Federal Register Vol. 82, No.189,

Federal Register Volume 82, Issue 189 (October 2, 2017)

Page Range45679-45954
FR Document

82_FR_189
Current View
Page and SubjectPDF
82 FR 45710 - Airworthiness Directives; Siemens S.A.S. Smoke DetectorsPDF
82 FR 45721 - Establishment of Restricted Area R-2306F; Yuma Proving Ground, AZPDF
82 FR 45902 - Sunshine Act MeetingPDF
82 FR 45810 - Uranium From the Russian Federation: Continuation of Suspension of Antidumping InvestigationPDF
82 FR 45859 - Fee for Using a Material Threat Medical Countermeasure Priority Review Voucher in Fiscal Year 2018PDF
82 FR 45921 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Withdrawal of a Proposed Rule Change To Extend the Implementation Date for Certain Changes to the Rule 5700 Series and Rule 5810PDF
82 FR 45951 - Proposed Collection; Comment Request for Residence and Source Rules Involving U.S. Possessions and Other Conforming Changes (T.D. 9248)PDF
82 FR 45948 - Proposed Collection; Comment Request for Compensatory Stock Options Under Section 482 (T.D. 9088)PDF
82 FR 45949 - Proposed Collection; Comment Request for Revenue Procedure 2003-84PDF
82 FR 45907 - Sunshine Act MeetingsPDF
82 FR 45950 - Proposed Collection; Comment Request for Form CT-1 and CT-1 XPDF
82 FR 45952 - Proposed Collection; Comment Request for Forms 8027 and 8027-TPDF
82 FR 45951 - Proposed Collection: Comment Request for Regulation ProjectPDF
82 FR 45953 - Proposed Collection; Comment Request for Form 8878-APDF
82 FR 45949 - Proposed Collection; Comment Request for Regulation ProjectPDF
82 FR 45953 - Proposed Collection; Comment Request for Form 6765PDF
82 FR 45833 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Annual Protection and Advocacy of Individual Rights (PAIR) Program AssurancesPDF
82 FR 45950 - Proposed Collection; Comment Request for Form 8904PDF
82 FR 45867 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 45869 - Center For Scientific Review; Notice of Closed MeetingsPDF
82 FR 45905 - Notice of Appointments of Individuals To Serve as Members of Performance Review BoardsPDF
82 FR 45793 - Refuge-Specific Regulation; Public Use; Kenai National Wildlife RefugePDF
82 FR 45846 - Casmalia Resources Superfund Site; Notice of Proposed CERCLA Administrative De Minimis SettlementPDF
82 FR 45876 - Texas; Amendment No. 9 to Notice of a Major Disaster DeclarationPDF
82 FR 45842 - Office of Research and Development; Ambient Air Monitoring Reference and Equivalent Methods: Designation of One New Reference MethodPDF
82 FR 45874 - Vermont; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
82 FR 45843 - Agency Information Collection Activities; Proposed Collection; Comment Request; Implementation of the 2008 Ozone National Ambient Air Quality Standards for Ozone; State Implementation Plan Requirements, EPA ICR No. 2347.03, OMB Control No. 2060-0695PDF
82 FR 45842 - Proposed First Amendment to CERCLA Administrative Settlement Agreement and Order on Consent; Great Lakes Container Corporation Superfund Site, Coventry, Rhode IslandPDF
82 FR 45877 - Florida; Amendment No. 9 to Notice of a Major Disaster DeclarationPDF
82 FR 45876 - Alabama; Amendment No. 1 to Notice of an Emergency DeclarationPDF
82 FR 45730 - Fluoxastrobin; Pesticide TolerancesPDF
82 FR 45736 - Hazardous Waste Management System; Identification and Listing of Hazardous WastePDF
82 FR 45833 - Notice of Cancellation of Meeting of Marine Corps University Board of VisitorsPDF
82 FR 45845 - Notice of Final NPDES General Permit; Final NPDES General Permit for New and Existing Sources and New Dischargers in the Offshore Subcategory of the Oil and Gas Extraction Category for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico (GMG290000)PDF
82 FR 45832 - Notice of Intent To Grant an Exclusive License; Radco Industries, Inc.PDF
82 FR 45796 - Availability of an Environmental Assessment for the Biological Control of Yellow ToadflaxPDF
82 FR 45874 - Puerto Rico; Emergency and Related DeterminationsPDF
82 FR 45875 - Alabama; Emergency and Related DeterminationsPDF
82 FR 45804 - Notice of Public Availability of the Broadcasting Board of Governors FY-2015 Service Contract Analysis and FY-2016 Service Contract InventoryPDF
82 FR 45750 - Notification of Regulatory ReviewPDF
82 FR 45884 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Forms To Determine Compliance by Certain Landholders, 43 CFR Part 426PDF
82 FR 45888 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; “Individual Landholder's and Farm Operator's Certification and Reporting Forms for Acreage Limitation, 43 CFR Part 426 and 43 CFR Part 428”PDF
82 FR 45886 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Certification Summary Form and Reporting Summary Form for Acreage Limitation, 43 CFR Part 426 and 43 CFR Part 428PDF
82 FR 45722 - Regulation Crowdfunding and Regulation A Relief and Assistance for Victims of Hurricane Harvey, Hurricane Irma, and Hurricane MariaPDF
82 FR 45771 - Ex Parte Communications in Informal Rulemaking ProceedingsPDF
82 FR 45888 - Glen Canyon Dam Adaptive Management Work Group Charter RenewalPDF
82 FR 45811 - National Sea Grant Advisory Board; Public Meeting of the National Sea Grant Advisory Board's Fall 2017 MeetingPDF
82 FR 45882 - 30-Day Notice of Proposed Information Collection: Request for Prepayment of Section 202 or 202/8 Direct Loan ProjectPDF
82 FR 45876 - North Dakota; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
82 FR 45881 - 30-Day Notice of Proposed Information Collection: HUD Environmental Review Online System (HEROS)PDF
82 FR 45876 - Iowa; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
82 FR 45887 - Notice To Reschedule Meeting Dates and Extend Comment Period for the Sites Reservoir Project Draft Environmental Impact Report/Environmental Impact Statement and Draft Feasibility Report, Sites, CaliforniaPDF
82 FR 45805 - Submission for OMB Review; Comment RequestPDF
82 FR 45804 - Submission for OMB Review; Comment RequestPDF
82 FR 45858 - Electronic Study Data Submission; Data Standards; Support for Analysis Data Model Implementation Guide Version 1.1PDF
82 FR 45913 - New Postal ProductsPDF
82 FR 45861 - Classification and Requirements for Laser Illuminated Projectors (Laser Notice No. 57); Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
82 FR 45853 - Display Devices for Diagnostic Radiology; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
82 FR 45854 - Marketing Clearance of Diagnostic Ultrasound Systems and Transducers; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
82 FR 45834 - Agency Information Collection Extension, With ChangesPDF
82 FR 45877 - Notice of Regulatory Waiver Requests Granted for the Second Quarter of Calendar Year 2017PDF
82 FR 45725 - Medical Devices; Gastroenterology-Urology Devices; Classification of the High Intensity Ultrasound System for Prostate Tissue AblationPDF
82 FR 45779 - Endangered and Threatened Wildlife and Plants; Removing Astragalus desereticus (Deseret Milkvetch) From the Federal List of Endangered and Threatened PlantsPDF
82 FR 45828 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Submarine Base New London Pier ConstructionPDF
82 FR 45679 - Rules Regarding Availability of InformationPDF
82 FR 45888 - Colorado River Basin Salinity Control Advisory Council Notice of Public MeetingPDF
82 FR 45728 - Drawbridge Operation Regulation; Pequonnock River, Bridgeport, CTPDF
82 FR 45728 - Drawbridge Operation Regulation; Plum Island River, Newbury, MAPDF
82 FR 45729 - Drawbridge Operation Regulation; James River, Hopewell, VAPDF
82 FR 45873 - Current List of HHS-Certified Laboratories and Instrumented Initial Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal AgenciesPDF
82 FR 45835 - Before Commissioners: Neil Chatterjee, Chairman; Cheryl A. LaFleur, and Robert F. Powelson; Bonneville Power Administration; Order Approving Rates on an Interim Basis and Providing Opportunity for Additional CommentsPDF
82 FR 45839 - Bonneville Power Administration; Order Approving Rates on an Interim Basis and Providing Opportunity for Additional CommentsPDF
82 FR 45841 - Colorado Interstate Gas Company, LLC'; Notice of ApplicationPDF
82 FR 45940 - Thirty Sixth RTCA SC-216 Aeronautical Systems Security PlenaryPDF
82 FR 45807 - 100- to 150-Seat Large Civil Aircraft From Canada: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty DeterminationPDF
82 FR 45807 - Foreign-Trade Zone 123-Denver, Colorado; Application for Subzone; Ackerman North America LLC/dba Amann USA, Broomfield, ColoradoPDF
82 FR 45941 - Reports, Forms, and Record Keeping RequirementsPDF
82 FR 45940 - Agency Information Collection Activity Under OMB ReviewPDF
82 FR 45697 - Description of Office, Procedures, and Public InformationPDF
82 FR 45946 - Notice of OFAC Sanctions ActionsPDF
82 FR 45865 - Prospective Modification of Exclusive Patent License Potent and Selective Analogues of: Monamine Transporters; Methods of Making; and Uses ThereofPDF
82 FR 45870 - Proposed Collection; 60-Day Comment Request; A Generic Submission for Formative Research, Pre-testing, Stakeholder (National Cancer Institute)PDF
82 FR 45852 - Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), Subcommittee on Procedures Review (SPR), National Institute for Occupational Safety and Health (NIOSH)PDF
82 FR 45938 - Notice of Submission Deadline for Schedule Information for Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, and San Francisco International Airport for the Summer 2018 Scheduling SeasonPDF
82 FR 45811 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Replacement Project in San Diego, CAPDF
82 FR 45907 - Abnormal Occurrence ReportsPDF
82 FR 45740 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Atka Mackerel in the Bering Sea and Aleutian Islands Management AreaPDF
82 FR 45729 - Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Corn Festival FireworksPDF
82 FR 45894 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
82 FR 45882 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; International Conservation Grant ProgramsPDF
82 FR 45905 - Committee Management; Notice of EstablishmentPDF
82 FR 45897 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Powered Platforms for Building Maintenance StandardPDF
82 FR 45896 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; “Suspension of Pension Benefits Pursuant to Regulations 29 CFR 2530.203-3”PDF
82 FR 45804 - Notice of Public Meeting of the New Hampshire Advisory CommitteePDF
82 FR 45742 - Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 610 in the Gulf of AlaskaPDF
82 FR 45831 - Public Availability of Consumer Product Safety Commission FY 2016 Service Contract InventoryPDF
82 FR 45833 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Talent Search (TS) Annual Performance ReportPDF
82 FR 45795 - Submission for OMB Review; Comment RequestPDF
82 FR 45939 - Petition for Exemption; Summary of Petition ReceivedPDF
82 FR 45837 - Combined Notice of Filings #1PDF
82 FR 45891 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
82 FR 45753 - Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Proposed Extension of Compliance DatesPDF
82 FR 45856 - Equivalence of Complex Products; Public Workshop; Request for CommentsPDF
82 FR 45863 - Leveraging Quantitative Methods and Modeling To Modernize Generic Drug Development and Review; Public Workshop; Request for CommentsPDF
82 FR 45914 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
82 FR 45915 - Product Change-Parcel Select Negotiated Service AgreementPDF
82 FR 45914 - Product Change-Priority Mail Negotiated Service AgreementPDF
82 FR 45890 - Polyethylene Terephthalate (PET) Resin From Brazil, Indonesia, Korea, Pakistan, and Taiwan Institution of Antidumping Duty Investigations and Scheduling of Preliminary Phase InvestigationsPDF
82 FR 45800 - Apache-Sitgreaves National Forests; Apache, Coconino, Greenlee and Navajo Counties, Arizona; Revised Draft Environmental Impact Statement for Public Motorized Travel Management PlanPDF
82 FR 45798 - Nez Perce-Clearwater National Forests; Idaho; Lolo Insect & Disease ProjectPDF
82 FR 45802 - Kemmerer Ranger District; Bridger-Teton National Forest; Wyoming; Kemmerer Grazing and Rangeland Vegetation Management ProjectPDF
82 FR 45762 - Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque and Bernalillo County; Regional Haze Progress Report State Implementation PlanPDF
82 FR 45797 - Happy Camp/Oak Knoll Ranger District; California; Elk Creek Watershed ProjectPDF
82 FR 45946 - Pipeline Safety: Underground Natural Gas Storage Facility Annual ReportPDF
82 FR 45917 - Self-Regulatory Organizations: Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to Listing FeesPDF
82 FR 45915 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Delay the Implementation Date of Certain Amendments to FINRA Rule 4210 Approved Pursuant to SR-FINRA-2015-036PDF
82 FR 45922 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change, as Modified by Amendment No. 1, To Amend NYSE Arca Equities Rule 8.700 to Reference EURO STOXX 50 Volatility Index Futures and To List and Trade Shares of the ProShares European Volatility Futures ETFPDF
82 FR 45906 - Information Collection: Collection of Operator Simulator Training DataPDF
82 FR 45838 - Combined Notice of Filings #2PDF
82 FR 45842 - Combined Notice of Filings #1PDF
82 FR 45868 - Office of the Secretary; Amended Notice of MeetingPDF
82 FR 45829 - Procurement List; Additions and DeletionsPDF
82 FR 45871 - National Institute of Nursing Research; Notice of Closed MeetingPDF
82 FR 45866 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingsPDF
82 FR 45867 - Office of the Secretary; Notice of MeetingPDF
82 FR 45867 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed MeetingsPDF
82 FR 45872 - National Center for Complementary & Integrative Health; Notice of MeetingPDF
82 FR 45871 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 45849 - Submission for OMB Review; Permitting Notice of InitiationPDF
82 FR 45832 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Application Package for AmeriCorps VISTA Concept Paper, Application and Budget Instructions, Project Progress Report and Progress Report Supplement (OMB Control Number 3045-0038)PDF
82 FR 45852 - Information Collection; Statement of Witness, Standard Form 94PDF
82 FR 45899 - International Association of Plumbing and Mechanical Officials EGS: Grant of Expansion of RecognitionPDF
82 FR 45900 - General Working Conditions in Shipyard Employment; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
82 FR 45898 - TUV Rheinland of North America, Inc.: Grant of Expansion of RecognitionPDF
82 FR 45898 - Data Users Advisory Committee; Notice of Meeting and AgendaPDF
82 FR 45904 - Earth Science Advisory Committee; MeetingPDF
82 FR 45895 - Labor Surplus Area ClassificationPDF
82 FR 45922 - Joint Industry Plan; Notice of Filing and Immediate Effectiveness of the Fifteenth Amendment to the National Market System Plan To Address Extraordinary Market Volatility by Bats BZX Exchange, Inc., Bats BYX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc., Investors Exchange LLC, NASDAQ BX, Inc., NASDAQ PHLX LLC, The Nasdaq Stock Market LLC, NYSE National, Inc., New York Stock Exchange LLC, NYSE American LLC, and NYSE Arca, Inc.PDF
82 FR 45850 - Privacy Act of 1974; System of RecordsPDF
82 FR 45892 - Silicomanganese From China and Ukraine: Institution of Five-Year ReviewsPDF
82 FR 45938 - Twenty-Fourth RTCA SC-223 IPS and AeroMACS PlenaryPDF
82 FR 45938 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: Exhibition of Two Impressionist-Era PaintingsPDF
82 FR 45937 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Terracotta Army: Legacy of the First Emperor of China” ExhibitionPDF
82 FR 45937 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “David Hockney” ExhibitionPDF
82 FR 45749 - Proposed Revocation of Class E Airspace; Pulaski, WIPDF
82 FR 45747 - Proposed Revocation of Class E Airspace; Centerville, MDPDF
82 FR 45714 - Amendment of Class E Airspace; Wellsboro, PAPDF
82 FR 45716 - Establishment of Class E Airspace; Columbia, MSPDF
82 FR 45847 - Proposed Agency Information Collection Activities; Comment RequestPDF
82 FR 45721 - Establishment of Temporary Restricted Area R-5602; Fort Sill, OKPDF
82 FR 45756 - Authority of Health Care Providers To Practice TelehealthPDF
82 FR 45883 - Wild Horse and Burro Advisory Board MeetingPDF
82 FR 45806 - Notice of Availability of a Final Programmatic Environmental Impact Statement for the South Region of the Nationwide Public Safety Broadband NetworkPDF
82 FR 45912 - Proposed Submission of Information Collection for OMB Review; Comment Request; Termination of Single-Employer Plans, Missing ParticipantsPDF
82 FR 45809 - Steel Concrete Reinforcing Bar From Taiwan: Antidumping Duty OrderPDF
82 FR 45719 - Amendment of Class E Airspace; Wellington, KSPDF
82 FR 45713 - Amendment of Class E Airspace; Windsor Locks, CTPDF
82 FR 45717 - Amendment of Class D and Class E Airspace; New Bern, NCPDF
82 FR 45720 - Establishment of Class E Airspace; Ellendale, NDPDF
82 FR 45715 - Amendment of Class E Airspace; Hot Springs, VAPDF
82 FR 45705 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF
82 FR 45703 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
82 FR 45905 - Notice of Information CollectionPDF
82 FR 45701 - Airworthiness Directives; Dassault Aviation AirplanesPDF
82 FR 45697 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 45743 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 45680 - Equal Credit Opportunity Act (Regulation B) Ethnicity and Race Information CollectionPDF

