all infants (< 1 years old), the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to prosulfuron from food and water will utilize 3.9% of the cPAD for all infants (< 1 years old), the population group receiving the greatest exposure. There are no residential uses for prosulfuron.

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

A short-term adverse effect was identified; however, prosulfuron is not registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for prosulfuron.

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

An intermediate-term adverse effect was identified; however, prosulfuron is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for prosulfuron.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, prosulfuron is not expected to pose a cancer risk to humans.

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

Adequate enforcement methodology, Method AG-590C (a high performance liquid chromatography method with column switching and ultraviolet (UV) detection), is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

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

The Codex has not established a MRL for prosulfuron.

EPA has revised the commodity definition from “grain, cereal, forage, fodder, and straw, group 16, fodder” to “grain, cereal, forage, fodder, and straw, group 16, stover” to be consistent with the general food and feed commodity vocabulary EPA uses for tolerances and exemptions.

Therefore, tolerances are established for residues of prosulfuron, (N-[[(4-methoxy-6-methyl-1,3,5-triazin-2-yl)amino]carbonyl]-2-(3,3,3-trifluoropropyl)benzenesulfonamide), including its metabolites and degradates, in or on grain, cereal, forage, fodder, and straw, group 16, stover at 0.01 ppm; grain, cereal, forage, fodder, and straw, group 16, forage at 0.10 ppm; grain, cereal, forage, fodder, and straw, group 16, hay at 0.20 ppm; grain, cereal, forage, fodder, and straw, group 16, straw at 0.02 ppm; and grain, cereal, group 15 at 0.01 ppm.

In addition, EPA has revised the tolerance expression to clarify (1) that, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of prosulfuron not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression. EPA has determined that it is reasonable to make this change final without prior proposal and opportunity for comment, because public comment is not necessary, in that the change has no substantive effect on the tolerance, but rather is merely intended to clarify the existing tolerance expression.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

I. Background a. Executive Summary of Final Rule

This final rule implements a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes (as defined in 49 U.S.C. 24102), and operated by Amtrak on the date of enactment of the Passenger Rail Reform and Investment Act of 2015 (title XI of the Fixing America's Surface Transportation (FAST) Act, Pub. L. 114-94, 129 Stat. 1312, 1660-1664 (2015)). The final rule establishes a petition, notification, and bid process by which FRA will evaluate, and ultimately select, bids to provide passenger rail service over particular long-distance routes. The final rule also, among other things, addresses FRA's execution of a contract with the winning bidder awarding the right and obligation to provide intercity passenger rail service over the route, along with an operating subsidy, subject to the 49 U.S.C. 24405 grant conditions and such performance standards as the Secretary of Transportation (Secretary) may require.

By notice of proposed rulemaking (NPRM) published on June 22, 2016 (81 FR 40624), FRA proposed a competitive passenger rail service pilot program in response to a statutory mandate in section 11307 of the FAST Act. In response to a request for a public hearing, FRA held a public hearing on September 7, 2016. FRA also extended the comment period for the NPRM to October 7, 2016 to allow time for interested parties to submit written comments in response to information provided at the public hearing.

FRA received comments from the American Association of Private Railroad Car Owners, the Association of Independent Passenger Rail Operators, the National Association of Railroad Passengers, Herzog Transit Services, Corridor Capital, Iowa Pacific Holdings, Florida East Coast Industries, Erie Lackawanna Railroad, the North Carolina Department of Transportation, the National Railroad Passenger Corporation (Amtrak), the Brotherhood of Maintenance of Way Employees Division/International Brotherhood of Teamsters, the Brotherhood of Railroad Signalmen, the International Association of Sheet Metal, Air, Rail, and Transportation Workers/Mechanical Division, the Transportation Trades Department of the American Federation of Labor-Congress of Industrial Organizations, and one individual.

Comments are addressed in the preamble. Some comments were generally supportive of the NPRM, and other comments were generally unsupportive of the NPRM.

The final rule establishes deadlines for filing petitions, filing bids, and the execution of contract(s) with winning bidders.

As to the filing of petitions, § 269.7(b) of the final rule requires the filing of a petition with FRA no later than 180 days after the effective date of the final rule implementing the pilot program (petition window). In the NPRM, FRA proposed a 60 day petition window from the publication of the final rule. Several commenters stated the proposed 60 day petition window should be extended to 120 or 180 days. Other commenters stated the petition window should remain 60 days. Still other commenters stated the petition window should be eliminated and the pilot program should remain available indefinitely.

After careful consideration of these comments, the final rule establishes a 180 day petition window, balancing the need for sufficient time to produce quality petitions and bids with the desire to encourage competition and efficiently use Federal and Amtrak resources. This extended time period will ensure an eligible petitioner has an adequate amount of time to file a petition. It is important to also note the final rule establishes the effective date of the final rule as the trigger for the 180 day period (rather than the date the final rule is published, as proposed in the NPRM). This change effectively gives eligible petitioners 60 more days (in addition to the 180 days) to file a petition. The final rule does not adopt the suggestion of some commenters that the pilot program be “evergreen.” First, the FAST Act does not require the pilot program to remain available indefinitely. Second, an evergreen pilot program may unduly burden the FRA and Amtrak by imposing an indefinite regulatory burden to maintain program readiness. Finally, FRA believes competition is best fostered by a limited duration petition window allowing FRA to evaluate multiple bidders competing for the same route.

When an eligible petitioner files a petition, under § 269.9(a) of the final rule, FRA will notify the petitioner and Amtrak of receipt of the petition, and publish a notice of receipt in the Federal Register, not later than 30 days after receipt. See 49 U.S.C. 24711(b)(1)(B)(i).

Section 269.9(b) of the final rule addresses the filing of bids. This section requires both the bidder and Amtrak, if Amtrak so chooses, to submit complete bids to FRA not later than 120 days after FRA publishes a notice of receipt in the Federal Register under § 269.9(a).

As to the award and execution of contracts with winning bidders (who are not or do not include Amtrak), § 269.11(b)(1) of the final rule first requires FRA to publish a notice for public comment for 30 days in the Federal Register announcing the selection. Section 269.13(a) then requires FRA to execute a contract with a winning bidder not later than 270 days after the § 269.9(b) bid deadline.

A commenter stated FRA should notify Amtrak of the date when the winning bidder's service will replace Amtrak's service on the affected route. The commenter recommended requiring a minimum 210-day notice period to allow Amtrak sufficient time to notify impacted employees, suppliers, and passengers. As discussed, § 269.11(b)(1), consistent with the requirements of the FAST Act, requires FRA to publish a notice identifying the winning bidder and the route, among other things, for public comment for 30 days.

In addition, the FAST Act, and this final rule, requires FRA to execute a contract with a winning bidder not later than 270 days after the bid deadline § 269.9 establishes. The NPRM did not specifically address when a winning bidder would assume operation of a route. The precise timing of a new operation will depend upon the winning bidder's readiness to assume operations, the availability and amount of an operating subsidy, as well as the resolution of logistics associated with a change in operator. It may be most appropriate for the new operator to begin operations at the beginning of a new Federal fiscal year, which would facilitate both the payment of the operating subsidy, if one is requested and available, and FRA's efficient administration of the pilot program. FRA will work with the winning bidder and Amtrak to identify a safe, timely, and reasonable date on which the winning bidder will assume operations.

The FAST Act requires the Secretary to award an operating subsidy to a winning bidder that is not or does not include Amtrak (although a bidder may elect to not receive an operating subsidy). 49 U.S.C. 24711(b)(1)(E)(ii). Specifically, the operating subsidy, as determined by the Secretary, is for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year the petition was received, adjusted for inflation, and any subsequent years under the same calculation, adjusted for inflation.

In addition, the FAST Act requires FRA to provide to Amtrak an appropriate portion of the applicable appropriations to cover any cost directly attributable to the termination of Amtrak service on the route and any indirect costs to Amtrak imposed on other Amtrak routes as a result of losing service on the route operated by the winning bidder. 49 U.S.C. 24711(e)(2). Any amount FRA provides to Amtrak under the prior sentence would not be deducted from, or have any effect on, the operating subsidy 49 U.S.C. 24711(b)(1)(E)(ii) requires.

Consistent with the requirements of the FAST Act, § 269.13(b)(1) of the NPRM required FRA to award to a winning bidder that is not or does not include Amtrak an operating subsidy “as determined by FRA” for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year in which the petition was received, adjusted for inflation.

Commenters requested more clarity on FRA's determination of the operating subsidy amount. Because the operating portion of FRA's annual grant to Amtrak's National Network is the authorized source of funding for the operating subsidy, only cost categories associated with the operating portion of Amtrak's grant are eligible costs for the operating subsidy under this pilot program. Consequently, § 269.13(b)(1) of the final rule states the operating subsidy is based on Amtrak's publically-reported fully-allocated operating costs of the route for the prior fiscal year, excluding costs related to Other Postretirement Employee Benefits (OPEB's), Amtrak Performance Tracking System (APT) Asset Allocations, Project Related Costs, and Amtrak Office of Inspector General activities. This data is publicly available on Amtrak's Web site in a comprehensive Monthly Performance Report (the final audited September report contains information for the entire fiscal year). Amtrak also reports this data to Congress and the Secretary in the monthly National Railroad Passenger Corporation Progress Report.

To avoid confusion, FRA will post, and update as necessary, the calculation and maximum subsidy amount available for each route based on the most recent full fiscal year data available on its Web site. For subsequent fiscal years, FRA will award the same operating subsidy, adjusted for inflation, again subject to the availability of Congressional appropriations. FRA will also provide the operating subsidy calculations for each long-distance route on the FRA Web site for reference by eligible petitioners.

One commenter questioned the accuracy of Amtrak's fully-allocated route costs, favoring instead reporting of variable costs by route at a detailed account level. FRA disagrees. Fully allocated costs are a component of the cost accounting methodology formed by the creation of APT, a statutorily mandated system developed by FRA, in close collaboration with Amtrak. Amtrak has used APT effectively since 2009 to assign costs at a route level. While an untested, non-public measure may provide different detail, the utility of publically available data that best aligns with Amtrak's grant is most appropriate here.

Commenters stated FRA should ensure it is using consistent, accurate financial data and that bidders should have access to actual, fully-allocated route costs for the five most recent years Amtrak operated the service. Amtrak has included the publicly reported fully-allocated operating costs in the Monthly Performance Report for at least the past five years, though reports are only posted for one year following publication. Using archived copies of these reports, FRA will post on its Web site Amtrak's fully allocated operating loss for each Long Distance route since FY2012.

Commenters also stated FRA should provide more detail about the costs comprising the total operating subsidy, including route specific costs. Another commenter, on the other hand, objected to the disclosure of Amtrak's route specific information. FRA declines to provide the more detail requested. FRA notes that the summary financial results reported in Amtrak's Monthly Performance Reports list actual costs on a system-wide basis across various revenue and expense categories. In addition, FRA believes a bidder should base its costs on its own needs and business case, rather than Amtrak route specific information.

Some commenters suggested FRA include interest and depreciation costs in the operating subsidy to account for equipment related expenses associated with operating the service. Another commenter stated the operating subsidy should exclude capital costs, depreciation, and other non-cash costs. The final rule does not include depreciation and interest costs in the formulation of the operating subsidy. This approach is consistent with the operating portions of FRA's annual grants to Amtrak for the Northeast Corridor and National Network accounts, which do not include Amtrak rolling stock depreciation or interest-incurring debt.

A commenter stated FRA should ensure any award to a winning bidder is consistent with the objective of reducing Federal funding requirements for long distance routes. FRA will make judicious operating subsidy determinations to ensure the efficient use of Federal funds.

A commenter also stated FRA should address how it will reimburse costs that non-Amtrak service sponsors may incur. FRA is not authorized under the FAST Act to directly reimburse sponsors of Amtrak service. As discussed, the FAST Act directs the Secretary to provide Amtrak an appropriate portion of the applicable appropriations to cover any cost directly attributable to the termination of Amtrak service on the route and any indirect costs to Amtrak imposed on other Amtrak routes as a result of losing service on the route operated by the winning bidder. See 49 U.S.C. 24711(e)(2).

A commenter sought clarity regarding the basis upon which FRA may not provide funding to a winning bidder. FRA is not authorized to provide funding in excess of appropriated levels. The FAST Act authorizes the Secretary to fund the operating subsidy by withholding such sums as are necessary from the amount appropriated to the Secretary for the use of Amtrak for activities associated with Amtrak's National Network. FAST Act sec. 11101(e). However, if Congress does not appropriate funds in a manner so as to allow the Secretary to pay an operating subsidy under this pilot program, then the Secretary cannot award an operating subsidy to a winning bidder. In other words, the award of any operating subsidy to a winning bidder is subject to the availability of funding. Accordingly, the Secretary's contract with a winning bidder will not award an operating subsidy unless the award is authorized by both the FAST Act and the applicable appropriations act. In addition, the Secretary will award the operating subsidy to the winning bidder annually and, again, only as authorized by the FAST Act and the applicable appropriations act (i.e., the Secretary will not award all four years of the operating subsidy at one time).