Issue

82 189 Monday, October 2, 2017 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Forest Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45795-45796 2017-21023 2017-21024
Animal Animal and Plant Health Inspection Service NOTICES Environmental Assessments; Availability, etc.: Biological Control of Yellow Toadflax, 45796-45797 2017-21105 Broadcasting Broadcasting Board of Governors NOTICES Fiscal Year 2015 Service Contract Analysis and Fiscal Year 2016 Service Contract Inventory, 45804 2017-21102 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Equal Credit Opportunity Act Ethnicity and Race Information Collection, 45680-45697 2017-20417 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Subcommittee on Procedures Review of the Advisory Board on Radiation and Worker Health, 45852-45853 2017-21046 Civil Rights Civil Rights Commission NOTICES Meetings: New Hampshire Advisory Committee, 45804 2017-21034 Coast Guard Coast Guard RULES Drawbridge Operations: James River, Hopewell, VA, 45729 2017-21066 Pequonnock River, Bridgeport, CT, 45728 2017-21068 Plum Island River, Newbury, MA, 45728 2017-21067 Safety Zones: Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone—Corn Festival Fireworks, 45729 2017-21041 Commerce Commerce Department See

First Responder Network Authority

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45804-45806 2017-20976 2017-21082 2017-21083
Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 45829-45831 2017-20993 Consumer Product Consumer Product Safety Commission NOTICES FY 2016 Service Contract Inventory, 45831-45832 2017-21029 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application Package for AmeriCorps VISTA Concept Paper, Application and Budget Instructions, Project Progress Report and Progress Report Supplement, 45832 2017-20984 Defense Department Defense Department See

Navy Department

Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Protection and Advocacy of Individual Rights Program Assurances, 45833-45834 2017-21143 Talent Search Annual Performance Report, 45833 2017-21027 Employment and Training Employment and Training Administration NOTICES Labor Surplus Area Classification, 45895-45896 2017-20977 Energy Department Energy Department See

Energy Information Administration

See

Federal Energy Regulatory Commission

Energy Information Energy Information Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45834-45835 2017-21076 Environmental Protection Environmental Protection Agency RULES Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45736-45740 2017-21112 Pesticide Tolerances: Fluoxastrobin, 45730-45736 2017-21113 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: New Mexico; Albuquerque and Bernalillo County; Regional Haze Progress Report State Implementation Plan, 45762-45771 2017-21006 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Implementation of the 2008 Ozone National Ambient Air Quality Standards for Ozone; State Implementation Plan Requirements, 45843-45845 2017-21117 Ambient Air Monitoring Reference and Equivalent Methods: Designation of One New Reference Method, 45842-45843 2017-21119 CERCLA Administrative Settlement Agreements and Orders on Consent: Great Lakes Container Corp. Superfund Site, Coventry, RI, 45842 2017-21116 National Pollutant Discharge Elimination System Permits: New and Existing Sources and New Dischargers in the Offshore Subcategory of the Oil and Gas Extraction Category for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico, 45845-45846 2017-21108 Proposed CERCLA Administrative De Minimis Settlements: Casmalia Resources Superfund Site, 45846-45847 2017-21123 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Bombardier, Inc., Airplanes, 45703-45705 2017-20824 Dassault Aviation Airplanes, 45701-45703 2017-20691 Gulfstream Aerospace Corporation Airplanes, 45705-45710 2017-20831 Siemens S.A.S. Smoke Detectors, 45710-45712 R1--2017--20425 The Boeing Company Airplanes, 45697-45701 2017-20689 Amendment of Class D and Class E Airspace: New Bern, NC, 45717-45719 2017-20845 Amendment of Class E Airspace: Hot Springs, VA, 45715-45716 2017-20841 Wellington, KS, 45719-45720 2017-20850 Wellsboro, PA, 45714-45715 2017-20957 Windsor Locks, CT, 45713-45714 2017-20848 Establishment of Class E Airspace: Columbia, MS, 45716-45717 2017-20956 Ellendale, ND, 45720-45721 2017-20843 Establishment of Restricted Area: R-2306F; Yuma Proving Ground, AZ, 45721 C1--2017--20590 Temporary Restricted Areas: Fort Sill, OK, 45721-45722 2017-20954 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 45743-45747 2017-20560 Revocation of Class E Airspace: Centerville, MD, 45747-45749 2017-20958 Pulaski, WI, 45749-45750 2017-20959 NOTICES Meetings: Thirty Sixth RTCA SC-216 Aeronautical Systems Security Plenary, 45940 2017-21057 Twenty Fourth RTCA SC-223 IPS and AeroMACS Plenary, 45938 2017-20968 Petitions for Exemptions; Summaries, 45939-45940 2017-21022 Submission Deadlines for Schedule Information: Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, and San Francisco International Airport; Summer 2018 Scheduling Season, 45938-45939 2017-21045 Federal Emergency Federal Emergency Management Agency NOTICES Emergency and Related Determinations: Alabama, 45875 2017-21103 Puerto Rico, 45874-45875 2017-21104 Emergency Declarations: Alabama; Amendment No. 1, 45876 2017-21114 Major Disaster Declarations: Florida; Amendment No. 9, 45877 2017-21115 Iowa; Amendment No. 2, 45876 2017-21086 North Dakota; Amendment No. 1, 45876 2017-21088 Texas; Amendment No. 9, 45876-45877 2017-21120 Vermont; Amendment No. 1, 45874 2017-21118 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Colorado Interstate Gas Company, LLC, 45841 2017-21059 Combined Filings, 45837-45839, 45842 2017-20995 2017-20996 2017-20997 2017-20998 2017-21021 Rate Approvals, 45835-45837, 45839-45841 2017-21060 2017-21061 Federal Financial Federal Financial Institutions Examination Council RULES Description of Office, Procedures, and Public Information, 45697 2017-21050 Federal Reserve Federal Reserve System RULES Rules Regarding Availability of Information, 45679-45680 2017-21071 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45847-45849 2017-20955 Federal Transit Federal Transit Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45940-45941 2017-21051 FIRSTNET First Responder Network Authority NOTICES Environmental Impact Statements; Availability, etc.: South Region of the Nationwide Public Safety Broadband Network, 45806-45807 2017-20933 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Removing Astragalus desereticus From the Federal List of Endangered and Threatened Plants, 45779-45793 2017-21073 Refuge-Specific Regulations: Kenai National Wildlife Refuge, 45793-45794 2017-21124 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: International Conservation Grant Programs, 45882-45883 2017-21038 Food and Drug Food and Drug Administration RULES Medical Devices: Gastroenterology-Urology Devices; Classification of the High Intensity Ultrasound System for Prostate Tissue Ablation, 45725-45727 2017-21074 PROPOSED RULES Food Labeling: Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling, 45753-45756 2017-21019 NOTICES Fee for Using a Material Threat Medical Countermeasure Priority Review Voucher in Fiscal Year 2018, 45859-45861 2017-21191 Guidance: Classification and Requirements for Laser Illuminated Projectors, 45861-45863 2017-21079 Display Devices for Diagnostic Radiology, 45853-45854 2017-21078 Electronic Study Data Submission; Data Standards; Support for Analysis Data Model Implementation Guide Version 1.1, 45858-45859 2017-21081 Marketing Clearance of Diagnostic Ultrasound Systems and Transducers, 45854-45856 2017-21077 Meetings: Equivalence of Complex Products; Public Workshop, 45856-45858 2017-21018 Leveraging Quantitative Methods and Modeling to Modernize Generic Drug Development and Review; Public Workshop, 45863-45865 2017-21017 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 45946-45948 2017-21049 Foreign Trade Foreign-Trade Zones Board NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: 100-to 150-Seat Large Civil Aircraft From Canada, 45807-45809 2017-21055 Subzone Applications: Ackerman North America LLC/dba Amann USA, Foreign-Trade Zone 123, Denver, CO, 45807 2017-21054 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Elk Creek Watershed Project; Happy Camp/Oak Knoll Ranger District; CA, 45797-45798 2017-21005 Kemmerer Grazing and Rangeland Vegetation Management Project, Kemmerer Ranger District, Bridger-Teton National Forest, WY, 45802-45804 2017-21007 Lolo Insect and Disease Project; Nez Perce-Clearwater National Forests; ID, 45798-45800 2017-21008 Public Motorized Travel Management Plan, Apache-Sitgreaves National Forests, Apache, Coconino, Greenlee and Navajo Counties, AZ, 45800-45802 2017-21009 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Permitting Notice of Initiation, 45849 2017-20985 Statement of Witness, 45852 2017-20983 Privacy Act; Systems of Records, 45850-45851 2017-20972 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: HUD Environmental Review Online System, 45881-45882 2017-21087 Request for Prepayment of Section 202 or 202/8 Direct Loan Project, 45882 2017-21089 Regulatory Waiver Requests; Granted: Second Quarter of Calendar Year 2017, 45877-45881 2017-21075 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

Reclamation Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45948-45954 2017-21146 2017-21147 2017-21148 2017-21149 2017-21152 2017-21153 2017-21154 2017-21141 2017-21144 2017-21145 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Steel Concrete Reinforcing Bar From Taiwan, 45809-45810 2017-20925 Uranium From the Russian Federation, 45810-45811 2017-21211 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Polyethylene Terephthalate Resin From Brazil, Indonesia, Korea, Pakistan, and Taiwan, 45890-45891 2017-21010 Silicomanganese From China and Ukraine; Institution of Five-Year Reviews, 45892-45894 2017-20971 Complaints: Certain Gas Spring Nailer Products and Components Thereof, 45891-45892 2017-21020 Justice Department Justice Department NOTICES Proposed Consent Decrees Under CERCLA, 45894-45895 2017-21040 Labor Department Labor Department See

Employment and Training Administration

See

Labor Statistics Bureau

See

Occupational Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Powered Platforms for Building Maintenance Standard, 45897-45898 2017-21036 Suspension of Pension Benefits Pursuant to Regulations, 45896-45897 2017-21035
Labor Statistics Labor Statistics Bureau NOTICES Meetings: Data Users Advisory Committee, 45898 2017-20979 Land Land Management Bureau NOTICES Meetings: Wild Horse and Burro Advisory Board, 45883-45884 2017-20935 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 45902-45904 2017-21261 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45905 2017-20772 Meetings: Earth Science Advisory Committee, 45904 2017-20978 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45941-45946 2017-21053 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Submission for Formative Research, Pre-testing, Stakeholder, 45870-45871 2017-21047 Exclusive Patent Licenses: Monamine Transporters; Methods of Making; and Uses Thereof, 45865-45866 2017-21048 Meetings: Center for Scientific Review, 45867-45872 2017-20986 2017-21134 2017-21135 Muscular Dystrophy Coordinating Committee, 45867 2017-20990 National Center for Complementary and Integrative Health, 45872-45873 2017-20987 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 45867 2017-20989 National Institute of Neurological Disorders and Stroke, 45866-45867 2017-20991 National Institute of Nursing Research, 45871 2017-20992 Task Force on Research Specific to Pregnant Women and Lactating Women, 45868-45869 2017-20994 National Labor National Labor Relations Board NOTICES Member Appointments: Performance Review Boards, 45905 2017-21127 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pollock in Statistical Area 610 in the Gulf of Alaska, 45742 2017-21031 Reallocation of Atka mackerel in the Bering Sea and Aleutian Islands Management Area, 45740-45742 2017-21042 NOTICES Meetings: National Sea Grant Advisory Board, 45811 2017-21090 Takes of Marine Mammals: Incidental to a Pier Replacement Project in San Diego, CA, 45811-45828 2017-21044 Taking and Importing Marine Mammals: Incidental to U.S. Navy Submarine Base New London Pier Construction, 45828-45829 2017-21072 National Science National Science Foundation NOTICES Committee Establishments: STEM Education Advisory Panel, 45905-45906 2017-21037 National Telecommunications National Telecommunications and Information Administration NOTICES Environmental Impact Statements; Availability, etc.: South Region of the Nationwide Public Safety Broadband Network, 45806-45807 2017-20933 Navy Navy Department NOTICES Exclusive Licenses; Approvals: Radco Industries, Inc., 45832-45833 2017-21107 Meetings: Marine Corps University Board of Visitors; Cancellation, 45833 2017-21110 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Abnormal Occurrence Reports, 45907-45912 2017-21043 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Collection of Operator Simulator Training Data, 45906-45907 2017-20999 Meetings; Sunshine Act, 45907 2017-21151 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: General Working Conditions in Shipyard Employment, 45900-45902 2017-20981 Nationally Recognized Testing Laboratories: International Association of Plumbing and Mechanical Officials EGS, 45899-45900 2017-20982 TUV Rheinland of North America, Inc., 45898-45899 2017-20980 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Termination of Single-Employer Plans, Missing Participants, 45912-45913 2017-20927 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Pipeline Safety: Underground Natural Gas Storage Facility Annual Report, 45946 2017-21004 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 45913-45914 2017-21080 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 45914 2017-21016 Parcel Select Negotiated Service Agreement, 45915 2017-21015 Priority Mail Negotiated Service Agreement, 45914-45915 2017-21011 2017-21012 2017-21013 2017-21014 Reclamation Reclamation Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification Summary Form and Reporting Summary Form for Acreage Limitation, 45886-45887 2017-21095 Forms To Determine Compliance by Certain Landholders, 45884-45886 2017-21098 Individual Landholder's and Farm Operator's Certification and Reporting Forms for Acreage Limitation, 45888-45890 2017-21096 Charter Renewals: Glen Canyon Dam Adaptive Management Work Group, 45888 2017-21091 Meetings: Colorado River Basin Salinity Control Advisory Council, 45888 2017-21070 Sites Reservoir Project Draft Environmental Impact Report/Environmental Impact Statement and Draft Feasibility Report, Sites, California, 45887 2017-21084 Securities Securities and Exchange Commission RULES Regulation Crowdfunding and Regulation A Relief and Assistance for Victims of Hurricane Harvey, Hurricane Irma, and Hurricane Maria, 45722-45725 2017-21094 NOTICES Joint Industry Plans: Bats BZX Exchange, Inc., Bats BYX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., Chicago Stock Exchange, Inc., et al., 45922-45937 2017-20974 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 45915-45917 2017-21001 Investors Exchange LLC, 45917-45921 2017-21002 NASDAQ Stock Market LLC, 45921 2017-21159 NYSE Arca, Inc., 45922 2017-21000 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: David Hockney, 45937 2017-20960 Exhibition of Two Impressionist-era Paintings, 45938 2017-20962 Terracotta Army: Legacy of the First Emperor of China, 45937 2017-20961 Substance Substance Abuse and Mental Health Services Administration NOTICES HHS-Certified Laboratories and Instrumented Initial Testing Facilities: List of Facilities That Meet Minimum Standards To Engage in Urine Drug Testing for Federal Agencies, 45873-45874 2017-21064 Surface Transportation Surface Transportation Board PROPOSED RULES Ex Parte Communications in Informal Rulemaking Proceedings, 45771-45779 2017-21093 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Transit Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

PROPOSED RULES Regulatory Review, 45750-45753 2017-21101
Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department PROPOSED RULES Authority of Health Care Providers To Practice Telehealth, 45756-45762 2017-20951 Reader Aids

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

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

82 189 Monday, October 2, 2017 Rules and Regulations FEDERAL RESERVE SYSTEM 12 CFR Part 271 Rules Regarding Availability of Information AGENCY:

Federal Open Market Committee, Federal Reserve System.

ACTION:

Final rule.

SUMMARY:

The Federal Open Market Committee (“Committee”) is finalizing its interim final rule amending the Committee's regulations under the Freedom of Information Act (“FOIA”). The FOIA Improvement Act of 2016 (“Improvement Act”) amended the FOIA and required each federal agency to review its FOIA regulations and to issue certain revisions by December 27, 2016. Substantive revisions to the Committee's Rules Regarding Availability of Information (“Rules”) were made to conform to the Improvement Act, and the Committee made other technical changes to the Rules in order to clarify the existing procedures for requesting information and to update contact information. The interim final rule became effective on December 27, 2016. This rulemaking finalizes the interim rule with minor edits for consistency and clarification.

DATES:

This final rule is effective on November 1, 2017.

FOR FURTHER INFORMATION CONTACT:

Matthew M. Luecke, Deputy Secretary, (202) 452-2576, Federal Open Market Committee, 20th Street and Constitution Avenue NW., Washington, DC 20551; or Amory Goldberg, Counsel, (202) 452-3124, Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551. Users of Telecommunications Device for Deaf (TDD) only, please call (202) 263-4869.

SUPPLEMENTARY INFORMATION:

I. Overview of Final Rule

On December 27, 2016, the Committee published an interim final rule 1 amending its existing Rules found at 12 CFR part 271, in order to comply with the statutory changes required by the FOIA Improvement Act of 2016 (“Improvement Act”).2 Substantive amendments to the Committee's Rules, which were required by the Improvement Act, included revising the Committee's procedures for disclosing records under the FOIA, assessing fees, and notifying requestors of options for resolving disputes through the Committee's FOIA Public Liaison and the Office of Government Information Services (“OGIS”) within the National Archives and Records Administration. In addition, the Committee made certain technical changes to the Rules to make the FOIA process easier for the public to navigate, such as making certain provisions clearer (removing obsolete language) and informing the public of additional electronic methods for submitting FOIA requests and administrative appeals. The interim final rule became effective on December 27, 2016, and the Committee accepted comments through February 27, 2017. The Committee is finalizing the interim rule with minor changes to paragraph (h)(3) of section 271.6 in response to a public comment.

1 81 FR 94934 (Dec. 27, 2016).

2 Public Law 114-185, 130 Stat. 538 (enacted June 30, 2016).

II. Summary of Public Comments and Final Rule

Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments on the interim final rule during the open comment period. The Committee received one comment on the interim final rule from OGIS. OGIS asked the Committee to revise paragraph (h)(3) of section 271.6 of the Rules to require that a determination letter on an appeal inform appellants of the availability of OGIS's dispute resolution services. Although not required by the FOIA statute, this change is consistent with guidance issued by the Department of Justice's Office of Information Policy. Accordingly, the Committee has determined to edit the language in paragraph (h)(3) of section 271.6 to notify an appealing party of the availability of OGIS's dispute resolution services as a nonexclusive alternative to litigation.

The Committee has determined not to adopt two other suggestions by OGIS. OGIS's proposed amendment would add a statement that “[d]ispute resolution is a voluntary process.” This sentence appears to be unnecessary and repetitive given that the Committee is already advising appellants that dispute resolution services are available as a “nonexclusive alternative to litigation.” OGIS also proposed language stating that the Committee will “actively engage as a partner to the process in an attempt to resolve the dispute” if the Committee participates in the OGIS dispute resolution process. Although active engagement in attempting to resolve a FOIA dispute is of course not unreasonable, the proposed sentence could create additional legal obligations not required under the FOIA or by the statutory amendments to the FOIA. Accordingly, aside from adding in language regarding the availability of OGIS's dispute resolution services as a nonexclusive alternative to litigation, the Committee is adopting section 271.6(h)(3) in the final rule without any further change.

III. Regulatory Requirements

As the Committee noted in publishing the interim final rule, Congress required that the substantive changes to the Committee's Rules under the Improvement Act become effective by December 27, 2016, and the other amendments to the Committee's Rules were technical in nature. Thus, the Committee determined that the prior notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. 553(b), did not apply to the rule. Because no notice of proposed rulemaking is required, these regulations are not a “rule” as defined by the Regulatory Flexibility Act, 5 U.S.C. 601(2), and no initial or final regulatory flexibility analysis is required.

List of Subjects in 12 CFR Part 271

Federal Open Market Committee, Freedom of information.

Authority and Issuance

For the reasons set forth in the SUPPLEMENTARY INFORMATION, the Committee is adopting the interim final rule published on December 27, 2016, at 81 FR 94934, as final with the following change:

PART 271—RULES REGARDING AVAILABILITY OF INFORMATION 1. The authority citation for part 271 continues to read as follows: Authority:

5 U.S.C. 552; 12 U.S.C. 263.

2. In § 271.6, paragraph (h)(3) is revised to read as follows:
§ 271.6 Processing requests.

(h) * * *

(3) The Committee, or such member of the Committee as is delegated the authority, shall make a determination regarding any appeal within 20 working days of actual receipt of the appeal by the Secretary. If an adverse determination is upheld on appeal, in whole or in part, the determination letter shall notify the appealing party of the right to seek judicial review and of the availability of dispute resolution services from the Office of Government Information Services as a nonexclusive alternative to litigation.

By order of the Federal Open Market Committee, September 19, 2017. Brian F. Madigan, Secretary, Federal Open Market Committee.
[FR Doc. 2017-21071 Filed 9-29-17; 8:45 am] BILLING CODE 6210-01-P
BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1002 [Docket No. CFPB-2017-0009] RIN 3170-AA65 Equal Credit Opportunity Act (Regulation B) Ethnicity and Race Information Collection AGENCY:

Bureau of Consumer Financial Protection.

ACTION:

Final rule; official interpretation.

SUMMARY:

The Bureau of Consumer Financial Protection (Bureau) is issuing a final rule that amends Regulation B to permit creditors additional flexibility in complying with Regulation B in order to facilitate compliance with Regulation C, adds certain model forms and removes others from Regulation B, and makes various other amendments to Regulation B and its commentary to facilitate the collection and retention of information about the ethnicity, sex, and race of certain mortgage applicants.

DATES:

The rule is effective on January 1, 2018, except that the amendment to Appendix B to Part 1002 revising paragraph 1 and removing the existing “Uniform Residential Loan Application” form in amendatory instruction 6 is effective January 1, 2022.

FOR FURTHER INFORMATION CONTACT:

Shaakira Gold-Ramirez, Paralegal Specialist, Kathryn Lazarev, Counsel, or James Wylie, Senior Counsel, Office of Regulations, at 202-435-7700 or https://www.consumerfinance.gov/policy-compliance/guidance/.

SUPPLEMENTARY INFORMATION: I. Summary of the Final Rule

Regulation B implements the Equal Credit Opportunity Act (ECOA) 1 and, in part, prohibits a creditor from inquiring about the race, color, religion, national origin, or sex of a credit applicant except under certain circumstances.2 Two of these circumstances are a requirement for creditors to collect and retain certain information about applicants for certain dwelling-secured loans under Regulation B § 1002.13 and the similar applicant information that financial institutions are required to collect and report under Regulation C, 12 CFR part 1003, which implements the Home Mortgage Disclosure Act (HMDA).3 Regulation B also includes certain optional model forms for use in complying with certain Regulation B requirements, including a model form for complying with § 1002.13 that is a 2004 version of the Uniform Residential Loan Application (URLA) issued by the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the Enterprises).4

1 15 U.S.C. 1691 et seq., 12 CFR part 1002.

2 12 CFR 1002.5(b).

3 12 CFR 1002.5(a)(2).

4 Appendix B to 12 CFR part 1003.

The HMDA requirement to collect and report applicant information was recently updated through a final rule amending Regulation C, published in October of 2015 (2015 HMDA Final Rule).5 In 2016, the Enterprises issued a new version of the URLA that complies with the 2015 HMDA Final Rule (2016 URLA).6 These changes to Regulation C and the URLA require updates to Regulation B to ensure consistency among regulations and facilitate compliance with Regulation B and Regulation C by financial institutions. To address these issues, the Bureau issued a proposal on March 24, 2017, which was published in the Federal Register on April 4, 2017 (the 2017 ECOA Proposal).7

5 Home Mortgage Disclosure (Regulation C), 80 FR 66128 (Oct. 28, 2015).

6See Fannie Mae, Guide Forms, available at https://www.fanniemae.com/singlefamily/selling-servicing-guide-forms (last visited Sept. 6, 2017) (listing all selling and servicing guide forms); Freddie Mac, “Forms and Documents,” available at http://www.freddiemac.com/singlefamily/guide/ (last visited Sept. 6, 2017) (same).

7 Amendments to Equal Credit Opportunity Act (Regulation B) Ethnicity and Race Information Collection, 82 FR 16307 (Apr. 4, 2017).

The Bureau is now publishing final amendments to Regulation B. The final rule will provide creditors flexibility in complying with Regulation B in order to facilitate compliance with Regulation C and transition to the 2016 URLA. The changes to Regulation B in this rule are summarized briefly in this section and discussed in detail below.

A. Scope

The final rule amends parts of Regulation B, its commentary, and its appendices, and affects when and how a creditor may collect information regarding the applicant's ethnicity, race, and sex. The Regulation B creditors affected by this rule are primarily those creditors making mortgage loans subject to § 1002.13, which applies to purchase and refinance transactions involving an applicant's primary residence. Financial institutions that report under Regulation C, have reported in the prior five years, or may report in the near future may also be affected by this rule. Creditors that utilize model forms from appendix B to Regulation B (the Regulation B appendix) for mortgage loans are also affected by the rule.

B. Changes to Applicant Information Collection for Regulation B Creditors

For Regulation B creditors making mortgage loans subject to § 1002.13, the rule will allow creditors to collect the applicant's information using either the aggregate ethnicity and race categories or disaggregated ethnicity and race categories and subcategories, as set forth in appendix B to Regulation C (the Regulation C appendix) as amended by the 2015 HMDA Final Rule. The rule change therefore will not require Regulation B creditors that are not HMDA reporters (Regulation B-only creditors) to change their § 1002.13 compliance practices, but would allow them to adopt voluntarily new practices for collecting applicant information, including practices that would permit such creditors to transition to the 2016 URLA. Regulation B creditors will also be able to collect voluntarily certain information about applicants for certain mortgage loan scenarios as provided for in § 1002.5(a)(4). These scenarios generally involve types of loans subject to Regulation C where a creditor voluntarily reports information under Regulation C, reported such information in the past five years, or may report such information in the near future.

C. Changes to Applicant Information Collection for HMDA Reporters

Many HMDA reporters are also subject to the collection requirements of § 1002.13. For those HMDA reporters, the rule provides clarity that compliance with applicant information collection under Regulation C generally satisfies similar requirements under Regulation B. HMDA reporters who at some point no longer are required to comply with HMDA can continue to collect certain applicant information as provided for in § 1002.5(a)(4).

D. Changes to Regulation B Model Forms

The rule makes certain changes to the Regulation B appendix. The rule amends the Regulation B appendix to provide two options: A model form for collecting aggregate applicant race and ethnicity information and a cross-reference to the Regulation C appendix model form for collecting disaggregated applicant race and ethnicity information. The rule also removes as outdated the existing version of the URLA contained in the Regulation B appendix, effective January 1, 2022. The rule does not add the 2016 URLA to the Regulation B appendix; that form is subject to a separate Federal Register notice issued by the Bureau acknowledging its compliance with certain provisions of Regulation B.8

8 Status of New Uniform Loan Application and Collection of Expanded Home Mortgage Information About Ethnicity and Race in 2017, 81 FR 66930 (Sept. 29, 2016).

II. Background A. Regulation B and Ethnicity and Race Information Collection

With some exceptions, Regulation B § 1002.5(b) prohibits a creditor from inquiring about the race, color, religion, national origin, or sex of an applicant or any other person (protected applicant-characteristic information) in connection with a credit transaction. Section 1002.5(a)(2) provides several exceptions to that prohibition for information that creditors are required to request for certain dwelling-secured loans under § 1002.13, and for information required by a regulation, order, or agreement issued by or entered into with a court or an enforcement agency to monitor or enforce compliance with ECOA, Regulation B or other Federal or State statutes or regulations, including Regulation C.

Section 1002.13 sets forth rules for collecting information about an applicant's ethnicity, race, sex, marital status, and age under Regulation B. (In this document, “applicant demographic information” refers to information about an applicant's ethnicity, race, or sex information, while “certain protected applicant-characteristic information” refers to all information collected under § 1002.13, including age and marital status.) Under § 1002.13(a)(1), creditors that receive an application for credit primarily for the purchase or refinancing of a dwelling occupied (or to be occupied) by the applicant as a principal residence, where the extension of credit will be secured by the dwelling, must collect certain protected applicant-characteristic information, including specified race and ethnicity categories. These race and ethnicity categories correspond to the Office of Management and Budget (OMB) minimum standards for the classification of Federal data on ethnicity and race.9 Certain of these categories include several more specific race, heritage, nationality, or country of origin groups. For example, Hispanic or Latino as defined by OMB for the 2010 Census refers to a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin.10 Section 1002.13(b) through (c) provides instructions on the manner of collection. Unlike financial institutions covered by Regulation C, creditors subject to § 1002.13 but not to Regulation C are required only to collect and retain, but not to report, the required protected applicant-characteristic information.

9 Revision of the Standards for the Classification of Federal Data on Race and Ethnicity, 62 FR 58782, 5878-90 (Oct. 30, 1997).

10See U.S. Census Bureau, Overview of Race and Hispanic Origin: 2010,” at 2 (Mar. 2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf.