A commenter expressed concern that, in the event Congress reduces Amtrak appropriations, a winning bidder may receive disproportionately less subsidy as compared to the services remaining with Amtrak. Subject to the availability of funding for long distance services, FRA will award an operating subsidy to a winning bidder that is the same amount, adjusted for inflation, throughout the term of the contract.

Under the FAST Act, an entity may only be an eligible petitioner for this pilot program if it owns the relevant rail infrastructure or has a “written agreement” with the relevant rail infrastructure owner (in addition to meeting the other eligible petitioner requirements discussed elsewhere in this preamble). 49 U.S.C. 24711(b)(3). The FAST Act also requires a winning bidder who does not own the relevant infrastructure to enter into a “written agreement governing access issues” with the owners of such infrastructure. 49 U.S.C. 24711(b)(5).

Section 269.9(b)(2)(i) of the NPRM required a bid to include any applicable agreement(s) necessary for the operation of passenger service over right-of-way on the route that is not owned by the bidder. The NPRM did not address the nature of the “written agreement” necessary for an entity to submit a petition under § 269.7(b).

Because a “written agreement” is an eligibility requirement for many potential petitioners, § 269.7(b)(4) of the final rule requires an eligible petitioner to include, in its petition, agreements with all entities that own or control infrastructure on the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation. However, these written agreements are not required to completely address infrastructure access; rather, they must demonstrate the infrastructure owner's support for the petition.

In addition, like the NPRM, § 269.9(b)(2)(i) of the final rule then requires a bidder to submit, in its bid package, executed agreement(s) necessary for the operation of passenger service over right-of-way on the route that is not owned by the bidder.

Several comments sought further clarity on the meaning of the term “written agreement.” One commenter stated a petitioner should submit written agreements with each rail carrier that owns or controls any infrastructure along the route, with their petition filed under § 269.7(b), and such agreements should address the petitioner's ability to access the infrastructure necessary for the operation of the petitioned route. Other commenters stated that negotiating the detailed terms of such access agreements take a long time, and instead proposed that, when submitting a petition, a petitioner should only need to submit a written agreement in which the infrastructure owners express a willingness to enter into a good faith discussion with the bidder.

FRA generally agrees with the latter commenters. Specifically, to ensure the efficient use of FRA and Amtrak resources, and recognizing the challenges executing agreements that completely address infrastructure access, as discussed, the final rule requires a petition to include agreements with all entities that own or control infrastructure on the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation. As described, these agreements are not required to completely address infrastructure access; rather, they must demonstrate the infrastructure owner's support for the petition. As noted, the final rule also requires an eligible petitioner to submit, as part of the bid package, executed agreement(s) necessary for the operation of passenger service over right-of-way on the route that is not owned by the eligible petitioner.

Some commenters expressed concern Amtrak, as an owner of infrastructure on most of the long distance routes, could refuse to enter into access agreements with eligible petitioners. However, in the event of such a dispute, the statute and the final rule make clear the Surface Transportation Board (STB) may require Amtrak to provide access to Amtrak facilities if such access is necessary to operate the pilot route. 49 U.S.C. 24711(g). Access to Amtrak-owned facilities, among other things, is discussed elsewhere in this preamble.

Lastly, several commenters stated an eligible petitioner could develop an operating plan that contracts with Amtrak to provide operating crews and uses Amtrak's existing access agreement, as long as the infrastructure owners agreed with the operating plan. FRA disagrees. First, private partnerships between Amtrak and third parties may of course occur outside of this pilot program, and, are, in fact encouraged by section 216 of PRIIA and 49 U.S.C. 24101. Second, the FAST Act does not authorize an eligible petitioner to use Amtrak's right to access infrastructure owned by a third party. See 49 U.S.C. 11307(b)(5) (requiring a winning bidder to enter into a written agreement governing access with the relevant infrastructure owners); 49 U.S.C. 11307(b)(3) (defining a petitioner as eligible where it owns the infrastructure or has a written agreement with a rail carrier that owns the infrastructure); and 49 U.S.C. 11307(j) (stating that nothing in section 11307 shall affect Amtrak's access rights to railroad rights-of-way and facilities). Finally, the FAST Act states the requirement that the Secretary award an operating subsidy to a winning bidder “shall not apply to a winning bidder that is or includes Amtrak.” 49 U.S.C. 11307(b)(2). In other words, a bidder who is partnering with Amtrak to provide a service under the pilot program would not be entitled to an operating subsidy award under the pilot program.

Section 269.9(b)(1) of the final rule, in part, requires a bidder to provide FRA with sufficient information to evaluate the level of service described in the bid. In addition, § 269.13(b)(4) requires a winning bidder to provide intercity passenger rail transportation over the route that is no less frequent, nor over a shorter distance, than Amtrak provided on the route.

One commenter stated the final rule should provide that, upon request, the Secretary would make available a detailed and specific definition of Amtrak's level of service for any route subject to the pilot program. FRA disagrees. As described, the final rule requires, at minimum, a winning bidder to provide a level of service that is no less frequent, nor over a shorter distance than Amtrak provided on the route. See 49 CFR 269.13(b)(4). The frequency and distance of Amtrak's long-distance routes is publically available. It is important to note, as described in § 269.9(b)(1), beyond the frequency and distance requirements, FRA's bid evaluations will take into account all aspects of service described in the bid.

Several commenters stated the final rule should allow a bidder to operate alternate service alignments between the endpoints of a route. Similarly, a commenter stated the final rule should allow a bidder to vary the schedule and services of the particular train. One other commenter, on the other hand, stated a winning bidder must serve all of the same stations Amtrak currently serves on the route. The final rule does not prohibit a bidder from proposing to operate an alternate alignment between the endpoints of a route. However, a bid proposing the relocation, elimination, or addition of a station at which the service will stop should be accompanied by evidence of significant support from the communities impacted by such changes so FRA may understand and evaluate the proposed service.

A commenter stated FRA should favorably weight bids that maintain existing connections with other intercity passenger trains and buses to promote the national passenger train and connecting intercity bus network. A commenter also stated the final rule should encourage innovative ideas, including enhanced food and beverage service, and improved connectivity and amenities. As stated, FRA's bid evaluations will take into account all aspects of service described in the bid. 49 CFR 269.9(b)(1).

Finally, one commenter stated the final rule should expand the pilot program to discontinued Amtrak long distance routes. However, the FAST Act limits the pilot program to the long distance routes defined in 49 U.S.C. 24102 and operated by Amtrak on the date of enactment of the FAST Act. See 49 U.S.C. 24711(a).

The FAST Act requires a winning bidder to, at a minimum, meet the performance “required of or achieved by Amtrak on the applicable route during the last fiscal year” and subjects any award to a winning bidder “to such performance standards.” 49 U.S.C. 24711(b)(1)(E)(i) and (b)(4). In addition, the FAST Act authorizes the Secretary to require performance standards above that achieved by Amtrak. 49 U.S.C. 24711(b)(1)(E)(i). The final rule requires bidders to describe how the passenger rail service would meet or exceed the performance required of or achieved by Amtrak on the applicable route during the last fiscal year, and states that, at a minimum, the description must include, for each Federal fiscal year fully or partially covered by the bid, a projection of the route's expected Passenger Miles per Train Mile, End-Point and All Stations On-Time Performance, Host Railroad and Operator Responsible Delays per 10,000 train miles, Percentage of Passenger Trips to/from Underserved Communities, Service Interruptions per 10,000 Train Miles due to Equipment-Related Problems, and customer service quality. 49 CFR 269.9(b)(9). Likewise, the final rule conditions the operating subsidy rights upon the winning bidder's compliance with performance standards FRA may require, but which, at a minimum, must meet or exceed the performance required of or achieved by Amtrak on the applicable route during the fiscal year immediately preceding the year the bid is submitted. 49 CFR 269.13(b)(5).

Commenters sought additional clarity on the performance standards and, in particular, how FRA would evaluate the performance of a winning bidder. To determine whether a winning bidder has met or exceeded the performance achieved by Amtrak on the applicable route during the last fiscal year, as required by the FAST Act, FRA will require a winning bidder to report the performance standards discussed in the previous paragraph to FRA on a quarterly basis. These performance categories are available publically in the Quarterly Report on the Performance and Service Quality of Intercity Passenger Train Operations available on FRA's Web site. Additionally, a winning bidder must also provide a monthly ridership report to FRA. Finally, a bidder must explain in its bid submission how it will achieve and report on these performance standards.

A commenter stated FRA should define, or otherwise make available, the Amtrak performance standards achieved on each long-distance route. This data is publicly available on FRA's Web site in the Quarterly Reports on the Performance and Service Quality of Intercity Passenger Train Operations.

One commenter stated the final rule should impose performance standards on Amtrak if it submits a bid. Another commenter stated, on the other hand, FRA is not authorized to impose such standards on Amtrak. The FAST Act does not require the imposition of performance standards on Amtrak. However, if Amtrak submits a bid and is selected, then Amtrak should comply with the performance standards described in the bid.

Lastly, a commenter stated the final rule should require Amtrak to identify future savings or new revenues if their counterbid is lower than Amtrak's current route costs. FRA does not believe the final rule needs to specifically require Amtrak to produce such information. Section 269.9(b) requires bidders and Amtrak to submit bids containing a financial plan, among other requirements, which enables FRA to fully evaluate the bids. Furthermore, if FRA does not receive sufficient information, FRA may request supplemental information from the bidder and/or Amtrak under § 269.9(c).

Section 24711(c) of the FAST Act requires Amtrak, if necessary to carry out the purposes of the pilot program, to provide access to the “Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded routes to the eligible petitioner awarded a contract.” Section 24711(g) further provides, in the event Amtrak and the winning bidder cannot agree upon the terms of such access, either party may petition the STB to determine “whether access to Amtrak's facility or equipment, or the provisions of services by Amtrak is necessary . . . and whether the operation of Amtrak's other services will not be unreasonably impaired by such access.” Section 24711(g) goes on to provide, if the STB determines such access is necessary and Amtrak's other services will not be unreasonably impaired, then the STB must issue an order requiring Amtrak “to provide the applicable facilities, equipment, and services . . . and determine[] reasonable compensation, liability, and other terms for the use of the facilities and equipment and the provision of the services.”

The final rule provides, consistent with the FAST Act and the NPRM, if an award is made to a bidder other than Amtrak, Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded route(s) to the bidder. 49 CFR 269.15(a). For additional clarity, the final rule added a sentence stating that, if Amtrak and the eligible petitioner awarded a route cannot agree on the terms of access, then either party may petition the STB under 49 U.S.C. 24711(g). 49 CFR 269.15(a).

Commenters sought clarity regarding the meaning of the term “facilities.” One commenter stated “facilities” should include coach yards, repair shops, and Amtrak-owned track. FRA understands the term “facilities” to include Amtrak-owned coach yards, repair shops, and track. A commenter also stated the final rule should require Amtrak to provide access to “Amtrak controlled” track. However, the FAST Act only authorizes access for “Amtrak-owned” facilities. 49 U.S.C. 24711(c)(1).

Several commenters stated the final rule should require Amtrak to provide access to Amtrak-owned rolling stock. As stated, section 24711(c)(1) of the FAST Act specifically requires Amtrak to provide access to the “Amtrak-owned reservation system, stations, and facilities,” but it does not reference rolling stock. However, section 24711(g) states the STB may adjudicate disputes regarding whether Amtrak should be required to provide services or equipment. As such, either party may petition the STB for a determination about the necessity of access to Amtrak-owned equipment (to include rolling stock), among other things.

At least one commenter stated Amtrak's statutory right to access track is a “facility” and, therefore, Amtrak should be required to provide its access rights to a winning bidder. Another commenter stated FRA should invoke Amtrak's statutory right to access track on behalf of a winning bidder. FRA disagrees with both comments. Amtrak's right to access track is not transferrable unless specifically authorized by law. See Application of Nat'l R. Passenger Corp. Under 49 U.S.C. 24308(a)—Springfield Terminal R. Co., Boston & M. Corp. and Portland Terminal Co., 3 S.T.B. 157 (1998) (stating the “access rights that the Act allows us to grant to Amtrak belong only to Amtrak and may not be transferred to a third party `successor or assign' unless the Act or some other provision of law specifically provides otherwise.”). Here, section 24711(j) of the FAST Act states nothing in the pilot program “shall affect Amtrak's access rights to railroad rights-of-way and facilities.”

Similarly, a commenter stated the final rule should allow an eligible petitioner to use Amtrak train and engine crews to access track via the existing Amtrak access agreement with the host railroad. A commenter also stated Amtrak should be required to provide Amtrak train crews to a bidder, as it would constitute a “provision of services” allowed under section 24711(g)(1)(A) of the FAST Act. First, as discussed, Amtrak's right to access track may not be transferred under this pilot program. Further, a bidder who is partnering with Amtrak to provide a service under the pilot program would not be entitled to an operating subsidy award under the pilot program. The FAST Act makes clear that an operating subsidy is only available to a winning bidder who is not or does not include Amtrak. 49 U.S.C. 24711(b)(2).

A commenter stated Amtrak need only provide access if FRA determines the access is necessary. However, section 24711(g) of the FAST Act states the STB, not the FRA, is responsible for determining whether access is necessary.

Some commenters stated the cost allocation policy developed under section 209 of the Passenger Rail Investment and Improvement Act of 2008 should be used to calculate cost for the use of Amtrak's assets. Another commenter stated FRA, not other bidders, should request from Amtrak the cost of providing access to specific facilities and services a bidder wants Amtrak to provide. However, neither approach is required by the FAST Act. Rather, the parties must agree on cost and, if they cannot, either party may petition the STB for a determination. See 49 U.S.C. 24711(g) (stating that, in the event of a dispute, the STB “determines reasonable compensation, liability, and other terms,” among other things). It is the bidder's sole responsibility to initiate the request to Amtrak to provide the access, to carry out any resulting negotiations, and to determine impacts on the bid.

A commenter stated the rule should require FRA to publish Amtrak's costs to provide access to its reservation system, stations, and facilities, and FRA should condition Amtrak's receipt of Federal operating funds on Amtrak's participation. Similarly, a commenter stated FRA should set forth minimum conditions of cooperation, along with reasonable ranges of costs for the joint use of facilities and services. Another commenter stated FRA should articulate clear definitions, prior to the submittal of any bids, of the costs for Amtrak to operate facilities or equipment. Lastly, a commenter suggested there should be a set rate for Amtrak equipment used by a winning bidder. FRA disagrees and does not believe these approaches are necessary or consistent with the FAST Act. As described above, section 24711(g) provides, in the event Amtrak and the winning bidder cannot agree upon the terms of access, either party may petition the STB to resolve the dispute.

A commenter stated that, if a dispute between Amtrak and a bidder is submitted to the STB for resolution, then a bidder may use the Amtrak-owned facilities during the period of time the dispute is with the STB. FRA disagrees. Indeed, the dispute may involve whether the bidder is in fact entitled to access the facilities at issue. Further, a bidder should not need to access the facilities because the terms of access would have to be resolved in advance of bidder operations.

A commenter also stated the final rule should require Amtrak to provide access to its data relating to operations, costs, facilities, ridership and other information to enable a bidder to develop an informed business plan and proposal. The FAST Act does not authorize this approach. As discussed, the bidder is responsible for collecting the information necessary to prepare their business plan and proposal.

The FAST Act subjects winning bidders to the grant conditions in 49 U.S.C. 24405. See 49 U.S.C. 24711(c)(3) (“If the Secretary awards the right and obligation to provide intercity rail passenger transportation over a route described in this section to an eligible petitioner . . . the winning bidder . . . shall be subject to the grant conditions under section 24405.”).

The NPRM and this final rule likewise subject winning bidders to these grant conditions. See 49 CFR 269.13(b)(6) (“[T]he contract between FRA and a winning bidder that is not or does not include Amtrak must . . . [s]ubject the winning bidder to the grant conditions established by 49 U.S.C. 24405.”). Section 24405(c), among other things, states the Secretary shall require, and “the applicant agrees to comply with . . . the protective arrangements that are equivalent to the protective arrangements established under section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976” (4R Act). 49 U.S.C. 24405(c)(2)(B). The protective arrangements established under the 4R Act are set forth in a Secretary of Labor letter and appendix dated July 6, 1976.

Several commenters sought clarification about the 49 U.S.C. 24405 grant condition concerning employee protections. One commenter stated the 4R Act employee protections should not apply to this pilot program. FRA disagrees. The FAST Act subjects a winning bidder to the grant conditions of section 24405, which include the 4R Act equivalent employee protections. See 49 U.S.C. 24711(c)(3).

Several commenters stated the FRA should adopt employee protections equivalent to those established under the 4R Act but adjusted to fit the pilot program, and should issue guidance on the adjusted protections. FRA declines to use this rulemaking to adopt employee protections equivalent to the almost forty-year old 4R Act employee protections set forth by the Secretary of Labor for the purpose of resolving imprecisions in the application of those protections to this pilot program. The FAST Act subjects winning bidders, some of whom may not be railroads, to the grant conditions under section 24405. In so doing, the FAST Act recognizes the possibility that a non-railroad winning bidder may directly provide the 4R Act equivalent employee protections.

A commenter also stated FRA should issue guidance on a winning bidder's responsibility to employees under the FAST Act, while also stating such employee costs should be included in any petition filed with FRA under the pilot program. If needed, FRA may issue pilot program guidance. However, FRA disagrees with the suggestion to include employee costs in the petition. The petition requirements under § 269.7 require basic information from eligible petitioners; it is premature to require detailed cost information in the petition. It is in the bid where an eligible petitioner provides FRA with the information necessary to evaluate a bid, including the submission of a required staffing plan that addresses the terms of work for prospective and current employees for the proposed service, among other things. See § 269.9(b)(5).

Commenters also stated the NPRM did not indicate how FRA would apply the employee protections. FRA disagrees. Consistent with the FAST Act requirement, the NPRM and the final rule require compliance with section 24405 in the contract between FRA and a winning bidder. See 49 CFR 269.13(b)(6). FRA declines to adopt the suggestion of some commenters to require a winning bidder to directly provide the 4R Act equivalent employee protections. As discussed, a winning bidder must comply with section 24405, which includes the 4R Act equivalent employee protections. However, the FAST Act does not require this obligation to take the form of an agreement directly between the winning bidder and the relevant union. Although that approach is certainly permissible, a winning bidder may also by agreement bestow the obligation to provide the employee protections on another appropriate entity (such as the applicable railroad). In other words, a winning bidder may comply with the 4R Act equivalent employee protections requirement of section 24405 directly or by agreement.

Lastly, one commenter suggested costs associated with providing the 4R Act equivalent employee protections should not be deducted from the operating subsidy awarded to a winning bidder. The 4R Act equivalent employee protection costs are the responsibility of a winning bidder that is not or does not include Amtrak and do not impact the calculation of the operating subsidy.

This section provides that the final rule carries out the statutory mandate in 49 U.S.C. 24711 requiring FRA, on behalf of the Secretary, to implement a pilot program to competitively select eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102, and operated by Amtrak on the date of enactment of the FAST Act.

A commenter stated an eligible petitioner should be able to decide the route(s) on which they bid and should be able to bid on inactive routes. The pilot program does not apply to inactive routes. The FAST Act limits the pilot program to the long-distance routes, as defined in 49 U.S.C. 24102, operated by Amtrak on the date of enactment of the FAST Act. 49 U.S.C. 24711(a).

A commenter also stated FRA should take primary responsibility in any contract with a winning bidder to “launch” the service. FRA disagrees. The FAST Act directs FRA to implement the pilot program for the competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three-long distance routes. The FAST Act does not require the FRA to take primary responsibility for a winning bidder's execution of the service.

Paragraph (a) of this section provides the pilot program is not available to more than three Amtrak long-distance routes, as defined in 49 U.S.C. 24102. This paragraph is based on the statutory directive in 49 U.S.C. 24711(a).

Paragraph (b) of this section provides that any eligible petitioner awarded a contract to provide passenger rail service under the pilot program can only provide such service for a period not to exceed four years from the date the winning bidder commenced service and, at FRA's discretion on behalf of the Secretary, FRA may renew such service for one additional operation period of four years. This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(A).

A commenter stated FRA should address the transition of service from a successful winning bidder back to Amtrak. Although there may be challenges that arise in such a situation, the FAST Act does not require FRA to address this issue in the rulemaking, nor is it prudent in this rulemaking to attempt to address possible outcomes that may occur many years from now.

Commenters also stated the length of the contract should be longer than four years, for various reasons. However, the FAST Act requires one four year term, and allows for one four year renewal term at the discretion of the Secretary.

This section contains the definitions for the final rule. This section defines the following terms: Act; Administrator; Amtrak; Eligible petitioner; File and Filed; Financial plan; FRA; Operating plan; and Long-distance route.

This section defines “eligible petitioner” to mean: A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure; a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation; or a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation.

A commenter stated the final rule should amend the definition of the term “eligible petitioner” to make clear it is not necessary for a petitioner to obtain a written agreement with Amtrak for Amtrak-owned infrastructure prior to submitting a petition. However, the definition used in the final rule is taken directly from the FAST Act. 49 U.S.C. 24711(b)(3). With that said, Amtrak is required to provide access to Amtrak-owned facilities, among other things. 49 U.S.C. 24711(c)(1). As such, FRA will take both of these FAST Act directives into account when reviewing petitions received under this program.

This section defines “financial plan” to mean a plan that contains, for each Federal fiscal year fully or partially covered by the bid: An annual projection of the revenues, expenses, capital expenditure requirements, and cash flows (from operating activities, investing activities, and financing activities, showing sources and uses of funds, including the operating subsidy amount) attributable to the route; and a statement of the assumptions underlying the financial plan's contents.

In addition, this section defines “operating plan” to mean a plan that contains, for each Federal fiscal year fully or partially covered by the bid: A complete description of the service planned to be offered, including the train schedules, frequencies, equipment consists, fare structures, and such amenities as sleeping cars and food service provisions; station locations; hours of operation; provisions for accommodating the traveling public, including proposed arrangements for stations shared with other routes; expected ridership; passenger-miles; revenues by class of service between each city-pair proposed to be served; connectivity with other intercity transportation services; compliance with applicable Service Outcome Agreements, and a statement of the assumptions underlying the operating plan's contents. The final rule added “connectivity with other intercity transportation services” and “compliance with applicable Service Outcome Agreements” in response to comments. The final rule requires bidders to include a financial plan and an operating plan—as those terms are defined here—in their bids. These definitions ensure that bids contain sufficient information for evaluation.

A commenter stated the final rule should specifically state that, for purposes of the operating plan, a bidder may assume access to Amtrak facilities and stations. This revision is not necessary. The final rule requires a bidder to describe the assumptions underlying the operating plan's contents. And, as discussed elsewhere in this preamble, the final rule states that Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded route(s) to the bidder.

This section also defines “long-distance route” to mean those routes described in 49 U.S.C. 24102(5) and operated by Amtrak on the date the FAST Act was enacted. This definition is based on the statutory directive in 49 U.S.C. 24711(a).

Paragraph (a) of this section provides an eligible petitioner may petition FRA to provide intercity passenger rail transportation over a long-distance route in lieu of Amtrak for a period of time consistent with the time limitations described in § 269.3(c). This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(A).

Paragraph (b) of this section provides a petition submitted to FRA under this rule must: Be filed with FRA no later than 180 days after the effective date of the competitive passenger rail service pilot program final rule; describe the petition as a “Petition to Provide Passenger Rail Service under 49 CFR part 269”; describe the long-distance route or routes over which the petitioner wants to provide intercity passenger rail transportation and the Amtrak service the petitioner wants to replace; and, if applicable, provide an executed copy of all written agreements with all entities that own infrastructure on the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation. This paragraph is intended to ensure a petition provides clear notice to FRA and the petitioner is statutorily eligible to participate in the program.

Paragraph (a) of this section provides that FRA would notify the eligible petitioner and Amtrak of receipt of a petition filed with FRA by publishing a notice of receipt in the Federal Register not later than 30 days after FRA receives a petition. This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(B)(i).

Paragraph (b) of this section describes the bid requirements, including that a bid must be filed with FRA no later than 120 days after FRA publishes the notice of receipt in the Federal Register under § 269.9(a). Paragraph (b) further provides the detailed information such bids must include. This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(C).

A commenter stated a bidder should not be constrained due to their prior experience with passenger rail service. The final rule's bid requirements apply to all bidders and Amtrak, regardless of experience in passenger rail service.

A commenter also stated the final rule should require a bidder to provide written documentation that any state(s) providing funding for a route concur with a bid to provide service over the route. Another commenter, on the other hand, disagreed and stated FRA should be responsible for obtaining concurrence from a state providing funding for a route. For routes receiving funding from a state or states, section 24711(b)(1)(D) of the FAST Act requires for each bid received, “the Secretary have the concurrence of the State of States that provide funding for that route.” FRA understands this requirement to be the obligation of the bidder, not FRA. The bidder is in the best position to obtain such concurrence, and, of course, the support of the state or states is critically important to the bidder's ability to operate the service. The final rule incorporates this requirement in § 269.9(b)(12).

A commenter stated the description of the capital needs for the planned service under § 269.9(b)(6) should include projected capital expenditures for each Federal fiscal year fully or partially covered by the bid. FRA agrees, and the final rule, like the NPRM, requires this information. Specifically, § 269.9(b)(2)(i) requires a bid to include a financial plan, and § 269.5 defines the term “financial plan” as a plan that contains, for each Federal fiscal year fully or partially covered by the bid, an annual projection of the capital expenditure requirements attributable to the route, among other things.