B. 2015 HMDA Final Rule

Regulation C implements HMDA and sets out specific requirements for the collection, recording, reporting, and disclosure of mortgage lending information, including a requirement to collect and report applicant demographic information. In July 2014, the Bureau proposed amendments to Regulation C to implement the Dodd-Frank Act changes to require collection, recording, and reporting of additional information to further HMDA's purposes, and to modernize the manner in which covered institutions report HMDA data.11 The Bureau published a final rule on October 28, 2015, amending Regulation C, with many of the amendments taking effect January 1, 2018.12 (In this document, “current Regulation C” refers to Regulation C prior to January 1, 2018, and “revised Regulation C” refers to Regulation C as it will be in effect on or after January 1, 2018, as amended by the 2015 HMDA Final Rule.) For data collected in or after 2018, the 2015 HMDA Final Rule amends the requirement for collection and reporting of applicant demographic information. Specifically, covered institutions must permit applicants to self-identify their ethnicity and race using certain disaggregated ethnic and racial subcategories such as Mexican, Puerto Rican, or Cuban under the aggregate category Hispanic or Latino. Covered institutions will report the disaggregated information provided by applicants. However, revised Regulation C will not require or permit covered institutions to use the disaggregated subcategories when collecting and reporting the applicant's ethnicity and race based on visual observation or surname.13

11 Home Mortgage Disclosure (Regulation C), 79 FR 51731 (Aug. 29, 2014).

12 80 FR 66128 (Oct. 28, 2015).

13Id. at 66314 (amendments to appendix B to Regulation C, effective January 1, 2018).

Revised Regulation C § 1003.2(g)(1)(v) and 1003.2(g)(2)(ii) also introduces an exclusion from the definition of financial institution, from which the duty to report HMDA data flows, for entities that, among other criteria, originated fewer than 25 closed-end mortgage loans or fewer than 100 open-end lines of credit in either of the two preceding calendar years.14 The Bureau recently adopted amendments to Regulation C that will temporarily increase the threshold for collecting and reporting data on certain loans. Financial institutions originating fewer than 500 open-end lines of credit in either of the preceding two years will not be required to begin collecting such data until January 1, 2020.15 As a result, when revised Regulation C takes effect, an institution's obligation to collect and report information under Regulation C may change over time based on its prior loan volume.

14Id. at 66148.

15 82 FR 43088, 43093-43096 (Sept. 13, 2017); see also id. at 43132, 43145 (§§ 1003.2(g)(1)(v)(B), (g)(2)(ii)(B), and 1003.3(c)(12)). This temporary increase in the open-end threshold will provide time for the Bureau to consider whether to initiate another rulemaking to address the appropriate level for the open-end threshold for data collected beginning January 1, 2020.

C. Uniform Residential Loan Application

The Enterprises, currently under the conservatorship of the Federal Housing Finance Agency (FHFA), prepare and periodically revise the URLA used by many lenders for certain dwelling-related loans. A mortgage loan application must be documented using the URLA in the mortgage loan file for the loan to be eligible for sale to the Enterprises.16 A version of the URLA dated January 2004 (2004 URLA) is included in the Regulation B appendix as a model form for use in complying with § 1002.13. The appendix provides that the use of its model forms is optional under Regulation B but that, if a creditor uses an appropriate appendix B model form, or modifies a form in accordance with instructions provided in appendix B, that creditor shall be deemed to be acting in compliance with § 1002.5(b) through (d).17 The Enterprises, under the conservatorship of the FHFA, issued a revised and redesigned URLA on August 23, 2016 (2016 URLA).18 Among other changes, the 2016 URLA includes a Demographic Information section (section 7) that addresses the requirements in revised Regulation C for collecting applicant demographic information, including the requirement that financial institutions permit applicants to self-identify using disaggregated ethnicity and race categories beginning January 1, 2018. The Enterprises also made available a Demographic Information Addendum, which is identical in form to section 7 of the 2016 URLA.19 The Enterprises have advised that the Demographic Information Addendum may be used by lenders at any time on or after January 1, 2017, as a replacement for section X (Information for Government Monitoring Purposes) in the current URLA, dated July 2005 (revised June 2009). The Enterprises have not yet provided a date when lenders may begin using the 2016 URLA or the date lenders are required to use the 2016 URLA (the cutover date), but have stated their intention to collaborate with industry stakeholders to help shape the implementation timeline for the 2016 URLA, with a goal to provide lenders with more precise information in 2017 regarding the cutover date.20

16 Fannie Mae, “Selling Guide: Single Family Seller Servicer,” at § B1-1-01 (Dec. 16, 2014), available at https://www.fanniemae.com/content/guide/selling/b1/1/01.html; Freddie Mac, “Single-Family Seller/Servicer Guide” (Sep. 21, 2016), § 3401.7, available at http://www.freddiemac.com/singlefamily/guide/bulletins/snapshot.html.

17 Comment appendix B-1 provides that a previous version of the URLA, dated October 1992, may be used by creditors without violating Regulation B. In addition, comment appendix B-2 provides that the home-improvement and energy loan application form prepared by the Enterprises, dated October 1986, complies with the requirements of Regulation B for some creditors but not others, depending on whether the creditor is governed by § 1002.13(a) or subject to a substitute monitoring program under § 1002.13(d). The Enterprises no longer offer the home-improvement and energy loan application form identified in comment app. B-2. See Fannie Mae, “Guide Forms,” available at https://www.fanniemae.com/singlefamily/selling-servicing-guide-forms (last visited Sept. 6, 2017) (listing all current selling and servicing guide forms); see also Freddie Mac, “Forms and Documents,” available at http://www.freddiemac.com/singlefamily/guide/ (last visited Sept. 6, 2017) (same).

18See Fannie Mae, “Uniform Residential Loan Application,” https://www.fanniemae.com/singlefamily/uniform-residential-loan-application# (last visited Sept. 6, 2017); see also Press Release, Uniform Mortgage Data Program, Fannie Mae and Freddie Mac at the direction of the FHFA, “The Redesigned URLA and ULAD Mapping Document Are Here!,” (Aug. 23, 2016), available at https://www.fanniemae.com/content/news/urla-announcement-august-2016.pdf.

19 Fannie Mae, Form 1003 and Freddie Mac Form 65, “Demographic Information Addendum,” (Aug. 2016), available at https://www.fanniemae.com/content/guide_form/urla-demographic-addendum.pdf.

20 Press Release, Uniform Mortgage Data Program, Fannie Mae and Freddie Mac at the direction of the FHFA, “URLA Implementation Guidance and Update,” (Nov. 1, 2016), available at https://www.fanniemae.com/content/news/urla-announcement-november-2016.pdf; Uniform Mortgage Data Program, Fannie Mae and Freddie Mac at the direction of the FHFA, “Uniform Residential Loan Application (URLA)/Uniform Loan Application Dataset (ULAD) FAQs,” at ¶ 6 (Nov. 1, 2016), available at https://www.fanniemae.com/content/faq/urla-ulad-faqs.pdf.

D. Bureau Approval Notice

On September 23, 2016, the Bureau issued a notice concerning the collection of expanded information about ethnicity and race in 2017 (Bureau Approval Notice).21 Before the January 1, 2018, effective date of most provisions of the 2015 HMDA Final Rule, inquiries to collect applicant demographic information using disaggregated ethnic and racial categories are not required by current Regulation C and would not have been allowed under Regulation B § 1002.5(a)(2), and therefore creditors would have been prohibited by Regulation B § 1002.5(b) from requesting applicants to self-identify using disaggregated ethnic and racial categories before January 1, 2018. The Bureau Approval Notice provided that, anytime from January 1, 2017 through December 31, 2017, a creditor may, at its option, permit applicants to self-identify using disaggregated ethnic and racial categories as instructed in the revised Regulation C appendix. During this period, a creditor adopting the practice of permitting applicants to self-identify using disaggregated ethnic and racial categories as instructed in the revised Regulation C appendix shall be deemed to be in compliance with Regulation B § 1002.13(a)(i). In the same notice, the Bureau also determined that the relevant language in the 2016 URLA is in compliance with the regulatory provisions of Regulation B § 1002.5(b) through (d), regarding requests for protected applicant-characteristic information and certain other information. The notice provides that, although the use of the 2016 URLA by creditors is not required under Regulation B, a creditor that uses the 2016 URLA without any modification that would violate § 1002.5(b) through (d) acts in compliance with § 1002.5(b) through (d).

21 81 FR 66930 (Sept. 29, 2016).

III. Summary of the Rulemaking Process A. Pre-Proposal Outreach

As part of the Bureau's outreach to financial institutions, vendors, and other mortgage industry participants to prepare for the implementation of the 2015 HMDA Final Rule, the Bureau received questions about the requirement to permit applicants to self-identify using disaggregated ethnicity and race categories. The Bureau also received questions as to how that requirement intersected with compliance obligations under Regulation B. The Bureau further received questions related to the Bureau Approval Notice about whether the approval for collecting disaggregated ethnicity and race categories under Regulation B in 2017 would be extended to 2018. In light of these inquiries, the Bureau determined that it would be beneficial to establish through rulemaking appropriate standards in Regulation B concerning the collection of an applicant's ethnicity and race information similar to those in revised Regulation C.

Because many of the financial institutions most affected by this proposed rule are supervised by the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Federal Reserve Board (Board), and the National Credit Union Administration (NCUA), the Bureau conducted outreach to these agencies. The Bureau specifically sought input from these agencies concerning their use of applicant ethnicity and race information collected under § 1002.13 but not reported or anticipated to be reported under Regulation C and their views on appropriate standards for collection and retention of this information. The Bureau also conducted outreach with other Federal agencies, including the Securities and Exchange Commission, the Department of Justice, the Department of Housing and Urban Development, the Federal Housing Finance Agency, the Federal Trade Commission, the Department of Veterans Affairs, the Department of Agriculture, the Department of the Treasury, and the Federal Financial Institutions Examination Counsel (FFIEC) concerning the proposed rule.

B. The Bureau's Proposal

On March 24, 2017, the Bureau issued the 2017 ECOA Proposal on its Web site. The proposal was published in the Federal Register on April 4, 2017.22

22 82 FR 16307 (Apr. 4, 2017).

Specifically, the Bureau proposed an amendment to § 1002.13 to permit a creditor additional flexibility in how it collects applicant ethnicity and race information by allowing use of either aggregate or disaggregate ethnicity and race categories on an application-by-application basis. In addition, the Bureau proposed amendments adding § 1002.5(a)(4) to permit creditors to collect applicant demographic information when they would not otherwise be required to do so in certain scenarios where creditors may benefit from being able to adopt Regulation C compliance practices before they become required or maintain them when they are no longer required. The Bureau also proposed to remove the outdated 2004 URLA from the Regulation B appendix, add generic model forms for compliance with § 1002.13, and maintain approval of the 2016 URLA through a freestanding approval notice.

C. Feedback Provided to the Bureau

The Bureau received approximately 36 comments on the 2017 ECOA Proposal during the comment period from consumer advocacy groups, national and State trade associations, banks, individuals, and industry service providers. Comments are publicly available at http://www.regulations.gov. This information is discussed below in the section-by-section analysis and subsequent parts of the notice, as applicable. The Bureau considered the comments, and adopts a modified final rule as described below in the section-by-section analysis.

Comments Related to 2015 HMDA Final Rule

The Bureau received several comments on the proposal concerning the 2015 HMDA Final Rule. These comments were primarily from small financial institutions. Commenters expressed concern that the data points added to Regulation C in the 2015 HMDA Final Rule burdened financial institutions and, because of this burden, the commenters encouraged the Bureau to reduce the HMDA data fields to only statutorily required fields. Commenters also requested that the Bureau increase the thresholds for being a HMDA reporter to a higher limit that would exempt more creditors from HMDA. The Bureau did not propose changes to Regulation C in this rulemaking. The Bureau considered these comments but does not believe that the comments are relevant to the 2017 ECOA Proposal and do not provide a basis to change the approach proposed by the Bureau in the 2017 ECOA Proposal. The issues raised by these comments were considered as part of the rulemaking to revise Regulation C and addressed in the 2015 HMDA Final Rule, and the Bureau has not reassessed those issues as part of this rulemaking, which concerns only issues relating to the alignment of collection of certain information about applicants under Regulation B and Regulation C and the status and use of the URLA. With respect to the open-end line of credit threshold for HMDA reporting, the Bureau adopted amendments to Regulation C that temporarily increases the open-end line of credit threshold to 500 until January 1, 2020.23 This temporary increase in the open-end threshold will provide time for the Bureau to consider whether to initiate another rulemaking to address the appropriate level for the open-end threshold for data collected beginning January 1, 2020.

23 82 FR 43088, 43093-43096 (Sept. 13, 2017); see also id. at 43132, 43145 (§§ 1003.2(g)(1)(v)(B), (g)(2)(ii)(B), and 1003.3(c)(12)).

Comments Related to Other Changes to Regulation B

Some commenters proposed other changes to Regulation B unrelated to alignment with Regulation C or applicant demographic information collection for mortgage applicants. These proposed changes included establishing applicant demographic information collection, reporting, and public disclosure requirements for automobile creditors similar to HMDA, requiring adverse action notices in certain situations involving counteroffers, and adding record-keeping and applicant demographic information collection requirements for brokers and arrangers of credit. The Bureau did not propose these changes to Regulation B. The Bureau does not believe that these comments are relevant to the 2017 ECOA Proposal and do not provide a basis to change the approach proposed by the Bureau in the 2017 ECOA Proposal.

IV. Legal Authority

The Bureau is issuing this final rule pursuant to its authority under section 703 of ECOA, as amended by section 1085 of the Dodd-Frank Act.24 ECOA authorizes the Bureau to issue regulations to carry out the purposes of ECOA.25 These regulations may contain but are not limited to such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Bureau are necessary or proper to effectuate the purposes of ECOA, to prevent circumvention or evasion of ECOA, or to facilitate or substantiate compliance with ECOA.26 A purpose of ECOA is to promote the availability of credit to all creditworthy applicants without regard to race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract) or other protected characteristics.27 ECOA section 703 serves as a source of authority to establish rules concerning the taking and evaluation of credit applications, collection and retention of applicant demographic information concerning the applicant or co-applicant, use of designated model forms, and substantive requirements to carry out the purposes of ECOA.

24 15 U.S.C. 1691b; Public Law 111-203, 124 Stat. 1376, 2083-84 (2010).

25 15 U.S.C. 1691b(a).

26Id.

27 12 CFR 1002.1(b).

The Bureau is also issuing this final rule pursuant to its authority under sections 1022 and 1061 of the Dodd-Frank Act. Under Dodd-Frank Act section 1022(b)(1), the Bureau has authority to prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws and to prevent evasions thereof.28 Section 1061 of the Dodd-Frank Act transferred to the Bureau consumer financial protection functions previously vested in certain other Federal agencies, including the authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law and perform appropriate functions to promulgate and review such rules, orders, and guidelines.29 Both ECOA and title X of the Dodd-Frank Act are consumer financial laws.30 Accordingly, the Bureau has authority to issue regulations to administer ECOA.

28 Public Law 111-203, 124 Stat. 1375, 1980 (2010) (codified at 12 U.S.C. 5512(b)(1)).

29 Public Law 111-203, 124 Stat. 1375, 2035-39 (2010) (codified at 12 U.S.C. 5581).

30 12 U.S.C. 5481(12), (14).

V. Section-by-Section Analysis Section 1002.5 Rules Concerning Requests for Information 5(a) General Rules

Section 1002.5 provides rules concerning requests for information. In general, § 1002.5(b) prohibits a creditor from inquiring about protected applicant-characteristic information in connection with a credit transaction, except under certain circumstances. The Bureau proposed to amend § 1002.5(a)(4) to authorize creditors to collect such information under certain additional circumstances. In addition, the Bureau proposed to add commentary for § 1002.5(a)(4) to provide guidance and proposed amendments to comment 5(a)(2)-2 to make conforming changes and further align Regulation B and revised Regulation C.