A commenter also stated a bid should include a breakdown of the projected capital expenditures required to comply with the Americans with Disabilities Act, applicable FRA safety regulations, and other applicable laws and regulations. In response to this comment, FRA amended: (1) § 269.9(b)(11) of the final rule to require an eligible petitioner to describe its compliance with all applicable Federal, state, and local laws; and (2) § 269.9(b)(6) of the final rule to make clear that an eligible petitioner's description of the capital needs for the passenger rail service include in detail any costs associated with compliance with Federal law and regulations. These revisions will help FRA evaluate the bid and whether the bid credibly assesses the capital expenditures required to lawfully operate service on the route.

Lastly, a commenter stated the final rule should specify the documentation requirements and procedures applicable to bidders who are new passenger rail service operators to ensure compliance with all applicable safety requirements. Section 269.9(b)(7) of the final rule requires an eligible petitioner in its bid package to describe in detail the bidder's plans for meeting all FRA safety requirements. It is not necessary for this rulemaking to fully describe the regulatory process a new operator will use to initiate service.

Paragraph (c) of this section provides FRA may request supplemental information from a bidder and/or Amtrak if FRA determines it needs such information to adequately evaluate a bid. Such a request may seek information about the costs related to the service Amtrak would still incur following the cessation of service, including the increased costs for other services. FRA will establish a deadline by which the bidder and/or Amtrak must submit the supplemental information to FRA.

A commenter stated this section should require FRA to seek such information from Amtrak, including information from Amtrak about the feasibility of the proposed service, the potential impairment to Amtrak's other services, or the cost of providing access to Amtrak's facilities or equipment. FRA agrees that, when evaluating a bid, additional information may be needed, and FRA may request supplemental information under § 269.9(c). However, requiring FRA to request supplemental information is not necessary, and would overly burden FRA when it does not need supplemental information to evaluate a bid.

Paragraph (a) of this section provides that FRA will select a winning bidder by evaluating the bids based on the requirements of part 269.

A commenter stated the evaluation criteria should include the impact of an award on the Federal funding requirements for intercity passenger rail. Another commenter, on the other hand, stated that any claimed increase in Amtrak's cost, or other negative financial performance impacts, should not be evaluated under § 269.11 (and referenced 49 U.S.C. 24711(e)(2)). As stated above, FRA will evaluate the bids based on the requirements of part 269, and § 269.9(b)(10) of the final rule requires a bidder, as part of the bid package, to analyze the reasonably foreseeable effects, both positive and negative, of the passenger rail service on other intercity passenger rail services. Section 24711(e)(2) of the FAST Act is not relevant to the evaluation of bids. Rather, section 24711(e)(2) concerns the calculation of attributable costs that may be provided to Amtrak if there is a winning bidder other than Amtrak (and states these attributable costs “shall not be deducted from” the operating subsidy awarded to the winning bidder).

Commenters also stated low cost, or high cost, should not drive the evaluation, but rather overall bid quality should be the basis for selection. FRA will evaluate all aspects of a bid in making its determination.

A commenter stated DOT/FRA may have a conflict of interest in administering the pilot program because the Secretary is a member of the Amtrak Board of Directors. The Secretary's roles administering the pilot program and as a member of the Amtrak Board of Directors are mandated by statute. With that said, FRA will administer the pilot program fairly, in good faith, and consistent with the FAST Act.

Paragraph (b) of this section provides that, upon selecting a winning bidder, FRA will publish a notice in the Federal Register identifying the winning bidder, the long-distance route the bidder would operate, a detailed justification of the reasons why FRA selected the bid, and any other information the Secretary determines appropriate. FRA will request public comment for 30 days after the date FRA selects the bid. This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(B)(iii).

Paragraph (a) of this section provides that FRA will execute a contract with a winning bidder that is not or does not include Amtrak, consistent with the requirements of § 269.13, and as FRA may otherwise require, not later than 270 days after the bid deadline § 269.9(b) establishes. This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(E).

Paragraph (b) of this section discusses required elements of the contract between FRA and the winning bidder that is not or does not include Amtrak. This paragraph is based on the statutory directives in 49 U.S.C. 24711(b)(1)(E), (b)(4), and (c)(3).

Commenters stated FRA must ensure that any construction work contractors of a winning bidder perform complies with Davis-Bacon prevailing wage requirements. Section 269.13(b)(6) subjects winning bidders to the section 24405 grant conditions, including section 24405(c)(2)(A), which addresses prevailing wage requirements. Commenters similarly stated FRA must ensure a winning bidder complies with the applicable Buy America requirement. Likewise, § 269.13(b)(6) subjects winning bidders to the section 24405 grant conditions, including section 24405(a), which addresses the Buy America requirement.

A commenter also stated the NPRM did not address how FRA will ensure winning bidders comply with the requirement of the FAST Act subjecting winning bidders to the grant conditions in section 24405. FRA disagrees. Section 269.13(b)(6) of the NPRM and the final rule provides that any contract between FRA and a winning bidder that is not or does not include Amtrak must subject the winning bidder to these grant conditions. And, § 269.17(a) of the final rule states the FRA Administrator shall take any necessary action consistent with title 49 of the United States Code to enforce the contract where a winning bidder fails to fulfill its obligations under the contract required under § 269.13. See 49 U.S.C. 24711(d).

A commenter stated the contract should require the winning bidder to comply with all statutory and other legal requirements that apply to Amtrak's use of the appropriated funds. FRA agrees. For purposes of clarity, FRA added another element to the final rule stating a contract between FRA and a winning bidder must make the winning bidder subject to the requirements of the appropriations act(s) funding the contract. See 49 CFR 269.13(b)(7).

A commenter stated the award of the contract must also be conditioned on the bidder's demonstration, prior to the initiation of service, of compliance with all applicable Federal and state laws and regulations as well as the maintenance of adequate liability coverage for claims through insurance and self-insurance required by 49 U.S.C. 28103(c). First, as stated above, § 269.9(b)(11) of the final rule requires a bid to describe the bidder's compliance with all applicable Federal, state, and local laws. Furthermore, § 269.13(a) makes clear FRA has the discretion to not award a contract if the winning bidder is not in compliance with the law. Second, as to mandatory insurance, 49 U.S.C. 28103(c) applies to Amtrak; it does not apply to other railroads. Nor does the FAST Act impose mandatory insurance beyond that required by 49 U.S.C. 28103. Consequently, the final rule does not impose mandatory insurance beyond what is already required by law. FRA also notes that 49 U.S.C. 28103(a)(2) establishes a rail passenger transportation liability cap, which is currently set at $294,278,983. See 81 FR 1289 (Jan. 11, 2016).

A commenter also stated the contract should be conditioned on the winning bidder's payment of penalties, specified in its contract with FRA, should the winning bidder fail to meet performance standards. FRA did not intend for the final rule to fully address all aspects of the contract between FRA and a winning bidder. As such, contract details concerning penalty payments are not addressed in this final rule and, instead, may be addressed at the time a winning bidder is selected.

A commenter stated that a winning bidder would be subject to the requirement in 49 U.S.C. 24321 prohibiting the use of Federal funds to cover any operating loss associated with providing food and beverage service on a route. The requirements of section 24321 apply to a winning bidder under this pilot program. See 49 U.S.C. 24321(d).

Lastly, a commenter stated any non-Amtrak winning bidders should be required to deal with private rail car owners in a positive manner. FRA disagrees. The FAST Act imposes no such requirement, and FRA declines to regulate how a non-Amtrak winning bidder addresses contracting with private rail car owners.

Paragraph (c) of this section provides that the winning bidder would make their bid available to the public after the bid award with any appropriate confidential or proprietary information redactions. This paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(C)(ii).

Paragraph (a)(1) of this section provides, if an award under § 269.13 is made to a bidder other than Amtrak, Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded route(s) to the bidder. For additional clarity, the final rule added a new paragraph (a)(2) stating that, if Amtrak and the eligible petitioner awarded a route cannot agree on the terms of access, then either party may petition the STB under 49 U.S.C. 24711(g). This paragraph is based on the statutory directive in 49 U.S.C. 24711(c) and (g).

Paragraph (b) of this section implements 49 U.S.C. 24711(c)(2), which states that an employee of any person, except as provided in a collective bargaining agreement, used by such eligible petitioner in the operation of a route under this section shall be considered an employee of that eligible petitioner and subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak.

A commenter stated the final rule should specifically subject a winning bidder to the same rail laws as Amtrak. Section 269.15(b) of the final rule clearly provides, as stated above, that employees are subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak. Moreover, a winning bidder is subject to the section 24405 grant conditions. That includes the section 24405(b) provision that a person conducting rail operations shall be considered a rail carrier under section 10102(5). A commenter also stated the final rule should allow an eligible petitioner to contract with Amtrak for Amtrak to provide train and engine personnel. As noted above, the FAST Act limits the availability of the pilot program to a winning bidder that is not or does not include Amtrak. Furthermore, the FAST Act does not require Amtrak to provide personnel services to an eligible petitioner.

Paragraph (c) of this section states a winning bidder must provide hiring preference to qualified Amtrak employees displaced by the award of the bid, consistent with the staffing plan the winning bidder submits and the grant conditions 49 U.S.C. 24405 establish. This paragraph is based on the statutory directive in 49 U.S.C. 24711(c)(3).

Some commenters stated FRA should incorporate the FAST Act's hiring preference requirements in 49 U.S.C. 24711(c)(3) and 24405(d) into the final rule. To alert eligible petitioners of these related requirements of the FAST Act, FRA revised § 269.15(c) of the final rule to reference the section 24405 grant conditions. In addition, § 269.13(b)(6) of the NPRM and final rule incorporate the section 24405 requirements. A commenter also stated FRA must ensure that winning bidders comply with these hiring preference requirements. Section 269.13(b)(6) of the final rule provides that any contract between FRA and a winning bidder that is not or does not include Amtrak must subject the winning bidder to the section 24405 grant conditions. And, § 269.17(a) of the final rule states the FRA Administrator shall take any necessary action consistent with title 49 of the United States Code to enforce the contract where a winning bidder fails to fulfill its obligations under the contract required under § 269.13.

This section provides under paragraph (a) that, if a bidder awarded a route under this rule ceases to operate the service, or fails to fulfill its obligations under the contract required under § 269.13, the Administrator, in collaboration with the STB, would take any necessary action consistent with title 49 of the United States Code to enforce the contract and ensure the continued provision of service, including installing an interim service rail carrier, providing to the interim rail carrier an operating subsidy necessary to provide service, and re-bidding the contract to operate the service. This section further provides under paragraph (b) that the entity providing interim service would either be Amtrak or an eligible petitioner under § 269.5. This section is based on the statutory directive in 49 U.S.C. 24711(d).

FRA evaluated this final rule consistent with Executive Orders 12866 and 13563 and DOT policies and procedures. See 44 FR 11034 (Feb. 26, 1979). FRA prepared and placed in the docket a regulatory impact analysis addressing the economic impact of the final rule.

FRA does not expect any regulatory costs because this final rule is voluntary and does not require an eligible petitioner to take any action. In addition, the final rule is limited to not more than three long-distance routes as defined in 49 U.S.C. 24102 and operated by Amtrak on the date the FAST Act was enacted. Furthermore, the current market conditions and the investment necessary to operate a long-distance service may further serve to limit the number of eligible petitioners submitting petitions under the pilot program. Of course, if no eligible petitioners participate in the pilot program, then no costs or benefits would be incurred because of the final rule. However, FRA is estimating the costs and benefits generated when three eligible petitioners submit bids to operate long-distance rail service.

As discussed above, FRA assumed three entities will submit bids to estimate costs for the bidding scenario. The costs are solely due to preparing and filing a bid to operate service. Amtrak may submit a bid only if another entity submitted a petition to bid on a route. To estimate the cost for preparing and submitting a bid, FRA estimated the time and cost for FRA to review each bid. FRA estimates its review cost would be approximately $49,834 per bid. Based on the costs of collecting and analyzing data, drafting a bid, and gaining approval within the organization, FRA estimates a railroad or other entity that bids on a route would incur a cost of approximately three times as much as FRA's review cost—approximately $149,503 per bid. If an entity bids on a route, for this analysis, we assumed Amtrak would also submit a bid for the same route. Amtrak should have some of the data necessary to prepare the bid available. Therefore, their cost should be lower than another entity. Based on the costs of analyzing data, drafting a bid, and gaining approval within the organization, FRA estimated Amtrak's cost to prepare and submit a bid would be twice FRA's review cost —approximately $99,669. All bid costs would be incurred during the first year. The table below shows the estimated cost for an entity and Amtrak to bid on one long-distance route.

As stated above, FRA's total burden estimate assumes three bids are submitted for long-distance routes. The total cost to entities other than Amtrak would be approximately $448,509. The total cost to Amtrak would be approximately $299,007. The sum of these two costs is $747,516. Since all petitions and bids would occur during the first year, the total cost would be approximately $747,516 over the four-year period (which could become 8 years if the Secretary renews a contract).

Some benefits are possible from this final rule. FRA cannot quantify the benefits but discussed them qualitatively in the regulatory impact analysis. If no eligible petitioners submit a bid for operating service, Amtrak would continue to operate service as it currently does. Therefore, no benefits would occur because of this final rule. However, if other entities are awarded contracts, those entities may be able to operate the service in a manner that would be beneficial to passengers.

Possible benefits include better service and lower cost. The introduction of competition in the bidding process may increase passenger rail efficiency and generate public benefits by lowering the operational subsidy, and possibly leading to better service and/or lower operating costs to society. FRA expects no change to railroad safety due to this regulation.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency review of proposed and final rules to assess their impacts on small entities. An agency must prepare a Final Regulatory Flexibility Analysis (FRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. FRA is certifying this final rule will not have a significant economic impact on a substantial number of small entities.

FRA published an Initial Regulatory Flexibility Analysis (IRFA) in the NPRM to discuss the potential small business impacts of the requirements in this final rule. FRA requested comments from interested parties regarding the potential economic impact on small entities that would result from the adoption of the proposals in this regulation. FRA received no comments to the NPRM on the economic impact on small entities.

FRA is revising 49 CFR part 269 to comply with a statutory mandate requiring the Secretary to promulgate a rule to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes. The objective of this final rule is to implement the statutory mandate in FAST Act section 11307.

As stated above, the Regulatory Flexibility Act requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies the rule would not have a significant economic impact on a substantial number of small entities. “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a for profit “line-haul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 500 employees, or a “commuter rail system” with annual receipts of less than seven million dollars. See “Size Eligibility Provisions and Standards,” 13 CFR part 121, subpart A.

Federal agencies may adopt their own size standards for small entities in consultation with the SBA and in conjunction with public comment. Under that authority, FRA has published a final statement of agency policy that formally establishes “small entities” or “small businesses” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003 (codified at appendix C to 49 CFR part 209).

The $20 million limit is based on STB's revenue threshold for a Class III railroad carrier. Railroad revenue is adjusted for inflation by applying a revenue deflator formula under 49 CFR 1201.1-1. FRA is using this definition for the final rule. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity.

This final rule applies to the following eligible petitioners: (1) A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure; (2) a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for provision of intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation; or (3) a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for provision of intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation. The only petitioners that may be considered a small entity would be small railroads.

This final rule is voluntary for all eligible petitioners. Therefore, there are no mandates placed on large or small railroads. In addition, the final rule is limited to not more than three long-distance routes operated by Amtrak. Consequently, this final rule is not likely to affect a substantial number of small entities, and most likely will not impact any small entities. FRA requested comments on this and received none.

Small railroads face the same requirements for entry in the pilot program as other railroads. The railroad must own the infrastructure over which Amtrak operates those long-distance routes described in 49 U.S.C. 24102. Any small entity would likely only bid on a route if it was in its financial interest to do so. Accordingly, any impact on small entities would be positive. The pilot program will allow small railroads to enter a market which currently has substantial barriers.

FRA notes this final rule does not disproportionately place any small railroads that are small entities at a significant competitive disadvantage. Small railroads are not excluded from participation if they are statutorily eligible. This final rule and the underlying statute concern the potential selection of eligible petitioners to operate an entire long-distance route. If Amtrak uses 30 miles of a small railroad's infrastructure on a route that is 750 miles long, that small railroad could not apply under this final rule to operate service only over the 30 mile segment it owns (the small railroad would have to apply to operate service over the whole route). Thus, the ability to bid on a route is not constrained by a railroad's size.

This final rule allows small railroads to participate in the pilot program, but does not require them to take any action. If small entities do not believe it would be beneficial to participate in the pilot program, they are not required to take any action. Therefore, there is no significant economic impact on any small entities as a result of this final rule.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies this final rule does not have a significant economic impact on a substantial number of small entities.

Under the Paperwork Reduction Act of 1995 and the Office of Management and Budget's (OMB) Implementing Guidance at 5 CFR 1320.3(c), collection of information means, except as provided in § 1320.4, the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit.

FRA expects the requirements of this final rule will affect less than 10 “persons” as defined in 5 CFR 1320.3(c)(4). Consequently, no information collection submission is necessary, and no approval is being sought from OMB at this time.

FRA evaluated this final rule consistent with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA determined this final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because the rulemaking would not result in a change in current passenger service; instead, the program would only potentially result in a change in the operator of such service. Under section 4(c) and (e) of FRA's Procedures, FRA concludes no extraordinary circumstances exist for this final rule that might trigger the need for a more detailed environmental review. As a result, FRA finds this final rule is not a major Federal action significantly affecting the quality of the human environment.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 4, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

FRA has analyzed this final rule consistent with the principles and criteria in Executive Order 13132. This final rule complies with a statutory mandate, and, thus, is in compliance with Executive Order 13132.

In addition, this final rule will not have a substantial 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. In addition, this final rule will not have any federalism implications that impose substantial direct compliance costs on State and local governments. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this final rule is not required.

Under Section 201 of the Unfunded Mandates Reform (UMR) Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the UMR Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement [detailing the effect on State, local, and tribal governments and the private sector].

The $100,000,000 has been adjusted to $155,000,000 to account for inflation. This final rule will not result in expenditure of more than $155,000,000 by the public sector in any one year, and, thus, preparation of such a statement is not required.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including any notice of inquiry, advance notice of proposed rulemaking, and notice of proposed rulemaking that: (1)(i) Is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) the Administrator of the OMB Office of Information and Regulatory Affairs designates as a significant energy action. FRA evaluated this final rule consistent with Executive Order 13211. FRA determined this final rule will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA concludes this regulatory action is not a “significant energy action” under Executive Order 13211.

Executive Order 13783 requires Federal agencies to review regulations to determine whether they potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. Executive Order 13783 defines “burden” to mean unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources. FRA determined this final rule will not potentially burden the development or use of domestically produced energy resources.

Interested parties should be aware that anyone can search the electronic form of all written communications and comments received into any agency docket by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on Apr. 11, 2000, 65 FR 19477, or you may visit http://www.dot.gov/privacy.html. Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

For the reasons discussed in the preamble, FRA revises part 269 of chapter II, subtitle B, title 49 of the Code of Federal Regulations to read as follows:

The reef fish fishery of the Caribbean EEZ includes triggerfish and filefish, snappers in Snapper Unit 2, and jacks, and is managed under the Fishery Management Plan (FMP) for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands (Reef Fish FMP). Caribbean spiny lobster is managed under the FMP for the Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin Islands (Spiny Lobster FMP). The FMPs were prepared by the Caribbean Fishery Management Council (Council) and are implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The 2010 Caribbean ACL Amendment (which includes, along with another amendment, Amendment 5 to the Reef Fish FMP) and the 2011 Caribbean ACL Amendment (which includes, among other amendments, Amendment 6 to the Reef Fish FMP and Amendment 5 to the Spiny Lobster FMP) revised the Reef Fish and Spiny Lobster FMPs. Among other actions, the 2010 and 2011 Caribbean ACL Amendments and the associated final rules (76 FR 82404, December 30, 2011, and 76 FR 82414, December 30, 2011, respectively) established ACLs and AMs for Caribbean reef fish and spiny lobster, including the species and species groups identified in this temporary rule. The 2010 and 2011 Caribbean ACL Amendments and final rules also allocated ACLs among three Caribbean island management areas, i.e., the Puerto Rico, St. Croix, and St. Thomas/St. John management areas of the Caribbean EEZ, as specified in Appendix E to part 622. The ACLs for species and species groups in the Puerto Rico management area, except for spiny lobster, were further allocated between the commercial and recreational sectors, and AMs apply to each of these sectors separately.

On May 11, 2016, NMFS published the final rule implementing the Comprehensive Amendment to the U.S. Caribbean FMPs: Application of AMs (81 FR 29166). Among other items, the final rule clarified that the spiny lobster ACL for the Puerto Rico management area is applied as a single ACL for both the commercial and recreational sectors, consistent with the Council's intent in the 2011 Caribbean ACL Amendment, and the AM applies to both sectors. Additionally, the final rule clarified the fishing restrictions that occur in the Caribbean EEZ when an ACL is exceeded, and an AM is triggered and implemented. The Puerto Rico management area encompasses the EEZ off Puerto Rico.

In addition, on June 8, 2017, NMFS implemented the final rule for Amendment 8 to the Reef Fish FMP, Amendment 7 to the Spiny Lobster FMP, and Amendment 6 to the FMP for Corals and Reef Associated Plants and Invertebrates of Puerto Rico and the U.S. Virgin Islands (collectively referred to as the AM Timing Amendment) (82 FR 21475, May 9, 2017). The final rule implementing the AM Timing Amendment modified the date for initiating an AM-based closure in the event of an ACL overage for the species and species groups managed by the Council under the aforementioned FMPs. Instead of initiating an AM-based closure on December 31 and counting backward into the year for the number of days necessary to achieve the reduction in landings required so landings do not exceed the applicable ACL, the AM-based closure period will be applied on September 30 and count backward toward the beginning of the fishing year.

The ACLs for the applicable species and species groups, and fishing sectors in the Puerto Rico management area covered by this temporary rule are as follows and are given in round weight:

• The commercial ACL for triggerfish and filefish, combined, is 58,475 lb (26,524 kg), as specified in § 622.12(a)(1)(i)(Q).

• The ACL for spiny lobster (applicable to the commercial and recreational sectors) is 327,920 lb (148,742 kg), as specified in § 622.12(a)(1)(iii).

• The commercial ACL for Snapper Unit 2 is 145,916 lb (66,186 kg), as specified in § 622.12(a)(1)(i)(D).

• The recreational ACL for triggerfish and filefish, combined, is 21,929 lb (9,947 kg), as specified in § 622.12(a)(1)(ii)(Q).

• The recreational ACL for jacks is 51,001 lb (23,134 kg), as specified in § 622.12(a)(1)(ii)(M).

NMFS has determined that landings for the species and species groups in this temporary rule from the Puerto Rico management area exceeded the applicable ACLs. Therefore, in accordance with regulations at 50 CFR 622.12(a), the Assistant Administrator for NOAA Fisheries (AA) is filing a notification with the Office of the Federal Register to reduce the lengths of the fishing seasons for the applicable species or species groups in the 2017 fishing year by the amount necessary to ensure, to the extent practicable, that landings do not exceed the applicable ACLs. As described in the Reef Fish and Spiny Lobster FMPs, and in this temporary rule, any required fishing season reduction will be applied from September 30 backward, toward the beginning of the fishing year. If the length of the required fishing season reduction exceeds the time period of January 1 through September 30, any additional fishing season reduction will be applied from October 1 forward, toward the end of the fishing year on December 31. NMFS evaluates landings relative to the applicable ACL based on a moving 3-year average of landings, as described in the FMPs.

Based on the most recent available landings data, from the 2013-2015 fishing years, NMFS has determined that the ACLs for spiny lobster; the commercial sectors for triggerfish and filefish (combined), and Snapper Unit 2; and the recreational sectors of triggerfish and filefish (combined), and jacks in the Puerto Rico management area have been exceeded. In addition, NMFS has determined that the ACLs for these species and species groups were exceeded because of increased catches and not as a result of enhanced data collection and monitoring efforts.

This temporary rule implements AMs for the identified commercial and recreational sectors for the species and species groups listed in this temporary rule, to reduce the respective 2017 fishing season lengths to ensure that landings do not exceed the applicable ACLs in the 2017 fishing year. The 2017 fishing seasons for the applicable sectors for these species and species groups in the Puerto Rico management area of the Caribbean EEZ are closed at the times and dates listed below. These closures remain in effect until 12:01 a.m., local time, on October 1, 2017.

• The commercial sector for triggerfish and filefish, combined, is closed effective at 12:01 a.m., local time, on August 13, 2017. Triggerfish and filefish, combined, includes ocean, queen, and sargassum triggerfish; scrawled and whitespotted filefish; and black durgon;

• The commercial and recreational sectors for spiny lobster are closed effective at 12:01 a.m., local time, on September 7, 2017;

• The commercial sector for Snapper Unit 2 is closed effective at 12:01 a.m., local time, on September 15, 2017. Snapper Unit 2 includes queen and cardinal snapper;

• The recreational sector for triggerfish and filefish, combined, is closed effective at 12:01 a.m., local time, on September 18, 2017. Triggerfish and filefish, combined, includes ocean, queen, and sargassum triggerfish; scrawled and whitespotted filefish; and black durgon; and

• The recreational sector for jacks is closed effective at 12:01 a.m., local time, on September 28, 2017. Jacks includes horse-eye, black, almaco, bar, and yellow jack; greater amberjack; and blue runner.

After these specified closures, on October 1, 2017, these applicable species and species groups will reopen through December 31, 2017, the end of the current fishing year.

During the Puerto Rico commercial sector closures announced in this temporary rule for the species above, except for spiny lobster, which is described below, the commercial harvest of the indicated species or species groups is prohibited. All harvest or possession of the indicated species or species groups in or from the Puerto Rico management area is limited to the recreational bag and possession limits specified in § 622.437, unless the recreational sector for the species or species group is closed, and the sale or purchase of the indicated species or species group in or from the Puerto Rico management area is prohibited.