5(a)(4) Other Permissible Collection of Information

Section 1002.5(a)(2) provides that, notwithstanding the limitations in § 1002.5(b) through (d) on collecting protected applicant-characteristic information and other applicant information, a creditor shall request information for monitoring purposes as required by § 1002.13. Section 1002.5(a)(2) further provides that a creditor may obtain information required by a regulation, order, or agreement issued by, or entered into with, a court or an enforcement agency to monitor or enforce compliance with ECOA, Regulation B, or other Federal or State statutes and regulations. However, § 1002.5(a)(2) does not authorize collection of information beyond what is required by law. The Bureau proposed to add § 1002.5(a)(4) to authorize a creditor to obtain information in certain additional specified circumstances other than as described in § 1002.5(a)(2). Proposed § 1002.5(a)(4)(i) and (ii) would permit a creditor that is a financial institution under revised Regulation C § 1003.2(g) to collect demographic information of an applicant for a closed-end mortgage loan or an open-end line of credit that is an excluded transaction under revised Regulation C § 1003.3(c)(11) or § 1003.3(c)(12) if it submits HMDA data concerning those applications and loans or if it submitted HMDA data concerning closed-end mortgage loans or open-end lines of credit in any of the preceding five calendar years.31

31 The Bureau recently amended Regulation C to explicitly permit optional reporting of closed-end mortgage loans and open-end lines of credit even if a financial institution does not meet the applicable loan volume threshold. 82 FR 43088, 43100-43102 (Sept. 13, 2017); see also id. at 43132 (§ 1003.3(c)(11) and (12)). Regulation B § 1002.5(a)(4)(i) and (ii) as finalized in this rule correspond to those provisions in revised Regulation C and permit the collection of applicant demographic information necessary to facilitate that optional reporting. Other circumstances permitting voluntary collection of applicant demographic information finalized in this rule do not correspond to provisions in Regulation C addressing optional reporting.

Proposed § 1002.5(a)(4)(iii) would permit a creditor that falls below both of the revised Regulation C loan-volume thresholds to continue to collect applicant demographic information for five calendar years after first becoming exempt from HMDA reporting. Proposed § 1002.5(a)(4)(iv) would permit a creditor that exceeds a revised Regulation C loan-volume threshold in the first year of a two-year threshold period to collect, in the second year, applicant demographic information for a loan that would otherwise be a covered loan under Regulation C. For the reasons provided below, the Bureau is adopting § 1002.5(a)(4)(i) through (iv) as proposed. In addition, the Bureau is adopting new § 1002.5(a)(4)(v) and (vi) in response to comments, as discussed below.

The Bureau solicited comment on permitting the collection of applicant demographic information in the circumstances described in proposed § 1002.5(a)(4), and, in particular, regarding the proposed five-year time frame, and whether there are other specific, narrowly tailored circumstances not described in § 1002.5(a)(2) or proposed § 1002.5(a)(4) under which a creditor would benefit from being able to collect applicant demographic information for mortgage loan applicants. A large number of industry commenters supported proposed § 1002.5(a)(4) and the five-year timeframe for § 1002.5(a)(4)(i), (ii), and (iii). Commenters noted that being able to collect applicant demographic data when not required by HMDA would facilitate better data collection procedures, aid in retaining system and organizational knowledge, help prepare for reporting data in subsequent years, and help creditors transition to the 2016 URLA. Commenters noted that the five-year timeframe for § 1002.5(a)(4)(i), (ii), and (iii) was realistic and would provide enough time to allow institutions to keep their systems updated, but not so long that it would be unlikely the institution would become a HMDA reporter again.

One commenter requested clarification that the voluntary collection under proposed § 1002.5(a)(4) was truly voluntary and not a new compliance requirement. Proposed § 1002.5(a)(4) provides authorization to collect applicant demographic information, but does not require collection in the circumstances described. As discussed below, though, a creditor must comply with the record retention requirements of § 1002.12 if it chooses to take advantage of the authorization in § 1002.5(a)(4). The Bureau also proposed comment 5(a)(4)-1 to provide guidance on proposed § 1002.5(a)(4) and to highlight the voluntary nature of the rule. The Bureau is finalizing this comment as proposed. Comment 5(a)(4)-1 provides that information regarding ethnicity, race, and sex that is not required to be collected pursuant to Regulation C may nevertheless be collected under the circumstances set forth in § 1002.5(a)(4) without violating § 1002.5(b). It also provides that the information must be retained pursuant to the requirements of § 1002.12.

Two industry commenters proposed two alternative voluntary collection authorizations that would replace proposed § 1002.5(a)(4). One alternative would permit collection of applicant demographic information for any loan secured by an applicant's dwelling with no timeframe restriction. The other alternative would permit collection of applicant demographic information for any covered loan under Regulation C with no timeframe restriction, even if the creditor was not a financial institution under Regulation C. The Bureau is not adopting these proposed alternatives. The primary difference between these proposals and the collection permitted by final § 1002.5(a)(4)(i), (ii), and (iii) would be the removal of the five-year timeframe. As the Bureau noted in the 2017 ECOA Proposal, without a time limit such voluntary collection would permit a creditor to collect protected applicant-characteristic information for a period of time that is too attenuated from any past Regulation C legal requirement and associated compliance process. While final § 1002.5(a)(4) provides a narrow exception to the general limitations in § 1002.5(b) through (d), these alternative proposals would create a much broader exception to the general limitations on collecting such information in Regulation B. The Bureau believes that such a broad exception could significantly alter the limitations and would not be appropriate without further rulemaking and consideration.

Industry commenters proposed two additional, narrowly tailored exceptions that the Bureau is substantially adopting. One industry commenter proposed permitting collection for dwelling-secured loans made primarily for a business or commercial purpose that might be covered loans, regardless of whether or not they are for the purpose of home purchase, refinancing, or home improvement and therefore reportable under revised Regulation C. Under revised Regulation C, dwelling-secured loans made primarily for a business or commercial purpose are only required to be reported if they meet the definition of a home purchase, refinancing, or home improvement loan.32 In contrast, dwelling-secured loans that are not made primarily for a business or commercial purpose are generally required to be reported even if they do not meet the definition of a home purchase, refinancing, or home improvement loan.33 The Bureau believes that permitting collection of applicant demographic information in this narrowly tailored circumstance may be beneficial for some financial institutions because it would allow them to collect applicant demographic information early in the collection process, when they have determined that the loan would be dwelling secured and primarily for a business or commercial purpose but may not yet have determined whether it meets the definition of a home purchase loan, refinancing, or home improvement loan under revised Regulation C. Collection of applicant demographic information at that point in the application process may allow for more consistent collection and may be easier to integrate into the application process when compared with collection after HMDA coverage has been determined. The permitted collection may also alleviate concerns about violating § 1002.5(b) if a financial institution collects applicant demographic information for a particular dwelling-secured loan made primarily for a business or commercial purpose, based on the financial institution's belief that it is a home purchase loan, a refinancing, or a home improvement loan, but the financial institution later discovers that this belief was mistaken, and therefore collection of applicant demographic information was not required under Regulation C. The Bureau is adopting § 1002.5(a)(4)(v) to address the commenter's suggestion. Section 1002.5(a)(4)(v) permits a creditor that is a financial institution under revised Regulation C § 1003.2(g) or that submitted HMDA data for any of the preceding five calendar years but is not currently a financial institution under revised Regulation C § 1003.2(g) to collect information regarding the ethnicity, race, and sex of an applicant for a loan that would otherwise be a covered loan under revised Regulation C § 1003.2(e) if not excluded by revised Regulation C § 1003.3(c)(10).

32See revised Regulation C § 1003.3(c)(10). 80 FR 66128, 66139, and 66169 (Oct. 28, 2015).

33See revised Regulation C § 1003.2(e). 80 FR 66128, 80 FR 66140, and 66144 (Oct. 28, 2015).

One industry commenter also noted that the 2016 URLA includes a form for the collection of applicant demographic information for additional borrowers and does not necessarily limit the collection to the applicant and the first co-applicant, even though Regulation C requires financial institutions to provide the ethnicity, race and sex information only for the applicant and first co-applicant.34 The commenter suggested that the Bureau revise § 1002.5(b) to permit collection of demographic information for any additional co-applicants using the 2016 URLA. As discussed below in the section-by-section analysis for § 1002.13, the Bureau is amending § 1002.13(b) to permit, but not require, creditors to collect the information set forth in § 1002.13(a) from a second or additional co-applicant. With the introduction of the 2016 URLA the Bureau believes that permitting collection of applicant demographic information in this narrowly tailored circumstance may be beneficial for some financial institutions because it would allow them to use more easily standard forms for collection of applicant demographic information without identifying at the time of collection which applicants are the primary and first co-applicant. The Bureau is adopting § 1002.5(a)(4)(vi) to address the commenter's suggestion by clarifying that the collection of applicant demographic information for additional borrowers is permitted. Accordingly, § 1002.5(a)(4)(vi) permits a creditor that is collecting information regarding the ethnicity, race, and sex of an applicant or first co-applicant to collect information regarding the ethnicity, race, and sex of a second or additional co-applicant for a covered loan under Regulation C § 1003.2(e), or for a loan described in paragraphs (a)(4)(i) through (v). Authorization for this collection, consistent with the other provisions of § 1002.5(a)(4), is not limited to collection using the 2016 URLA.

34 Fannie Mae, “Uniform Residential Loan Application,” https://www.fanniemae.com/singlefamily/uniform-residential-loan-application# (last visited Sept. 6, 2017).

Having considered the comments received and for the reasons discussed above, the Bureau is finalizing § 1002.5(a)(4)(i) through (iv) generally as proposed with minor wording changes for clarity, finalizing new § 1002.5(a)(4)(v) and (vi), and finalizing the conforming amendments to comment 5(a)(2)-2 and new comment 5(a)(4)-1 as proposed. The Bureau believes that these provisions further the purposes of ECOA by easing overall burden on creditors and improving the quality of the data that is used to promote the availability of credit to all creditworthy applicants. The Bureau also believes that permitting creditors to collect certain protected applicant-characteristic information in these circumstances provides a narrow exception to the general limitations in § 1002.5(b) through (d) respects the purposes of those prohibitions.

Section 1002.12 Record Retention

Section 1002.12 provides rules concerning permissible and required record retention. In light of proposed § 1002.5(a)(4), the Bureau also proposed to amend § 1002.12(b)(1)(i) to require retention of certain protected applicant-characteristic information obtained pursuant to proposed § 1002.5(a)(4).

12(b) Preservation of Records 12(b)(1) Applications 12(b)(1)(i)

Section 1002.12(b)(1) provides that a creditor must retain certain records for 25 months, or 12 months for business credit.35 Regulation B § 1002.2(g) defines business credit to mean, with certain exceptions, extensions of credit primarily for business or commercial purposes. Under § 1002.12(b)(1)(i), these records include any information required to be obtained concerning characteristics of credit applicants to monitor compliance with ECOA and Regulation B or other similar law. The Bureau proposed to amend § 1002.12(b)(1)(i) to include within its preservation requirements any information obtained pursuant to § 1002.5(a)(4). The Bureau also proposed to amend comment 12(b)-2 to require retention of applicant demographic information obtained pursuant to § 1002.5(a)(4).

35 Section 1002.12(b)(1) provides that creditors must retain records for 12 months for business credit, except as provided in § 1002.12(b)(5).

Two commenters supported the proposal regarding record retention, noting that it would facilitate monitoring of fair lending laws and serve ECOA's purposes and that it seemed appropriate given the proposed amendments to § 1002.5(a)(4). One commenter noted that Regulation B § 1002.12(b)(1) provides a 25-month record retention period for most transactions, but a 12-month period for business credit transactions, and that the Bureau's proposal would create a longer retention period for business credit for which a creditor voluntarily collected applicant demographic information under proposed § 1002.5(a)(4). The Bureau acknowledges that the preamble to the proposed rule stated that § 1002.12(b)(1) required retention of certain records for 25 months and did not acknowledge the different 12 month period for business credit provided for in § 1002.12(b)(1). The Bureau did not intend to extend the record retention period under Regulation B for business credit transactions through the proposal and this final rule does not do so. The Bureau is finalizing the amendments to § 1002.12(b)(1)(i) and comment 12(b)-2 as proposed.

The Bureau believes that, if a creditor voluntarily collects applicant demographic information pursuant to § 1002.5(a)(4), the creditor should be required to maintain those records in the same manner as it does for protected applicant-characteristic information it is required to collect. This will allow the information to be available for monitoring and enforcing compliance with ECOA, Regulation B, and other Federal or State statutes or regulations. Without a corresponding record retention requirement, a creditor might collect but not retain the information, thus preventing the use of the information for these purposes.

Section 1002.13 Information for Monitoring Purposes

Section 1002.13 sets forth the scope, required information, and manner for the mandatory collection of certain protected applicant-characteristic information under Regulation B. The Bureau proposed to amend § 1002.13(a)(1)(i) to provide a creditor flexibility to collect applicant ethnicity and race information using either aggregate or disaggregated categories, thereby furthering the purposes of ECOA, reducing compliance burden, and facilitating use of the 2016 URLA. In addition, the Bureau proposed several revisions to § 1002.13(b) and (c) and its commentary to align further the collection requirements of Regulation B with revised Regulation C.

13(a) Information To Be Requested 13(a)(1) 13(a)(1)(i)

Section 1002.13(a) sets forth certain protected applicant-characteristic information a creditor must collect for applications on certain dwelling-secured loans. Current § 1002.13(a)(1) requires that creditors collect information regarding the applicant's ethnicity and race using two aggregate ethnicity categories (Hispanic or Latino and Not Hispanic or Latino) and five aggregate race categories (American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White). Proposed § 1002.13(a)(1)(i) provided that a creditor must collect the applicant's information using either the aggregate ethnicity and race categories currently required or the ethnicity and race categories and subcategories set forth in the revised Regulation C appendix, which provide disaggregated ethnicity and race categories. Through this proposed change, creditors taking applications for loans subject to § 1002.13(a)(1) but not required to submit HMDA data under Regulation C would have the option of either maintaining their current collection practices or transitioning to the revised Regulation C collection practices and the 2016 URLA. The Bureau also proposed comments 13(a)-7 and 13(a)-8 to provide that a creditor that collects applicant information in compliance with the revised Regulation C appendix will be acting in compliance with § 1002.13 concerning the collection of an applicant's ethnicity, race, and sex information and to clarify that a creditor may choose on an application-by-application basis whether to collect aggregate or disaggregated information. For the reasons provided below, the Bureau is adopting § 1002.13(a) and comments 13(a)-7 and 13(a)-8 as proposed.

The Bureau solicited comment on its proposal to allow creditors to collect applicant race and ethnicity information using, at the creditor's option, either aggregate or disaggregated categories. A large number of industry commenters supported the proposed amendments to § 1002.13(a)(1)(i). Many of these commenters stated that the proposal would simplify the collection process and reduce regulatory burden by ensuring that creditors are not subject to differing collection requirements under Regulation B and Regulation C. Commenters also expressed the view that the proposal would ease compliance burden because it would provide creditors the flexibility to use the method most suitable for them. Commenters also noted that it would facilitate use of the 2016 URLA. One industry commenter supporting the proposal stated that mandating disaggregated collection for all creditors would be unduly burdensome.

A number of commenters recommended alternative approaches to proposed § 1002.13(a)(1)(i). Two industry groups suggested that the Bureau remove § 1002.13 altogether. One of these commenters stated that the collection of applicant demographic information is duplicative of Regulation C and that removing this requirement in Regulation B would reduce burden. The other commenter asserted that collection of applicant demographic information requires significant time and resources for Regulation B-only creditors and that the information is virtually never used.