During the Puerto Rico recreational sector closures announced in this temporary rule for the species above, except for spiny lobster, which is described below, all recreational harvest of the indicated species groups is prohibited, and the recreational bag and possession limits for the indicated species groups in or from the Puerto Rico management area are zero.

During the Puerto Rico spiny lobster closure announced in this temporary rule, both the commercial and recreational sectors for spiny lobster are closed. The harvest, possession, purchase, or sale of spiny lobster in or from the Puerto Rico management area is prohibited. The bag and possession limits for spiny lobster in or from the Puerto Rico management area are zero.

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of the species and species groups included in this temporary rule, in the Puerto Rico management area, and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.12(a) and is exempt from review under Executive Order 12866.

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

This action responds to the best scientific information available. The AA finds good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the rules implementing the ACLs and AMs for these species and species groups have been subject to notice and comment, and all that remains is to notify the public that the ACLs were exceeded and that the AMs are being implemented for the 2017 fishing year. Prior notice and opportunity for public comment on this action would be contrary to the public interest because many of those affected by the length of the commercial and recreational fishing seasons, including commercial operations, and charter vessel and headboat operations that book trips for clients in advance, need advance notice to adjust their business plans to account for the reduced commercial and recreational fishing seasons.

Summary of Final Management Measures

In this rule, NMFS specifies management measures for the 2017 summer flounder and scup recreational fisheries consistent with the recommendations of the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission.

NMFS is implementing measures that apply in the Federal waters of the exclusive economic zone. These measures apply to all federally-permitted party/charter vessels with applicable summer flounder and scup permits, regardless of where they fish, unless the state in which they land implements measures that are more restrictive. These measures are intended to achieve, but not exceed, the previously established 2017 recreational harvest limits for scup published on December 28, 2015 (80 FR 80689), and for summer flounder published on December 22, 2016 (81 FR 93842).

NMFS is implementing conservation equivalency to manage the 2017 summer flounder recreational fishery, as proposed on April 19, 2017 (82 FR 18411). These measures are consistent with the recommendation of the Council and Commission. Additional information on the development of the 2017 measures is provided in the proposed rule and not repeated here.

Conservation equivalency, as established by Framework Adjustment 2 (July 29, 2001; 66 FR 36208), allows each state to establish its own recreational management measures (possession limits, minimum fish size, and fishing seasons) to achieve its state harvest limit established by the Commission from the coastwide recreational harvest limit, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize differences in regulations for anglers fishing in adjacent waters.

The Commission implemented Addendum XXVIII to its Summer Flounder Fishery Management Plan (FMP) to continue regional conservation equivalency for fishing year 2017. The Commission has adopted the following regions, which are consistent with the 2016 regions: (1) Massachusetts; (2) Rhode Island; (3) Connecticut and New York; (4) New Jersey; (5) Delaware, Maryland, and Virginia; and (6) North Carolina. To provide the maximum amount of flexibility and to address the state-by-state differences in fish availability, each state in a region is required by the Council and Commission to establish fishing seasons of the same length, with identical minimum fish sizes and possession limits. Addendum XXVIII requires each state or region, with the exception of North Carolina, to increase the 2017 summer flounder minimum size by 1 inch (2.5 cm) from the 2016 size limit. The 2017 measures also reduce the bag limit for most of the states and regions, while the season length remains the same as in 2016. More information on this addendum is available from the Commission (www.asmfc.org).

The Commission certified, by letter dated April 5, 2017, that the Addendum XXVIII measures required to be implemented by individual states and regions, when combined, are the conservation equivalent of coastwide measures that would be expected to result in the 2017 recreational harvest limit being achieved, but not exceeded.

Following this determination, New Jersey proposed and subsequently implemented on May 25, 2017, alternative measures for its state waters (i.e., 18-inch (45.7-cm) fish size, 3-fish bag limit, and a 104-day season). The Summer Flounder Management Board requested these measures be reviewed by the Commission's Technical Committee when they were proposed. The Technical Committee found New Jersey's measures are not the conservation equivalent of Addendum XXVIII measures. Using the Technical Committee's information, the Management Board found that New Jersey's measures were not conservationally equivalent to Addendum XXVIII and recommended New Jersey be found out of compliance with the Commission's FMP. The Commission's Interstate Fisheries Management Policy Board and Commission as a whole met on June 1, 2017, to consider the Management Board's non-compliance recommendation for the state of New Jersey. Both the Policy Board and the Commission found New Jersey out of compliance with the Commission's FMP for summer flounder. The Commission has referred the matter to NMFS under delegation of authority from the Secretary of Commerce, for federal non-compliance review under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act. NMFS will review the Commission's non-compliance referral through a separate process.

Based on the April 5, 2017, recommendation of the Commission, we find that the recreational summer flounder fishing measures required to be implemented for 2017 in state waters are, collectively, the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106(a). According to § 648.107(a)(1), vessels subject to the recreational fishing measures are not subject to Federal measures, and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) is amended through this rule to recognize state-implemented measures as conservation equivalent of the coastwide recreational management measures for 2016. As mentioned above, New Jersey has not implemented Addendum XXVIII's required measures. NMFS' review and findings regarding the non-compliance recommendation for New Jersey will begin with publishing a notice in the Federal Register.

In addition, this action implements default coastwide measures (a 19-inch (48.3-cm) minimum size, 4-fish possession limit, and June 1 through September 15 open fishing season), that become effective January 1, 2018, when the 2017 conservation equivalency program expires. These measures will remain effective until replaced by the 2018 recreational management measures in the spring of next year.

This rule maintains status quo scup measures for the 2017 fishery: A 9-inch (22.9-cm) minimum fish size, 50-fish per person possession limit, and year-round season.

On April 19, 2017, NMFS published the proposed 2017 summer flounder and scup recreational management measures for public notice and comments. NMFS received 17 comments, of which 14 were related to measures provided in the proposed rule. New Jersey submitted a comment letter focused on their dissatisfaction with the specific measures outlined in Addendum XXVIII. New Jersey's concerns will be considered through the non-compliance proceedings and are not responded to in this action. Other comments received related to preferences for lower quotas for summer flounder and scup, as well as opinions that the Council favors the commercial industry.

No changes to the proposed specifications were made as a result of these comments.

Comment 1: One commenter from the State of Rhode Island stated that the measures contained within Addendum XXVIII were not restrictive enough to constrain catch within the 2017 summer flounder harvest limit. The commenter noted concern that more restrictive measures proposed by the State of Rhode Island were rejected by the Commission's Management Board.

Response: The Commission and its Technical Committee has expertise in determining whether or not state-implemented measures are conservationally equivalent to those measures recommended by the Council. The Commission has determined that the addendum's measures achieve conservation equivalency and are likely to constrain catch within the 2017 recreational harvest limit.

Comment 2: Eleven commenters raised concerns about state-specific summer flounder regulations which are outside the scope of this action, each specifically requesting that the State of Delaware not be penalized for anything that results from New Jersey's public opposition to the Commission's Addendum.

Response: As previously mentioned, the non-compliance determination process for New Jersey will happen outside of this action. Delaware has implemented measures outlined in the Commission's Addendum XXVIII. No further action is required by the State of Delaware for 2017.

Comment 3: One commenter was concerned about the summer flounder precautionary default season, stating that he would prefer the season to begin in May, rather than July.

Response: Because the Commission did not request that the precautionary default measures be applied to any state, these measures are not applicable for 2017. Instead, this rule implements the Commission and Council recommended measures, as previously proposed, for conservation equivalency in 2017. The coastwide default measures will be effective to the start of the 2018 fishing year.

The Administrator, Greater Atlantic Region, NMFS, determined that this final rule is necessary for the conservation and management of the summer flounder fishery and that it is consistent with the Magnuson-Stevens Fisheries Conservation and Management Act (Magnuson-Stevens Act) and other applicable laws.

The Assistant Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for this rule, to ensure that the final management measures are in place as soon as possible. A delay in this rule's effectiveness would unfairly prejudice federally permitted charter/party vessels. Recreational fisheries are already underway for summer flounder and scup. The linchpin of NMFS's decision whether to proceed with the coastwide measures or adopt the conservation equivalent measures is advice from the Commission following review of the individual state plans. Rulemaking has been delayed while final information regarding the status of New Jersey through the Commission's conservation equivalency process has been evaluated. The Commission's Summer Flounder Management Board met on June 1, 2017, to discuss whether or not to find New Jersey out of compliance with Addendum XXVIII. NMFS did not want to cause public confusion by releasing a final rule prior to the Commission's final determination on New Jersey's summer flounder management measures.

Based on historic effort and landings information, and the importance of summer flounder as a recreational fishery target species, participation and landings are expected to be high from the onset of the fishery that is already underway. Party and charter vessels from the various states are the largest component of the recreational fishery that fish in the EEZ. The Federal coastwide regulatory measures for summer flounder that were codified last year remain in effect until the 2017 recreational measures are made effective. These measures do not achieve the necessary reduction in recreational landings to constrain the fishery to the 2017 recreational harvest limit. Although the states' summer flounder fisheries are already open, additional delay in implementing the measures of this rule will increase confusion on what measures are in place in Federal waters. This will disadvantage Federally permitted charter/party vessels and increase the likelihood of illegal landings due to misunderstood regulations. The resulting disconnect in the regulations that exist until this rule's measures are implemented may potentially compromise the mortality objectives of the summer flounder fishery.

Unlike actions that require an adjustment period to comply with new rules, charter/party operators will not have to purchase new equipment or otherwise expend time or money to comply with these management measures. Rather, complying with this final rule simply means adhering to the published management measures for each relevant species of fish while the charter/party operators are engaged in fishing activities.

For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay and to implement this rule upon publication in the Federal Register.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates the IRFA, a summary of any significant issues raised by the public comments in response to the IRFA and NMFS's responses to those comments, and a summary of the analyses completed to support the action. A copy of the SIR/IRFA is available from the Council (see ADDRESSES).

The classification to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

Our responses to all of the comments received on the proposed rule, including those that raised significant issues with the proposed action, can be found in the Comments and Responses section of this rule. Aside from the comment from the State of New Jersey that will be considered through a separate process, none of the comments received raised specific issues regarding the economic analyses summarized in the IRFA. No changes to the proposed rule were required to be made as a result of public comments.

Available ownership data for the for-hire fleet indicate that there were 411 for-hire affiliate firms generating revenues from fishing recreationally for various species during the 2013-2015 period, all of which are categorized as small businesses. Although it is not possible to derive what proportion of the overall revenues came from specific fishing activities, given the popularity of summer flounder and scup as a recreational species, it is likely that revenues generated from summer flounder and scup recreational fishing are important for some, if not all, of these firms. The three-year average (2013-2015) gross receipts for these small entities ranged from $10,000 for 121 entities to over $1 million for 10 entities (highest value was $2.7 million).

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

In seeking to minimize the impact of recreational management measures (minimum fish size, possession limit, and fishing season) on small entities (i.e., Federal party/charter permit holders), NMFS is constrained to implementing measures that meet the conservation objectives of the FMP and Magnuson-Stevens Act requirements. The only other summer flounder management measure alternative considered was the less restrictive status quo alternative (i.e., the non-preferred coastwide 2016 measures). State-specific implications of the no-action (coastwide) alternative of an 18-inch (45.7-cm) minimum fish size, a 4-fish bag limit, and closed season of May 1 through September 30, would not achieve the mortality objectives required by the FMP, and, therefore, cannot be continued for the 2017 fishing season.

The conservation equivalency approach implemented by this action allows states some degree of flexibility in the specification of management measures, unlike the application of one set of uniform coastwide measures. The degree of flexibility available to states under conservation equivalency is constrained to a combined suite of minimum fish size, per angler possession limit, and fishing season that will likely constrain catch to the 2017 recreational harvest limit. This provides the opportunity for states to construct measures that achieve the conservation objective while providing a state-specific set of measures in lieu of the one-size-fits-all coastwide measure.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules.

As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal party/charter permits issued for the summer flounder and scup fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES) and at the following Web site: http://www.greateratlantic.fisheries.noaa.gov.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

Electronic Access

This rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

The PCGFMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS.

The final rule to implement the 2017-2018 harvest specifications and management measures for most species of the Pacific coast groundfish fishery was published on February 7, 2017 (82 FR 9634).

The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommended three changes to current groundfish management measures at its June 9-14, 2017 meeting. The changes the Council recommended include: (1) Increasing the limited entry (LE) and open access (OA) fixed gear trip limits for lingcod both north and south of 40°10′ North latitude (N. lat.), (2) modifying the shoreward boundary of the non-trawl rockfish conservation area (RCA) between 40°10′ N. lat. and 34°27′ N. lat., and (3) distributing the deductions initially made from the ACL (i.e. the off-the-top deductions, or “buffer”), 25 metric tons (mt) of Pacific ocean perch (POP) and 50 mt of darkblotched rockfish, and making it available to the mothership (MS) and catcher/processor (C/P) sectors of the at-sea Pacific whiting fishery; 12.5 mt of POP and 25 mt of darkblotched rockfish, to each sector.

To increase harvest opportunities for LE and OA fixed gear sectors north and south of 40°10′ N. lat., the Council considered increases to lingcod trip limits for all remaining periods in 2017. Trip limits for lingcod north and south of 40°10′ N. lat. have been designated at 50 CFR 660.60(c)(1)(i) and in Section 6.2.1 of the PCGFMP as routine management measures.

Lingcod are distributed coastwide with harvest specifications based on two area stock assessments that were conducted in 2009 for the areas north and south of the California-Oregon border at 42° N. latitude. The stock assessments indicated west coast lingcod stocks are healthy with the stock depletion estimated for lingcod off of Washington and Oregon to be at 62 percent of its unfished biomass, and lingcod off of California estimated to be at 74 percent of its unfished biomass at the start of 2009. Trip limit increases, for species such as lingcod, are intended to reduce discarding (i.e., turn discards into landed catch and thereby improve catch accounting) and increase attainment of the non-trawl harvest guideline (HG). This change may result in a small increase in the catch of some overfished species, such as yelloweye rockfish, but such an increase is very unlikely to result in exceeding overfished species ACLs when combined with the harvest from all other sources.

To assist the Council in evaluating increases to lingcod trip limits, the Groundfish Management Team (GMT) made model-based landings projections for the LE and OA fixed gear sector for north and south of 40°10′ N. lat. for the remainder of the year. For these projections, the GMT included four recent updates to the discard mortality rates used by the West Coast Groundfish Observer Program (WCGOP) to estimate discard mortality each year and, by the GMT, in the nearshore model to project future discard mortality. The updates included: (1) Updating the gear proportions by depth with recent data; (2) calculating regional discard mortality rates to match the WCGOP estimate strata (i.e. north and south of 40°10′ N. lat.); (3) utilizing the Council approved changes to the “sport-like” surface discard mortality rates; and (4) incorporating a bias modifier to calibrate the gear proportions from WCGOP (a sub-sample of landings to reflect the gear proportions from fish tickets in the Pacific Fishery Information Network (PacFIN)). These landings projections also were based on the most recent information available.

The model, using the new discard mortality rates, predicted a projected harvest of 71.2 mt, or 4.2 percent attainment of the 2017 non-trawl allocation (1,680 mt), of lingcod north of 40°10′ N. lat. for both OA and LE fixed gear under the current trip limits, and an increase in projected harvest to 75 mt, or 4.4 percent attainment of the non-trawl allocation, of lingcod north of 40°10′ N. lat. for both OA and LE fixed gear under the recommended increased trip limits. The model also predicted a projected harvest of 91.8 mt, or 13 percent attainment of the non-trawl allocation (683 mt), of lingcod south of 40°10′ N. lat. for both OA and LE fixed gear under the current trip limits, and an increase in projected harvest to 133.8 mt, or 19.6 percent attainment of the non-trawl allocation, of lingcod south of 40°10′ N. lat. for both OA and LE fixed gear under the recommended increased trip limits. Using the updated discard mortality rates, the model also predicted that under the current regulations harvest of yelloweye rockfish through the end of the year would be 0.7 mt lower (1.4 mt out of a 2.1 mt HG) than was anticipated at the start of this year.

Yelloweye rockfish is an overfished species currently managed under a rebuilding plan. The projected impacts to yelloweye rockfish would increase under the increased trip limits for lingcod. Based on the GMT's analysis, the changes to the trip limits north of 40°10′ N. lat. are projected to result in an increase in lingcod landings through the end of the year of approximately 3.8 mt and a projected increase in yelloweye rockfish discard mortality of 0.06 mt. The same GMT analysis showed that an increase in trip limits for lingcod south of 40°10′ N. lat. would result in an increase in projected lingcod landings through the end of the year of 55 mt and an increase in yelloweye rockfish discard mortality of 0.21 mt. This increase in trip limits, and subsequent increase in lingcod landings, does not change total projected impacts to co-occurring overfished species from those anticipated in the 2017-18 harvest specifications and management measures, as the total projected impacts for those species assumes that the entire lingcod ACL is harvested.

Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 (North and South) to part 660, subpart E and Tables 3 (North and South) to part 660, subpart F in the CFR, trip limit changes for the LE and OA fixed gear fisheries north and south of 40°10′ N. lat. The trip limits for lingcod in the LE fixed gear fishery north of 40°10′ N. lat. are increased from “1,200 lb (544 kg) bimonthly” to “1,400 lb (635 kg) bimonthly” during periods 4 through 5; from “600 lb (272 kg) per month” to “700 lb (318 kg) bimonthly” during the month of November; and from “200 lb (91 kg) per month” to “400 lb (181 kg) bimonthly” during the month of December. The trip limits for lingcod in the LE fixed gear fishery south of 40°10′ N. lat. are increased from “800 lb (363 kg) bimonthly” to “1,200 lb (544 kg) bimonthly” during periods 4 through 5; from “400 lb (181 kg) bimonthly” to “600 lb (272 kg) per month” during the month of November; and from “200 lb (91 kg) per month” to “300 lb (136 kg) bimonthly” during the month of December.

The trip limits for lingcod in the OA fixed gear fishery north of 40°10′ N. lat. are increased from “600 lb (272 kg) per month” to “700 lb (318 kg) per month” during periods 4 through 5 and during the month of November; and from “100 lb (45 kg) per month” to “200 lb (181 kg) per month” during the month of December. The trip limits for lingcod in the OA fixed gear fishery south of 40°10′ N. lat. are increased from “400 lb (181 kg) per month” to “600 lb (272 kg) per month” during periods 3 through 5; and are increased from “100 lb (45 kg) per month” to “150 lb (68 kg) per month” during the month of December.

For the OA fixed gear fishery south of 40°10′ N. lat., the Council recommended a “200 lb (91 kg) per month” trip limit for lingcod during the month of November, which is lower than the current lingcod trip limit for November in the OA fixed gear fishery south of 40°10′ N. lat. at “400 lb (181 kg) per month.” The Council recommended trip limit was based on an error in the GMT report and is inconsistent with the report's analysis of the estimated impacts, which analyzed a “600 lb per month” trip limit for lingcod during the month of November. NMFS understands the Council intent with the recommendations for changes to lingcod trip limits was to increase trip limits from what is currently in regulation to provide additional access and harvest a greater proportion of the lingcod ACL. It was not the Council's intent to reduce harvesting opportunities by reducing the OA fixed gear lingcod trip limits north of 40°10′ N. lat. for the month of November from 400 lb to 200 lb. Therefore, NMFS is not implementing the lower November trip limit for lingcod (200 lb (91 kg) per month) in the OA fixed gear fishery south of 40°10′ N. lat. for the month of November, and the trip limit for that month will remain at “400 lb (181 kg) per month.” This trip limit during the month of November would reduce the projected lingcod impacts from those presented to the Council (146.7 mt) to 133.8 mt.

The non-trawl RCA applies to vessels that take, retain, possess, or land groundfish using non-trawl gears, unless they are incidental fisheries that are exempt from the non-trawl RCA (e.g. the pink shrimp non-groundfish trawl fishery). The seaward and shoreward boundaries of the non-trawl RCAs vary along the coast, and are divided at various commonly used geographic coordinates, defined in § 660.11, subpart C. Modifications to RCAs are designated as a routine management measure in § 660.60(c)(3)(i) and section 6.2.1 of the PCGFMP.

RCAs were originally established in the early 2000s to protect bocaccio and canary rockfishes which had recently been declared overfished.1 These large area closures were intended to close off areas to fishing in the main portion of the species' depth range to reduce encounters and subsequent mortality. At that same time, conservative trip limits, including no retention, were implemented to further reduce catches and overall mortality, and ensure the stocks would rebuild more quickly. Unfortunately, implementing RCAs also greatly reduced access to many healthy target stocks which were found in similar depths to overfished species. As a result, an important shelf rockfish fishery which used to operate south of 40°10′ N lat. was severely impacted.

In 2009, the shoreward boundary of the non-trawl RCA was established based on fishery information indicating that fishing in some areas in the non-trawl fishery have higher yelloweye rockfish catch rates than in others, and the RCA boundaries were adjusted to reduce mortality of yelloweye rockfish in these areas.

Between 40°10′ N. lat. and 34°27′ N. lat., the non-trawl RCA is currently defined by the boundary lines approximating the 30 fm and 125 fm depth contours. All fishing with non-trawl gear must occur shoreward of the boundary line approximating the 30 fm depth contour, or seaward of the boundary line approximating the 125 fm depth contour. Changes to the non-trawl RCA shoreward boundary between 40°10′ N. lat. and 34°27′ N. lat., to shift the shoreward boundary deeper and open additional fishing area shoreward of the non-trawl RCA, were previously recommended by the California Department of Fish and Wildlife (CDFW) during the 2017-18 Harvest Specifications and Management Measures process. The Council did not ultimately recommend a boundary line change, at that time, due to the increased yelloweye rockfish projected impacts when fishing was opened in those areas.

The GMT's recent updates to the discard mortality rates—discussed further under the preamble subheading Fishery Management Measures for Lingcod LE and OA Fixed Gear North and South of 40°10′ N. lat.—resulted in projected impacts to yelloweye rockfish through the end of the year that were lower than anticipated during the development of the 2017-18 harvest specifications and management measures. The Council has recommended modifying the shoreward non-trawl RCA boundary from the boundary line approximating the 30 fm depth contour to the boundary line approximating the 40 fm depth contour in the area from 40°10′ N. lat., and 34°27′ N. lat. The change to the non-trawl RCA shoreward boundary line in this area opens areas that have been closed since 2009, and may increase fishing efficiency and reduce gear conflicts by spreading the nearshore fleet over a larger fishing area. Opening this area is anticipated to increase overall landings of both target and non-target groundfish species, but mortality is anticipated to remain below the allocations or harvest limits for all species.

Modifying the shoreward boundary of the non-trawl RCA in this area would provide harvest opportunities for many important target stocks, specifically deeper nearshore rockfish (blue, brown, copper, and olive rockfishes) and shelf rockfish species (chilipepper, greenblotched, Mexican, and vermilion rockfishes). Non-trawl harvest of groundfish is managed with cumulative trip limits, and any increased attainment is expected to remain within allowable harvest limits. Relatively small impacts to canary, bocaccio, and yelloweye rockfish are expected. All projected bocaccio and canary rockfish impacts would remain within the nearshore fishery share of the non-trawl allocations for those species.

The GMT presented an updated analysis to the Council regarding the projected yelloweye rockfish impacts from modifying the shoreward boundary of the non-trawl RCA. The GMT assumed that effort would remain unchanged within the 0 fm to 10 fm depth bin, and all remaining effort would shift into deeper water (30 to 40 fm depth bin) when the boundary was modified. Yelloweye rockfish is an overfished species that is encountered primarily north of 40°10′ N. lat. Few encounters occur south of 40°10′ N. lat., and no encounters occur south of 34°27′ N. lat. While some encounters may occur from modifying the non-trawl RCA shoreward boundary, they are expected to be rare. Projected impacts of yelloweye rockfish through the end of the year, including impacts of the increased lingcod trip limits discussed above, are within California's nearshore yelloweye rockfish HG share of 0.7 mt. Based on the GMT's projections, the expected increase in yelloweye rockfish impacts is 0.15 mt from what was projected to occur in the absence of the inseason adjustments to management measures implemented in this action.

Therefore, based on the new information available regarding the discard mortality of yellow-eye rockfish, the Council recommended and NMFS is adjusting the shoreward boundary of the non-trawl RCA between 40°10′ N lat. and 34°27′ N. lat., by modifying Table 2 (South) to part 660, subpart E and Table 3 (South) to part 660, subpart F in the CFR, so that the boundary lines approximating the 40 fm and 125 fm depth contours, in this area, will define the non-trawl RCA in this area.

As part of the biennial harvest specifications and management measures process, annual ACLs are set for non-whiting groundfish species, deductions are made “off-the-top” from the ACL for various sources of mortality (including non-groundfish fisheries that catch groundfish incidentally, also called incidental open access fisheries) and the remainder, the fishery HG, is allocated among the groundfish fisheries. Regulations at § 660.60(c)(3)(ii) allow NMFS to distribute these “off-the-top” deductions from the ACL to any sector through routine inseason action to make fish that would otherwise go unharvested available to other fisheries during the fishery year, and after the Council has made the appropriate considerations. Also consistent with section 6.5.2 of the PCGFMP, NMFS has the authority to implement management measures to reduce bycatch of non-groundfish species and, under certain circumstances, the measures may be implemented inseason. However, under no circumstances may the intention of such management measures be simply to provide more fish to a different user group or to achieve other allocation objectives. Therefore, distribution of POP and darkblocked rockfish to the at-sea sectors meets the criteria specified in regulation at § 660.60(c)(3)(ii) and the PCGFMP for a routine management measure.