On the other hand, consumer advocacy groups and an industry service provider suggested that creditors be required to collect disaggregated ethnicity and race information after a multi-year phase in period. The consumer advocacy groups stated that mandatory disaggregated collection would ensure uniform data collection practices and facilitate fair lending analysis, including identifying potential discrimination against racial and ethnic subgroups. The consumer advocacy groups further expressed the view that mandatory disaggregated collection would prepare lenders to submit HMDA data in the future should they cross a reporting threshold and that the burden of mandatory disaggregated collection would not be significant because the 2016 URLA makes it easy to record these categories. An industry service provider also supported a uniform standard based on the requirements in revised Regulation C in order to reduce the costs of supporting dual collection methods. Similarly, an industry commenter stated that the collection methods used in Regulation B and Regulation C should match.

The Bureau is not adopting any of the alternatives suggested by commenters. Although the information collected under § 1002.13 and Regulation C overlap, in part, as discussed in the 2017 ECOA Proposal, regulators will rely on applicant demographic information collected under § 1002.13 to supervise and enforce fair lending laws, including for a substantial number of creditors that will not be required to report under revised Regulation C. 36 Thus, the Bureau concludes that retaining § 1002.13 serves the purposes of ECOA to promote the availability of credit to all creditworthy applicants without regard to protected characteristics.

36 82 FR 16307, 16313, and 16317-18 (Apr. 4, 2017).

On the other hand, the Bureau believes that requiring disaggregated collection for Regulation B-only creditors would impose additional burden on creditors without significant benefits. Requiring disaggregated collection, even after a multi-year phase in period, would add complexity and burden to an already complex timeline that includes implementation of the 2015 HMDA Final Rule and transition to the 2016 URLA. As further discussed in the Section 1022(b) analysis below, the Bureau believes that the additional burden would have few benefits. The incremental benefits of this alternative are also likely to be low because many creditors will collect disaggregated categories under Regulation B in any case, either because they are required to do so under revised Regulation C or as part of the transition to the 2016 URLA. The Bureau is therefore not requiring the collection of disaggregated categories for Regulation B-only creditors. The Bureau may reevaluate the need for mandatory disaggregated collection under § 1002.13 after implementation of the 2015 HMDA Final Rule and transition to the 2016 URLA, when more information is available on creditor collection practices. If it appears that action is warranted, the Bureau will engage in further rulemaking as appropriate.

Two industry commenters, while supportive of the flexibility provided in the 2017 ECOA Proposal, sought clarification on how aggregate and disaggregated data will be evaluated against one another, including how aggregate information collected under Regulation B would be compared to disaggregated information collected under revised Regulation C. The commenters expressed concern that the optionality could result in dissimilar demographic reporting and potentially greater compliance burden for creditors who choose to continue to collect aggregate information. The Bureau does not believe that flexibility will result in additional burden and reiterates that § 1002.13(a)(1)(i) would permit a Regulation B-only creditor to maintain its existing practices and collect aggregate race and ethnicity categories. Moreover, because both methods use the same aggregate categories, a creditor can compare information collected under either method by rolling up the disaggregated subcategories into their corresponding aggregate categories. The Bureau, however, declines to set forth specific instructions on how a data user should evaluate the information collected pursuant to § 1002.13 or Regulation C as the Bureau only sought comment on data collection practices under § 1002.13. Having considered the comments received and for the reasons discussed above, the Bureau is finalizing § 1002.13(a)(1)(i) as proposed.

An industry service provider asked the Bureau to provide guidance regarding whether the term “natural person” as used in Regulation B and Regulation C includes living trusts or sole proprietorships. Because Regulation B and Regulation C do not provide inconsistent instructions on the scope of the term “natural person,” the Bureau declines to provide additional guidance on this issue within this final rule, which, as related to § 1002.13, is limited to modifications that harmonize the collection requirements of Regulation B and Regulation C.

The Bureau proposed revised comment 13(a)-7 to provide that, for applications subject to § 1002.13(a)(1), a creditor that collects information about the ethnicity, race, and sex of an applicant in compliance with the requirements of the revised Regulation C appendix will be acting in compliance § 1002.13 concerning the collection of an applicant's ethnicity, race, and sex information. The Bureau received one industry comment supporting alignment of the instructions in § 1002.13 with the revised Regulation C appendix. The commenter noted that differing instructions may lead to uncertainty and that Regulation B-only creditors would benefit from the additional instructions provided in revised Regulation C. No commenters opposed the proposed comment, and so the Bureau is finalizing comment 13(a)-7 as proposed.

As proposed, comment 13(a)-8 permitted a creditor to choose on an application-by-application basis whether to collect aggregate information pursuant to § 1002.13(a)(1)(i)(A) or disaggregated information pursuant to § 1002.13(a)(1)(i)(B). One industry commenter generally supported the proposal, noting the flexibility would reduce compliance burden. Another industry commenter was concerned about how a creditor would decide which collection method to use and whether the instruction could have a discriminatory impact. Various consumer advocacy groups also opposed proposed comment 13(a)-8, arguing that the instruction could encourage creditors to develop and maintain haphazard, inaccurate, and inconsistent data collection methods.

The Bureau is adopting comment 13(a)-8 as proposed. The Bureau believes that most creditors will voluntarily adopt a consistent collection method because uniform practices are generally easier and less costly for creditors to implement. If the Bureau were to require creditors to adopt a consistent collection method across applications, the Bureau would also need to issue additional guidance in the official commentary concerning how often and under what circumstances a creditor may change its collection method, among other implementation issues. The Bureau believes that such guidance would add complexity and compliance burden on creditors without furthering the purposes of ECOA, and so declines to do so as part of this rulemaking.

The Bureau received several additional comments about topics other than those raised by the Bureau in the 2017 ECOA Proposal. These included, for example, a comment supporting the collection of loan officers' demographic information, a request to collect information on whether the applicant is divorced, a request for guidance on when previously gathered applicant demographic information can be used for new applications, and a request that the Bureau provide a safe harbor for information collected in 2017. The Bureau did not propose these changes in the 2017 ECOA Proposal. The Bureau does not believe that these comments are relevant to the 2017 ECOA Proposal and do not provide a basis to change the approach proposed by the Bureau in the 2017 ECOA Proposal, which, as related to § 1002.13, is limited to modifications that harmonize the collection requirements of Regulation B and Regulation C.

For the reasons discussed above, the Bureau is adopting § 1002.13(a)(1)(i) and comments 13(a)-7 and 13(a)-8 as proposed. The Bureau believes that creditors should not be subject to differing collection requirements, and that aligning the requirements of § 1002.13 and revised Regulation C furthers the purposes of ECOA by facilitating practices that promote the availability of credit to all creditworthy applicants.

13(b) Obtaining Information

Section 1002.13(b) discusses how creditors may obtain applicant information required under § 1002.13(a). Among other instructions, current § 1002.13(b) provides that, if an applicant chooses not to provide some or all of the requested applicant demographic information, the creditor must, in certain circumstances, collect the information on the basis of visual observation or surname. If a creditor collects disaggregated race and ethnicity information pursuant to § 1002.13(a)(1)(i)(B), proposed § 1002.13(b) provided that a creditor must comply with the restrictions on the collection of an applicant's ethnicity and race on the basis of visual observation or surname set forth in the revised Regulation C appendix, which limits such collection to the aggregate race and ethnicity categories. For the reasons provided below, the Bureau is adopting the revisions to § 1002.13(b) concerning the collection of ethnicity and race information on the basis of visual observation or surname as proposed. To further align the collection requirements of Regulation B and Regulation C, the Bureau is further amending § 1002.13(b) to permit, but not require, creditors to collect the information set forth in § 1002.13(a) from a second or additional co-applicant.

The few commenters who specifically addressed the Bureau's proposed amendment to § 1002.13(b) generally supported the modification, noting that it aligned with revised Regulation C and would facilitate consistent data collection. One commenter argued that the proposed rule would add complexity, however, as creditors would be required to report disaggregated information under revised Regulation C, permitted to collect such information under revised § 1002.13, but prohibited from collecting disaggregated information if the applicant does not provide it.

Two commenters opposed the collection of applicant demographic information on the basis of visual observation or surname under any circumstances. One commenter stated that extending the requirement to collect applicant demographic information on the basis of visual observation or surname to Regulation B-only creditors is outside the scope of ECOA. The commenters also argued that such collection is often inaccurate, cannot be relied upon for fair lending analysis, and is contrary to the purposes of ECOA. In support, one of the commenters cited a report finding that 10 million Americans change their racial and ethnic identifications between U.S. Census surveys. The same commenter also cited a report by health researchers discussing, among other topics, that observer-selected race, often used for death certificates, may not match self-selected race. The commenters proposed that the requirement to collect applicant demographic information on the basis of visual observation or surname should be eliminated or that the Bureau provide additional instructions to aid creditors to identify an applicant's ethnicity and race based on visual observation or surname.

The Bureau will finalize as proposed the revisions to § 1002.13(b) concerning the collection of an applicant's ethnicity and race information on the basis of visual observation or surname. The requirement to collect, in certain circumstances, applicant demographic information on the basis of visual observation or surname where the applicant does not provide this information has been a longstanding requirement of § 1002.13(b). The amendment to § 1002.13(b) in the 2017 ECOA Proposal would not impose any new obligation on creditors to collect an applicant's ethnicity and race on the basis of visual observation or surname but, rather, would limit such collection to the aggregate ethnicity and race categories, even if the creditor permits an applicant to self-identify using the disaggregated categories. The proposed amendment would align § 1002.13 collection of disaggregated information with the collection requirements of Regulation C. While the Bureau acknowledges that this limitation on the collection of applicant demographic information involves some complexity, the Bureau believes that, on balance, aligning § 1002.13 collection methods with Regulation C will be less complex than introducing different rules for § 1002.13(b) alone.

The Bureau declines to consider the proposals to eliminate altogether the requirement to collect applicant demographic information on the basis of visual observation or surname in § 1002.13 or to provide further instructions on how to collect such information as both proposals go beyond the issues on which the Bureau solicited comment. Indeed, given that Regulation C requires collection of certain applicant demographic information on the basis of visual observation or surname, adopting either proposal would undermine the purpose of this rulemaking by imposing different requirements in Regulation B and Regulation C.37 Moreover, the cited studies conclude only that some applicants may self-identify as different races over time and that visual observation of race is not always accurate. Thus, even if the Bureau were reconsidering its approach to visual observation or surname collection, which it is not, the Bureau does not believe the evidence submitted by the commenters demonstrate that collection based on visual observation or surname do not serve the purposes of ECOA.

37 80 FR 66128, 66187-88 (Oct. 28, 2015).

An industry service provider suggested the Bureau standardize the treatment of co-applicants between § 1002.13 and Regulation C. The commenter noted that the two rules imposed different requirements where there are multiple “applicants,” stating that while § 1002.13 requires a financial institution to collect information from any applicant who is a natural person, the revised Regulation C appendix instructs a financial institution to provide applicant demographic information for only the applicant and the first co-applicant listed on the collection form. The industry service provider commented that this distinction makes data collection more complex and burdensome, and requested that the Bureau clarify the collection requirements for co-applicants under Regulation B.

The Bureau acknowledges that the requirement to collect or provide applicant demographic information from co-applicants differs between § 1002.13 and revised Regulation C. The Bureau concludes that these differences may create additional burden and complexity for creditors, who may need to modify their practices concerning co-applicant collection depending on whether collection is required under both Regulation B and revised Regulation C or only under revised Regulation C. The Bureau is therefore revising § 1002.13(b) to clarify that a creditor is permitted, but is not required, to collect the information set forth in § 1002.13(a) from a second or additional co-applicant. The Bureau believes this clarification will simplify collection practices and reduce compliance burden by aligning Regulation B and Regulation C. The clarification will also allow Regulation B-only creditors to maintain their existing practices under § 1002.13 if so desired. By providing flexibility and reducing burden, the Bureau believes this modification will further the purposes of ECOA by facilitating practices that promote the availability of credit to all creditworthy applicants. As discussed above in the section-by-section analysis for § 1002.5(a)(4), the Bureau is also adopting new § 1002.5(a)(4)(vi) to permit collection of applicant demographic information for second or additional co-applicants in certain circumstances, thereby providing additional optionality for creditors to maintain consistent collection practices under Regulation B and Regulation C.

For the reasons discussed above, the Bureau is finalizing as proposed the revisions to § 1002.13(b) concerning the collection of ethnicity and race information on the basis of visual observation or surname. To facilitate compliance with Regulation B and further align the collection requirements of Regulations B and Regulation C, the Bureau is also amending § 1002.13(b) to permit, but not require, creditors to collect the information set forth in § 1002.13(a) from a second or additional co-applicant.

Current comment 13(b)-1 provides guidance on the forms and collection methods a creditor may use to collect applicant information under § 1002.13(a). In the 2017 ECOA Proposal, the Bureau proposed to amend comment 13(b)-1 to reference the data collection model forms the Bureau proposed to provide in the Regulation B appendix. The Bureau also proposed to revise comment 13(b)-1 to reiterate that when a creditor collects only aggregate ethnicity and race information pursuant to § 1002.13(a)(1)(i)(A), the applicant must be offered the option to select more than one racial designation. If a creditor collects applicant information pursuant to § 1002.13(a)(1)(i)(B), the applicant must be offered the option to select more than one ethnicity and more than one racial designation. The Bureau received no comments specifically addressing the revisions to proposed comment 13(b)-1, and so is finalizing it as proposed. Comments related to the data collection model forms are addressed in the section-by-section analysis of the Regulation B appendix.

13(c) Disclosure to Applicant(s)

Section 1002.13(c) sets forth disclosures a creditor must provide to an applicant when collecting the information set forth in § 1002.13(a). Current comment 13(c)-1 provides, among other information, that the Regulation B appendix contains a sample disclosure. The Bureau proposed to amend comment 13(c)-1 to reference two data collection model forms the Bureau proposed to provide in the Regulation B appendix. The Bureau received no comments on proposed comment 13(c)-1, and so is finalizing comment 13(c)-1 as proposed. Comments related to the data collection model forms and the 2016 URLA are addressed in the section-by-section analysis of the Regulation B appendix.

Appendix B to Part 1002—Model Application Forms

Regulations B and C both contain an appendix B that provides model forms for use when collecting applicant demographic information required under the regulations. The current Regulation B appendix includes the 2004 URLA as a model form. The current and revised Regulation C appendix include instructions and a data collection model form for collecting applicant demographic information.

The current Regulation B appendix includes five model forms, each designated for use in a particular type of consumer credit transaction. The fifth model form, the 2004 URLA, is described in the Regulation B appendix as appropriate for residential mortgage transactions and contains a model disclosure for use in complying with current § 1002.13. While use of the model forms is optional, if a creditor uses the appropriate model form, or modifies a form in accordance with the instructions provided in the Regulation B appendix, that creditor is deemed to be acting in compliance with § 1002.5(b) through (d).38

38 Appendix B to part 1002, at paragraphs 1, 3.

As discussed above, on September 23, 2016, the Bureau issued the Bureau Approval Notice, pursuant to section 706(e) of ECOA.39 In the Bureau Approval Notice, the Bureau determined that, while a creditor is not required to use the 2016 URLA, a creditor that uses the form without any modification that would violate § 1002.5(b) through (d) would act in compliance with § 1002.5(b) through (d).40 Unlike prior versions of the URLA, the 2016 URLA permits an applicant to select disaggregated ethnicity and race categories, as required under revised Regulation C.

39 81 FR 66930 (Sept. 23, 2016).

40Id.

Given the issuance of the Bureau Approval Notice and the modifications to § 1002.13, the Bureau proposed several revisions to the Regulation B appendix as discussed below.

Model Forms for Complying With Section 1002.13(a)(1)(i)

The Bureau proposed to revise the Regulation B appendix to provide two additional model forms for use in complying with § 1002.13. First, for creditors collecting disaggregated applicant demographic information pursuant to § 1002.13(a)(1)(i)(B) and (ii), the Bureau proposed to amend the Regulation B appendix to cross-reference the data collection model form included in the revised Regulation C appendix. Second, for creditors collecting aggregate applicant demographic information pursuant to § 1002.13(a)(1)(i)(A) and (ii), the Bureau proposed to amend the Regulation B appendix to add a model form. The proposed model form substantially mirrors section X in the 2004 URLA and the data collection model form contained in the current Regulation C appendix. The Bureau received no comments opposing and one comment supporting the proposed amendments and so is finalizing the Regulation B appendix to provide alternative model forms as proposed.

In the 2017 ECOA Proposal, the Bureau also considered but did not propose the alternative of including the 2016 URLA as a model form in the Regulation B appendix.41 No commenters opposed the decision not to include the 2016 URLA as a model form in the Regulation B appendix, and several commenters noted that the proposed rule would encourage use and transition to the 2016 URLA. Accordingly, the Bureau is finalizing the Regulation B appendix as proposed, without including the 2016 URLA.

41 82 FR 16307, 16315 (Apr. 4, 2017).

One industry commenter requested clarification that use of the 2016 URLA complies with Regulation B. The Bureau believes that no additional approval is necessary: The Bureau Approval Notice provides that a creditor that uses the 2016 URLA without any modification that would violate § 1002.5(b) through (d) acts in compliance with § 1002.5(b) through (d).42 Similarly, because the substance and form of section 7 of the 2016 URLA is substantially similar to the form the Bureau provides as a model form in Regulation C, the 2016 URLA may be used in complying with § 1002.13.

42 81 FR 66930 (Sept. 23, 2016).

Removal of the 2004 URLA as a Model Form

The current Regulation B appendix includes the 2004 URLA as a model form for use in complying with § 1002.13. In light of the revisions to § 1002.13(a)(1)(i), the amendment to the Regulation B appendix to provide two additional model forms, and the fact that the Bureau separately approved use of the 2016 URLA in the Bureau Approval Notice, the Bureau proposed to remove the 2004 URLA as a model form in Regulation B. The Bureau proposed that the 2004 URLA be removed on the cutover date the Enterprises designate for use of the 2016 URLA or January 1, 2022, whichever comes first. The Bureau received no comments on the proposal to remove the 2004 URLA or the timing of the removal and so is finalizing removal of the 2004 URLA as proposed. The date for removal of the 2004 URLA from the Regulation B appendix is discussed further in the Effective Date section below.

Removal of the Official Commentary to Appendix B

Commentary to the Regulation B appendix includes a discussion of two forms created by the Enterprises that are no longer in use: A 1992 version of the URLA and a 1986 home-improvement and energy loan application form. Given that neither of these forms is currently used by the Enterprises, the Bureau proposed to remove in its entirety the commentary to the Regulation B appendix. The Bureau received no comments on its proposal and so is removing the commentary to the Regulation B appendix in this final rule.

VI. Effective Date

The Bureau proposed an effective date of January 1, 2018, which aligns with the effective date for the bulk of the revisions to Regulation C in the 2015 HMDA Final Rule. The effective date of the 2015 HMDA Final Rule applies to covered loans and applications with respect to which final action is taken beginning on January 1, 2018, even if the application is received in 2017. One commenter indicated that the Bureau's proposed effective date for this rule creates concerns that it does not indicate that the collection of disaggregated applicant demographic information is permitted for applications received in 2017 for which final action is taken in 2018. The commenter noted that the Bureau Approval Notice applied to all applications taken in 2017 and suggested that the proposed effective date for this rule sends a mixed message. The Bureau Approval Notice provides that, at any time from January 1, 2017, through December 31, 2017, a creditor may, at its option, permit applicants to self-identify using disaggregated ethnic and racial categories as instructed in revised Regulation C. During this period, a creditor adopting the practice of permitting applicants to self-identify using disaggregated ethnic and racial categories as instructed in the Regulation C appendix is not deemed to violate Regulation B § 1002.5(b). During this period, a creditor adopting the practice of permitting applicants to self-identify using disaggregated ethnic and racial categories as instructed in the Regulation C appendix is also deemed to be in compliance with Regulation B § 1002.13(a)(1)(i) even though applicants are asked to self-identify using categories other than those explicitly provided in that section. Because the Bureau Approval Notice remains in effect for all of 2017, the amendments in this rule are not necessary to permit Regulation B-only creditors or HMDA reporters to collect disaggregated applicant demographic information for applications taken in 2017; they are already permitted to do so by the Bureau Approval Notice for any application for a covered loan under revised Regulation C § 1003.2(g) or any application subject to § 1002.13 for all of 2017.

The Bureau proposed as an effective date for the removal of the 2004 URLA from Regulation B appendix either the cutover date designated by the Enterprises for the mandatory use of the 2016 URLA or January 1, 2022. The Bureau did not receive any comments on the proposed effective date for this provision. Because the Enterprises have not announced a cutover date for the mandatory use of the 2016 URLA, the Bureau is finalizing January 1, 2022, as the effective date for the removal of the 2004 URLA from the Regulation B appendix.

The rule is effective on January 1, 2018, except that the amendment to the Regulation B appendix removing the existing “Uniform Residential Loan Application” form is effective January 1, 2022.

VII. Dodd-Frank Act Section 1022(b) Analysis A. Overview

In developing the final rule, the Bureau has considered the potential benefits, costs, and impacts.43 In the 2017 ECOA Proposal, the Bureau set forth a preliminary analysis of these effects, and the Bureau requested comment and submissions of additional data that could inform the Bureau's analysis of the benefits, costs, and impacts of the proposal. The Bureau received some comments on the topic. Comments on the benefits and costs of the rule are also discussed above in the section-by-section analysis of the preamble. The Bureau has consulted, or offered to consult with, the prudential regulators (the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of the Comptroller of the Currency), the Securities and Exchange Commission, the Department of Justice, the Department of Housing and Urban Development, the Federal Housing Finance Agency, the Federal Trade Commission, the Department of Veterans Affairs, the Department of Agriculture, and the Department of the Treasury, including regarding consistency with any prudential, market or systematic objectives administered by such agencies.

43 Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act; and the impact on consumers in rural areas.

A purpose of ECOA, as implemented by Regulation B, is to promote the availability of credit to all creditworthy applicants without regard to protected characteristics. The final rule will make three substantive changes to Regulation B, along with other clarifications, minor changes, and technical corrections to align the language of Regulation B with Regulation C as amended by the 2015 HMDA Final Rule. The first will give persons who collect and retain race and ethnicity information in compliance with Regulation B the option of permitting applicants to self-identify using the disaggregated race and ethnicity categories required by revised Regulation C. In practice, this will allow entities that report race and ethnicity in accordance with revised Regulation C to comply with Regulation B without further action, while entities that do not report under Regulation C but record and retain race and ethnicity data under Regulation B will have the option of recording data either using the existing aggregated categories or the new disaggregated categories.

The Bureau believes that, absent this change, entities that currently report race and ethnicity data under Regulation C could conclude that they have different obligations under Regulation B and Regulation C once the 2015 HMDA Final Rule goes into effect on January 1, 2018. This would lead to unnecessary burden from collecting both aggregate and disaggregated data. Industry commenters noted this potential conflict and expressed their support for the proposal. By making disaggregated collection an option under Regulation B, entities who will report race and ethnicity information under revised Regulation C will also be in compliance with Regulation B with certainty. The Bureau believes that making collection of disaggregated race and ethnicity an option for all entities covered by Regulation B will pose little or no additional burden on those entities who are not HMDA reporters. The final rule may have some benefits to Regulation B-only creditors, as the current language of Regulation B would not allow these entities to use the 2016 URLA for the purpose of collecting race and ethnicity data, as the 2016 URLA uses the disaggregated race and ethnicity categories set forth in revised Regulation C and not the specific categories required by current Regulation B. Thus, the final rule has the added benefit that it will allow Regulation B-only creditors to use the 2016 URLA as an instrument to collect race and ethnicity information.

The second substantive change will remove the outdated 2004 URLA as a model form. The Bureau issued the Bureau Approval Notice under its authority in section 706(e) of ECOA on September 23, 2016, which provides that a creditor that uses the 2016 URLA without any modification that would violate § 1002.5(b) through (d) would act in compliance with § 1002.5(b) through (d). The Bureau is not adding the 2016 URLA as a model form in place of the 2004 version. Instead, the Bureau is providing for two alternative data collection model forms for the purpose of collecting ethnicity and race information. The Bureau believes this practice of acknowledging future versions of the URLA via a Bureau Approval Notice rather than a revision to Regulation B will reduce the risk that the model form included in Regulation B will become outdated in the future.

Finally, the Bureau is amending Regulation B and the associated commentary to allow creditors to collect ethnicity, race, and sex from mortgage applicants in certain cases where the creditor is not required to report under HMDA and Regulation C. These circumstances include when: (1) A creditor that is a financial institution under revised Regulation C § 1003.2(g), originates a closed-end mortgage loan or an open-end line of credit that is an excluded transaction under revised Regulation C § 1003.3(c)(11) or § 1003.3(c)(12), if it submits HMDA data concerning those applications and loans or if it submitted HMDA data concerning closed-end mortgage loans or open-end lines of credit in any of the preceding five calendar years; (2) a creditor that submitted HMDA data in any of the preceding five calendar years but is not currently a financial institution under Regulation C § 1003.2(g), collects demographic information of an applicant for a loan that would otherwise be a covered loan under Regulation C § 1003.2(e), if not excluded by Regulation C § 1003.3(c)(11) or § 1003.3(c)(12); (3) a creditor that exceeded an applicable loan volume threshold in the first year of the two-year threshold period provided in Regulation C § 1003.2(g), § 1003.3(c)(11), or § 1003.3(c)(12), collects, in the second year, demographic information of an applicant for a loan that would otherwise be a covered loan under Regulation C § 12 CFR 1003.2(e), if the loan were not excluded by Regulation C § 1003.3(c)(11) or § 1003.3(c)(12); (4) a creditor that is a financial institution under Regulation C § 1003.2(g), or that submitted HMDA data for any of the preceding five calendar years but is not currently a financial institution under Regulation C § 1003.2(g), collects demographic information of an applicant for a loan that would otherwise be a covered loan under Regulation C § 1003.2(e) if the loan were not excluded by Regulation C § 1003.3(c)(10); and (5) a creditor that collects demographic information of a second or additional co-applicant for a covered loan under Regulation C § 1003.2(e), or for a second or additional co-applicant for a loan described in amended § 1002.5(a)(4)(i) through (v). These changes will primarily benefit institutions that may be near the loan volume reporting threshold, such that they may be required to report under HMDA and Regulation C in some years and not others, or may be uncertain about their reporting status. The Bureau believes that allowing voluntary collection will reduce the burden of compliance with Regulation C on some entities and provide certainty regarding Regulation B compliance over time.

B. Potential Benefits and Costs to Consumers and Covered Persons Providing an Option To Collect Disaggregated Race and Ethnicity for Regulation B

Relative to current Regulation B following the effective date of the 2015 HMDA Final Rule, the final rule provides clear benefits to entities that will be required to collect and report race and ethnicity data under HMDA. Currently the disaggregated race and ethnicity categories required by the amendments to Regulation C in the 2015 HMDA Final Rule, effective January 1, 2018, do not match the categories specified in current Regulation B. Because of the differences between the categories, some creditors required to collect and report race and ethnicity using the disaggregated categories set forth in revised Regulation C may be uncertain whether additional collection using aggregated categories would also be required to satisfy current Regulation B. Complying with both Regulations B and C would require burdensome and duplicative collection of race and ethnicity data at both the aggregated and disaggregated level. In practice, the final rule simply makes clear that the existing collection required under revised Regulation C is sufficient for compliance with Regulation B.

The final rule may have benefits to consumers, to the extent that lending entities voluntarily choose to collect disaggregated race and ethnicity information. As discussed in the Section 1022(b) analysis for the 2015 HMDA Final Rule, collection of disaggregated race and ethnicity data can enhance the ability of regulators, researchers and community groups to conduct fair lending analysis. There are three reasons, however, that this rule will likely have a limited effect on fair lending analysis. First, Regulation B-only creditors will not be required to permit applicants to self-identify using disaggregated ethnicity and race categories, likely resulting in few creditors adopting disaggregated ethnicity and race categories. Second, many Regulation B-only creditors will be exempt from reporting under revised Regulation C because they originate fewer than 25 closed-end mortgage loans in each of the two preceding calendar years, which means both that few consumers would be affected and any disaggregated data would likely be too sparse for statistical analysis. Finally, demographic data retained by Regulation B-only creditors is not reported under Regulation C. Consequently, most oversight and analysis of demographic data retained by Regulation B-only creditors will be done only by regulators, whereas researchers and community groups also conduct analysis of HMDA data reported under Regulation C. The Bureau believes the final rule will not impose any costs on consumers.

The final rule may have benefits to some Regulation B-only creditors. Although these entities need not make any changes to their race and ethnicity collection procedures, they may desire to do so in the future by adopting the 2016 URLA. The Enterprises have announced that they will cease accepting older versions of the URLA at a date to be determined and require firms that sell to the Enterprises to use the 2016 URLA form. Some Regulation B-only creditors sell mortgages to the Enterprises, and would benefit from being able to use the 2016 URLA. The Enterprises, not the Bureau, mandate the adoption of the 2016 URLA. Therefore, the Bureau believes any operational costs from adopting the 2016 URLA are part of the normal course of business and are not a cost of the final rule.

In addition to the amendment to Regulation B in the proposal, the Bureau considered two alternatives to address the differing race and ethnicity requirements of Regulation B and revised Regulation C. The Bureau considered requiring all creditors subject to the collection and retention requirement of Regulation B to permit applicants to self-identify using disaggregated race and ethnicity categories. To the extent that consumers would benefit from disaggregated race and ethnicity collection, this alternative would provide greater benefits than the Bureau's proposal. However, of the three limitations to consumer benefits listed above, only the first (that disaggregated categories would be optional) is alleviated by requiring the use of disaggregated race and ethnicity categories under Regulation B. It is still the case that due to the low volume of mortgages by many affected entities and the lack of reporting, disaggregated race and ethnicity data may have limited benefits. Finally, the Bureau believes many entities will adopt the 2016 URLA as part of the course of business and thus permit applicants to self-identify using disaggregated race and ethnicity categories.

At the same time, mandatory use of disaggregated collection of race and ethnicity categories would impose greater costs on creditors than the Bureau's proposal, particularly on smaller entities. These costs include greater operational costs and one-time database upgrades. Unlike the costs associated with the adoption of the 2016 URLA, these costs would not otherwise be incurred in the normal course of business. The Bureau requested comments on both the costs and benefits associated with this alternative approach.

A consumer advocacy group commenter argued that the Bureau should adopt the alternative of requiring all persons subject to the collection and retention requirement of Regulation B to permit applicants to self-identify using disaggregated race and ethnicity categories. The commenter disputed the Bureau's assessment that the potential alternative would impose substantial costs on Regulation B-only creditors. The commenter argued that the availability of the 2016 URLA would reduce the cost of collecting disaggregated race and ethnicity information, and advocated for a two-year implementation period for mandatory disaggregated collection to further reduce the costs. However, the commenter did not address the Bureau's conclusion, mentioned in the proposal and again above, that the benefits of mandatory disaggregated collection are quite limited. A credit union trade association explicitly opposed the alternative, asserting that its members would be unduly burdened by mandatory collection of disaggregated race and ethnicity information. Other commenters did not directly address this alternative, but several industry commenters supported the flexibility of the proposal with respect to collection of disaggregated race and ethnicity information, implicitly opposing making this collection mandatory.

As discussed above in Part V, the Bureau disagrees with the consumer advocacy group commenter that there would be little burden to Regulation B-only creditors from making the collection of disaggregated race and ethnicity categories mandatory. Even accepting the commenter's premise, however, the Bureau notes again that it believes the additional benefits of this alternative to be quite limited because, among other reasons, many Regulation B-only creditors are likely to eventually collect disaggregated race and ethnicity data through adoption of the 2016 URLA. Moreover, the commenter did not address the limited usefulness of disaggregated race and ethnicity data from lenders with a very low volume of loan originations. The Bureau continues to believe that the benefits of this alternative are very low. Accordingly, the Bureau is not making disaggregated race and ethnicity categories mandatory for compliance with Regulation B at this time.

The Bureau also considered eliminating entirely the requirement in Regulation B to collect and retain certain applicant information. This alternative would reduce burden to firms that do not report under HMDA. However, the Bureau believes it may impose costs on consumers. The prudential regulators confirm that data collected and retained by entities subject to Regulation B but not Regulation C may be used for fair lending supervision and enforcement. Institutions subject to Regulation B but not Regulation C include, for example, institutions that do not have a branch or home office in a Metropolitan Statistical Area (MSA), do not meet an applicable asset threshold, or do not meet an applicable loan volume threshold.

For instance, the 2015 NCUA Call Report and the 2015 Nationwide Mortgage Licensing System & Registry (NMLS) Mortgage Call Report data include 489 credit unions and 161 non-depository institutions that originated at least 25 closed-end mortgages that are not found in the 2015 HMDA data.44 In addition, many community banks in rural areas are already exempt from HMDA reporting because they do not have a branch or home office in an MSA.45 Demographic information collected under Regulation B by those institutions with larger loan volumes may be used in statistical analysis that supports fair lending supervision and enforcement. Removing the Regulation B requirement altogether would make detection of any discrimination by these entities more difficult, with potentially large costs to consumers where such discrimination exists. Even for institutions with very small volumes of originations that may not be subject to HMDA reporting because they do not meet an applicable loan volume threshold, the retained information may be useful for comparative file reviews. In 2015, there were 1,178 institutions that reported HMDA data but had fewer than 25 originations and therefore would likely be exempt under the 2015 HMDA Final Rule if they continue to originate loans at a similar volume. Although the loan volumes of most of these institutions would be too sparse for statistical analysis, the ability to conduct comparative file reviews using data retained under Regulation B has some benefit.

44 The criteria for being a financial institution and reporting transactions under HMDA are different in some ways from the criteria for reporting under the NMLS Mortgage Call Report and reporting transactions under it. It is possible that the NMLS omits some non-depository institutions that originated at least 25 closed-end mortgages, did not report HMDA data, and are subject to Regulation B. Some or all of these institutions may also not have been required to report HMDA data.

45 The Bureau does not have an estimate of the number of rural community banks that are currently exempt from HMDA reporting and originate at least 25 loans per year. The FFIEC call report for banks does not report originations for depository institutions that do not report to HMDA.

A small financial institution commenter advocated for eliminating the Regulation B requirement to collect and retain race and ethnicity information. The commenter asserted the resulting data are never used by regulators, while the collection and retention imposes a substantial burden. A credit union trade association commenter also argued that the Bureau should remove the requirement, asserting that removing it would reduce the regulatory burden on its members.

The Bureau acknowledges that the collection and retention requirement of Regulation B imposes some burden on financial institutions. As noted above, the Bureau believes that consumers could suffer substantial harm if the requirement were removed. Although it may be true in the particular case of the community bank commenter, the Bureau believes it is not the case that these data are never used by regulators. Both the Bureau's consultations with the prudential regulators and its own experience in fair lending enforcement indicate that these data are used. Accordingly, the Bureau is not removing the Regulation B requirement to collect and retain race and ethnicity information.

Model Forms for Collecting Race and Ethnicity Data

The Bureau believes that the provision to change the model forms for collecting race and ethnicity data will have modest benefits to firms collecting these data, by providing updated model forms, and reducing confusion regarding the outdated 2004 URLA. The final rule does not impose any new costs on firms, nor does the Bureau believe that consumers will experience any cost or benefit from the provision. The Bureau requested comment regarding the costs and benefits associated with this provision. Industry commenters supported the change, with several confirming the potential benefits noted above.

Allowing Voluntary Collection of Applicant Information

Regarding the provision to allow certain creditors to voluntarily collect demographic information, the Bureau believes the financial institutions that will most likely exercise such options will be low-volume, low-complexity institutions that have made a one-time investment in HMDA collection and reporting and would like to utilize that collection process already in place. The Bureau believes the final rule will provide modest benefits to such institutions, by saving on one-time adjustment costs required to shift in and out of collection. The Bureau expects that institutions will only exercise this option if voluntary collection provides a net benefit. The Bureau does not believe that consumers will experience any costs or benefits from this provision except to the extent that financial institutions achieve cost savings and pass any such cost savings on to their customers.

The Bureau requested comment regarding the costs and benefits associated with this provision. The Bureau also requested data on the number of firms that might be interested in voluntary collection under this provision. No commenters provided such data.

C. Impact on Depository Institutions and Credit Unions With $10 Billion or Less in Assets, as Described in Dodd-Frank Section 1026

The Bureau believes that depository institutions and credit unions with $10 billion or less in assets will not be differentially affected by the substantive amendments. The primary benefit to lenders from the final rule is the reduced uncertainty and compliance burden from allowing the disaggregated race and ethnicity information collected under Regulation C to be used to comply with Regulation B. Both certain depository institutions and credit unions with less than $10 billion in assets and covered persons with more than $10 billion in assets currently report data under HMDA and thus will receive these benefits. The benefits may be somewhat larger for depository institutions and credit unions with less than $10 billion in assets because the relative costs of duplicative collection will be greater for these entities.

D. Impact on Access to Credit

The Bureau does not believe that there will be an adverse impact on access to credit resulting from any of the provisions of the final rule.

E. Impact on Consumers in Rural Areas

The Bureau believes that rural areas might benefit from the provision to allow collection of disaggregated race and ethnicity information more than urban areas. One of the exceptions to the reporting requirements under HMDA is for entities that do not have a branch or home office located in an MSA. Such entities likely serve primarily customers in rural areas. To the extent that the provision benefits firms and consumers, consumers in rural areas will see the largest benefits.

VIII. Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small business, small governmental units, and small nonprofit organizations. The RFA defines a “small business” as a business that meets the size standard developed by the Small Business Administration pursuant to the Small Business Act.

The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Bureau also is subject to certain additional procedures under RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.

On March 24, 2017, the Bureau issued the 2017 ECOA Proposal on its Web site. The Bureau concluded that the proposal, if adopted, would not have a significant economic impact on any small entities and that an IRFA was therefore not required. The Bureau requested comment on the analysis under the RFA and any relevant data. The Bureau did not receive any comments on the analysis or data.

This final rule adopts the proposed rule without making changes that would affect the Bureau's conclusion that the rule will not have a significant economic impact on any small entities. All methods of compliance under current law will remain available to covered persons, including small entities, when these provisions become effective. Thus, a small entity that is in compliance with current law need not take any additional action, save those already required by the 2015 HMDA Final Rule.

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

IX. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies are generally required to seek the Office of Management and Budget (OMB)'s approval for information collection requirements prior to implementation. The collections of information related to Regulation B and Regulation C have been previously reviewed and approved by OMB and assigned OMB Control Number 3170-0013 (Regulation B) and 3170-0008 (Regulation C). Under the PRA, the Bureau may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to an information collection unless the information collection displays a valid control number assigned by OMB.

The Bureau has determined that this final rule would not impose any new or revised information collection requirements (recordkeeping, reporting or disclosure requirements) on covered entities or members of the public that would constitute collections of information requiring OMB approval under the PRA. Although some entities subject to Regulation B but not Regulation C may choose to voluntarily begin collecting disaggregated race and ethnicity information, the Bureau believes the most likely reason for this to occur is through adoption of the 2016 URLA, which is not part of the final rule.

List of Subjects in 12 CFR Part 1002

Aged, Banks, Banking, Civil rights, Consumer protection, Credit, Credit unions, Discrimination, Fair lending, Marital status discrimination, National banks, National origin discrimination, Penalties, Race discrimination, Religious discrimination, Reporting and recordkeeping requirements, Savings associations, Sex discrimination.

Authority and Issuance

For the reasons set forth above, the Bureau amends Regulation B, 12 CFR part 1002, as set forth below:

PART 1002—EQUAL CREDIT OPPORTUNITY ACT (REGULATION B) 1. The authority citation for part 1002 continues to read as follows: Authority:

12 U.S.C. 5512, 5581; 15 U.S.C. 1691b.

2. Amend § 1002.5 by adding paragraph (a)(4) to read as follows:
§ 1002.5 Rules concerning requests for information.

(a) * * *

(4) Other permissible collection of information. Notwithstanding paragraph (b) of this section, a creditor may collect information under the following circumstances provided that the creditor collects the information in compliance with appendix B to 12 CFR part 1003:

(i) A creditor that is a financial institution under 12 CFR 1003.2(g) may collect information regarding the ethnicity, race, and sex of an applicant for a closed-end mortgage loan that is an excluded transaction under 12 CFR 1003.3(c)(11) if it submits HMDA data concerning such closed-end mortgage loans and applications or if it submitted HMDA data concerning closed-end mortgage loans for any of the preceding five calendar years;

(ii) A creditor that is a financial institution under 12 CFR 1003.2(g) may collect information regarding the ethnicity, race, and sex of an applicant for an open-end line of credit that is an excluded transaction under 12 CFR 1003.3(c)(12) if it submits HMDA data concerning such open-end lines of credit and applications or if it submitted HMDA data concerning open-end lines of credit for any of the preceding five calendar years;

(iii) A creditor that submitted HMDA data for any of the preceding five calendar years but is not currently a financial institution under 12 CFR 1003.2(g) may collect information regarding the ethnicity, race, and sex of an applicant for a loan that would otherwise be a covered loan under 12 CFR 1003.2(e) if not excluded by 12 CFR 1003.3(c)(11) or (12);

(iv) A creditor that exceeded an applicable loan volume threshold in the first year of the two-year threshold period provided in 12 CFR 1003.2(g), 1003.3(c)(11), or 1003.3(c)(12) may, in the second year, collect information regarding the ethnicity, race, and sex of an applicant for a loan that would otherwise be a covered loan under 12 CFR 1003.2(e) if the loan were not excluded by 12 CFR 1003.3(c)(11) or (12);

(v) A creditor that is a financial institution under 12 CFR 1003.2(g), or that submitted HMDA data for any of the preceding five calendar years but is not currently a financial institution under 12 CFR 1003.2(g), may collect information regarding the ethnicity, race, and sex of an applicant for a loan that would otherwise be a covered loan under 12 CFR 1003.2(e) if the loan were not excluded by 12 CFR 1003.3(c)(10).

(vi) A creditor that is collecting information regarding the ethnicity, race, and sex of an applicant or first co-applicant may collect information regarding the ethnicity, race, and sex of a second or additional co-applicant for a covered loan under 12 CFR 1003.2(e) or for a second or additional co-applicant for a loan described in paragraphs (a)(4)(i) through (v) of this section.

3. Amend § 1002.12 by revising paragraph (b)(1)(i) to read as follows:
§ 1002.12 Record retention.

(b) * * *

(1) * * *

(i) Any application that it receives, any information required to be obtained concerning characteristics of the applicant to monitor compliance with the Act and this part or other similar law, any information obtained pursuant to § 1002.5(a)(4), and any other written or recorded information used in evaluating the application and not returned to the applicant at the applicant's request.

4. Amend § 1002.13 by revising paragraph (a)(1)(i) and paragraph (b) to read as follows:
§ 1002.13 Information for monitoring purposes.

(a) * * *

(1) * * *

(i) Ethnicity and race using either:

(A) For ethnicity, the aggregate categories Hispanic or Latino and not Hispanic or Latino; and, for race, the aggregate categories American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White; or

(B) The categories and subcategories for the collection of ethnicity and race set forth in appendix B to 12 CFR part 1003.

(b) Obtaining information. Questions regarding ethnicity, race, sex, marital status, and age may be listed, at the creditor's option, on the application form or on a separate form that refers to the application. The applicant(s) shall be asked but not required to supply the requested information. If the applicant(s) chooses not to provide the information or any part of it, that fact shall be noted on the form. The creditor shall then also note on the form, to the extent possible, the ethnicity, race, and sex of the applicant(s) on the basis of visual observation or surname. When a creditor collects ethnicity and race information pursuant to § 1002.13(a)(1)(i)(B), the creditor must comply with any restrictions on the collection of an applicant's ethnicity or race on the basis of visual observation or surname set forth in appendix B to 12 CFR part 1003. If there is more than one co-applicant, a creditor is permitted, but is not required, to collect the information set forth in paragraph (a) of this section from a second or additional co-applicant.

5. Effective January 1, 2018, amend Appendix B to Part 1002 by revising paragraph 1 and adding a Data Collection Model Form to the end of the Appendix to read as follows: Appendix B to Part 1002—Model Application Forms

1. This appendix contains five model credit application forms, each designated for use in a particular type of consumer credit transaction as indicated by the bracketed caption on each form. The first sample form is intended for use in open-end, unsecured transactions; the second for closed-end, secured transactions; the third for closed-end transactions, whether unsecured or secured; the fourth in transactions involving community property or occurring in community property States; and the fifth in residential mortgage transactions which contains a model disclosure for use in complying with § 1002.13 for certain dwelling-related loans. This appendix also contains a data collection model form for collecting information concerning an applicant's ethnicity, race, and sex that complies with the requirements of § 1002.13(a)(1)(i)(A) and (ii). Appendix B to 12 CFR part 1003 provides a data collection model form for collecting information concerning an applicant's ethnicity, race, and sex that complies with the requirements of § 1002.13(a)(1)(i)(B) and (ii). All forms contained in this appendix are models; their use by creditors is optional.

ER02OC17.000 6. Effective January 1, 2022, amend Appendix B to Part 1002 by revising paragraph 1 and under paragraph 3 removing the form “Uniform Residential Loan Application”.

The revision reads as follows:

Appendix B to Part 1002—Model Application Forms

1. This appendix contains four model credit application forms, each designated for use in a particular type of consumer credit transaction as indicated by the bracketed caption on each form. The first sample form is intended for use in open-end, unsecured transactions; the second for closed-end, secured transactions; the third for closed-end transactions, whether unsecured or secured; and the fourth in transactions involving community property or occurring in community property States. This appendix also contains a data collection model form for collecting information concerning an applicant's ethnicity, race, and sex that complies with the requirements of § 1002.13(a)(1)(i)(A) and (ii). Appendix B to 12 CFR part 1003 provides a data collection model form for collecting information concerning an applicant's ethnicity, race, and sex that complies with the requirements of § 1002.13(a)(1)(i)(B) and (ii). All forms contained in this appendix are models; their use by creditors is optional.

7. Amend Supplement I to Part 1002: a. Under Section 1002.5—Rules concerning requests for information: i. Paragraph 5(