During development of the 2017-18 harvest specifications and management measures, the Council recommended, and NMFS implemented, a new category of “off-the-top” deduction, known as a “buffer” (81 FR 75266). The buffer consists of an amount of yield that is deducted from the ACLs for canary and darkblotched rockfish, and POP, as described at § 660.55(b) and specified in the footnotes to Tables 1a and 2a to subpart C. This new management measure set the fishery HG at an amount after the buffer was subtracted from the ACL. The result was a specific amount of yield for each of the three species (25 mt for POP, 50 mt for darkblotched rockfish, and 188 mt for canary rockfish) that was unallocated at the start of the year, but is held in reserve as a buffer, and can be distributed to fisheries in need after an unforeseen catch event occurs inseason. Distribution of the buffer must go to a sector that has demonstrated a need for receiving such a distribution and not for the sole purpose of extending a fishery before a need is demonstrated. Additionally, under the buffer approach, all sectors received a lower allocation of darkblotched rockfish and POP in 2017 than they would have if the entire ACL was allocated; thereby, creating a potential for foregone yield by most sectors. However, foregone yield is expected to be inconsequential because historic attainment of these species has been low, with an average attainment from 2011-2014 of 41 percent of the darkblotched rockfish ACLs and 35 percent of the POP ACLs.

Pacific whiting fisheries encounter Klamath River Chinook salmon incidentally, particularly when fishing off the central and southern Oregon coast. At its March 2017 meeting, the Council received the most recent projections of salmon stock status (Preseason Report I) and considered that Klamath River Chinook will not meet escapement goals for 2017 by a historically large margin. At its April 2017 meeting, the Council recommended complete closure of commercial salmon fisheries off southern Oregon and northern California (approximately 44° N. lat. to 40°10′ N. lat.) and closure of recreational salmon fisheries in similar areas (approximately 42°45′ N. lat. to 40°10′ N. lat.) to protect Klamath River Chinook salmon.

Chinook salmon bycatch in the Pacific whiting fishery varies by latitude, with 81 percent of Chinook being taken when fishing between Cape Falcon (45°46′ N. lat.) and Cape Blanco (42°50′ N. lat.). This is a similar area in which Klamath River Chinook stocks are commonly encountered, where all commercial and recreational salmon fishing in 2017 is closed. At-sea processing of Pacific whiting is currently prohibited south of 42° N. lat. (the Oregon-California border) per regulations at § 660.131(e). Both the MS and C/P sectors expressed willingness at the April 2017 Council meeting to modify operations to avoid Chinook salmon bycatch, but acknowledged that difficulties were likely given their rockfish allocations and historically high Pacific whiting allocations. While moving harvesting operations north to Washington and northern Oregon has likely reduced impacts of the Pacific whiting fishery on Klamath River Chinook, catch of POP in the Pacific whiting fisheries has traditionally been highest when fishing off Washington.

The limited availability of overfished species that can be taken as incidental catch in the Pacific whiting fisheries, particularly darkblotched rockfish and POP, led NMFS to implement sector-specific allocations for these species to the Pacific whiting fisheries. If the sector-specific allocation for a non-whiting species is reached, NMFS may close one or more of the at-sea sectors automatically, per regulations at § 660.60(d). At the start of 2017, the MS and C/P sectors of the Pacific whiting fishery were allocated 9.0 mt and 12.7 mt of POP, respectively, per regulations at § 660.55(c)(1)(i)(B).

At the Council's April meeting, the MS sector requested an increase to their POP set-aside to accommodate northern movement of the fleet to reduce harvest of Klamath River Chinook and to prevent closure of the MS sector prior to harvesting their full allocation of Pacific whiting. To accommodate movement of the at-sea fleets farther north, away from Klamath River Chinook and into waters with historically higher catch rates of POP, the Council recommended, and NMFS implemented a distribution of 7 mt of POP, from the off-the-top deductions that were made at the start of the 2017-2018 biennium, to the MS and C/P sectors, 3.5 mt to each sector, to accommodate potential catch of POP as each sector prosecutes their 2017 Pacific whiting allocations in areas where bycatch of Klamath River Chinook is less likely (May 16, 2017, 82 FR 22428). The Council's intent in distributing the POP, that would otherwise go unharvested, was to maintain 2017 harvest opportunities for the MS and C/P sectors of the Pacific whiting fishery, while protecting Klamath River Chinook.

At the June 2017 Council meeting, the MS and C/P sectors requested access to the darkblotched rockfish and POP “buffers” to continue to accommodate the northern movement of the fleet to reduce harvest of Klamath River Chinook and to prevent closure of either sector prior to harvesting their full allocation of Pacific whiting. In response to this request, the GMT analyzed the current attainments of Pacific whiting, darkblotched and canary rockfishes, and POP, as well as provided some model projections of the estimated needs of the MS and C/P sectors for the 2017 fishing season.

Based on the GMT's analysis, as of June 11, 2017, the MS sector had attained 7.6 percent of their total darkblotched rockfish allocation (0.9 mt out of 11.8 mt), 20.2 percent of their total POP allocation (2.5 mt out of 12.5 mt), and 22.2 percent of their total Pacific whiting allocation (19,334 mt out of 87,044 mt). Over the past 6 years, (2011-2016) by June 11th of each year, the MS sector has harvested an average of 0.84 mt of darkblotched rockfish, 1.65 mt of POP, and 14,689.21 mt of Pacific whiting.

Based on the GMT's analysis, as of June 11, 2017, the C/P sector had attained 26 percent of their total darkblotched rockfish allocation (4.3 mt out of 16.4 mt), 51.1 percent of their total POP allocation (8.3 mt out of 16.2 mt), and 31.9 percent of their total Pacific whiting allocation (39,973.5 mt out of 123,312 mt). Over the past 6 years, (2011-2016) by June 11th of each year, the C/P sector has harvested an average of 1.05 mt of darkblotched rockfish, 1.35 mt of POP, and 31,595.85 mt of Pacific whiting.

On June 20, 2017, NMFS considered additional POP, darkblotched rockfish, and Pacific whiting landing information for the C/P and MS sectors. As of that date, the C/P sector had harvested 28.6 percent (4.69 mt out of 16.4 mt) of their total darkblotched rockfish allocation, 89.81 percent (14.55 mt out of 16.2 mt) of their total POP allocation, and 37.64 percent (46,413.13 mt out of 123,312 mt) of their total Pacific whiting allocation. Additionally, as of the same date, the MS sector had harvested 8.56 percent (1.01 mt out of 11.8 mt) of their total darkblotched rockfish allocation, 22.64 percent (2.83 mt out of 12.5 mt) of their total POP allocation, and 27.48 percent (23,921.03 mt out of 87,044 mt) of their total Pacific whiting allocation.

To continue to accommodate movement of the at-sea fleets farther north, away from Klamath River Chinook and into waters with historically higher catch rates of POP, both sectors would need additional darkblotched rockfish and POP quota to prevent their fishery from closing due to exceeding their overfished species allocations. The Council's intent is to provide fisheries with a demonstrated need access to quota that would otherwise go unharvested, maintain 2017 harvesting opportunities for the MS and C/P sectors of the Pacific whiting fishery, and continue protecting Klamath River Chinook.

Therefore, after reviewing the best available information on interactions between the Pacific whiting fleet and salmon, POP, and darkblotched rockfish, the Council recommended and NMFS is implementing a distribution of 25 mt of POP, from the off-the-top deductions that were made at the start of the 2017-2018 biennium, to the MS and C/P sectors, 12.5 mt to each sector, to accommodate potential catch of POP as each sector prosecutes their 2017 Pacific whiting allocations in areas where bycatch of Klamath River Chinook is less likely. Additionally, the Council recommended and NMFS is implementing a distribution of 50 mt of darkblotched rockfish, from the “off-the-top” deductions that were made at the start of the 2017-2018 biennium, to the MS and C/P sectors, 25 mt to each sector, to accommodate potential catch of darkblotched rockfish as each sector prosecutes their 2017 Pacific whiting harvest in areas where bycatch of Klamath River Chinook is less likely. These changes are implemented through modifications to the footnotes for Table 1a and Table 1b to Part 660, Subpart C of the CFR.

This rule distributes 25 mt of POP and 50 mt of darkblotched rockfish that is anticipated to go unharvested through the end of 2017 to the MS and C/P sectors, implementing the Council's recommendation increases the POP allocations to 25 mt for the MS sector and 28.7 mt for the C/P sector and the darkblotched rockfish set-asides to 36.8 mt for the MS sector and 41.4 mt for the C/P sector. This rule also provides the fleet added flexibility to fish in areas where Klamath River Chinook are less likely to be encountered while reducing the risk of closure of the MS and C/P sectors prior to full attainment of the Pacific whiting allocation if higher catch rates of POP and darkblotched rockfish continue for the remainder of the 2017 fishing season. Transfer of POP and darkblotched rockfish to the MS and C/P sectors, when combined with projected impacts from all other sources, is not expected to result in greater impacts to POP, darkblotched rockfish, or other overfished species than originally projected through the end of the year.

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, West Coast Region, NMFS, during business hours.

NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective July 3, 2017. The adjustments to management measures in this document affect commercial fisheries in Washington, Oregon and California. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2017-18.

Accordingly, for the reasons stated below, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.

At its June 2017 meeting, the Council recommended an increase to LE and OA fixed gear lingcod trip limits north and south of 40°10′ N. lat. be implemented as quickly as possible to allow harvest of lingcod to better attain, but not exceed, the 2017 ACLs. There was not sufficient time after that meeting to undergo proposed and final rulemaking before this action needs to be in effect. Affording the time necessary for prior notice and opportunity for public comment would prevent NMFS from managing the LE and OA fixed gear fishery using the best available science to increase harvesting opportunities without exceeding the ACLs for federally managed species in accordance with the PCGFMP and applicable law. These increases to trip limits must be implemented as quickly as possible to allow LE and OA fixed gear fishermen an opportunity to harvest higher limits for lingcod coastwide.

It is in the public interest for fishermen to have an opportunity to harvest more of the lingcod ACLs, north and south of 40°10′ N. lat., because the lingcod fishery contributes revenue to the coastal communities of Washington, Oregon, and California. This action, if implemented quickly, is anticipated to allow increased catch of lingcod through the end of the year, and allows harvest as intended by the Council, consistent with the best scientific information available.

The Council considered updated discard mortality rates and the resulting best available projections of yelloweye rockfish harvest that became available at its June 2017 meeting. Projected impacts to yelloweye rockfish through the end of the year were 0.7 mt below the nearshore fishery's 2.1 mt share of the non-trawl allocation. Based on the new information showing lower than anticipated yelloweye rockfish discard mortality, and the need to provide additional harvesting opportunities for healthy and underutilized groundfish species, the Council recommended modifying the shoreward boundary of the non-trawl RCA to open additional area, while keeping harvest of yelloweye rockfish within its HGs and rebuilding ACL.

It is in the public interest for fisherman to have increased access to fishing areas where high-value target species, such as canary and chilipepper rockfish, are available, because the commercial non-trawl fisheries contribute revenue to the coastal communities of Washington, Oregon, and California. This action, if implemented quickly, is anticipated to allow increased catch of healthy and underutilized groundfish, and allows harvest as intended by the Council, consistent with the best scientific information available.

At its June 2017 meeting, the Council recommended that the distribution of POP and darkblotched rockfish “buffers” to the MS and C/P sectors and be implemented as quickly as possible to facilitate fishing for Pacific whiting in northern waters to avoid bycatch of Klamath River Chinook salmon. There was not sufficient time after that meeting to undergo proposed and final rulemaking before this action needs to be in effect. Affording the time necessary for prior notice and opportunity for public comment would postpone transfer of POP and darkblotched rockfish to the MS and C/P sectors until later in the season, or potentially eliminate the possibility or doing so during the 2017 calendar year entirely, and is therefore impractical. Failing to reapportion POP and darkblotched rockfish to the MS and C/P sectors in a timely manner could result in additional impacts to Klamath River Chinook salmon if catch of POP or darkblotched rockfish approaches the MS or C/P sectors' POP and darkblotched rockfish allocations and the fleet moves south to prevent a closure prior to their Pacific whiting allocations being harvested. Additionally, failing to reapportion the POP and darkblotched rockfish “buffers” in a timely manner could leave quota unharvested through the end of the year, which would prevent harvest as intended by the Council. New information and analyses that became available to the Council in June indicate that both the MS and C/P sectors need additional POP and darkblotched rockfish to decrease the likelihood of closing one or more of these sectors due to attainment of their rockfish allocations. Therefore, distribution of the POP and darkblotched rockfish buffers is consistent with regulations at § 660.60(c)(3)(ii).

It is in the public interest for the MS and C/P sectors to have an opportunity to harvest their allocations of Pacific whiting without interruption because the Pacific whiting fishery contributes a large amount of revenue to the coastal communities of Washington and Oregon. Additionally, it is in the public interest to continue to protect Klamath River Chinook and reduce potential fishing impacts from the Pacific whiting fishery in areas where directed salmon fishing has been prohibited. Providing more POP and darkblotched rockfish to the MS and C/P sector would allow them to fish further north, lowering the chances of encountering Klamath River Chinook. This action facilitates fleet dynamics to avoid bycatch of Klamath River Chinook salmon, and allows harvest as intended by the Council, consistent with the best scientific information available.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: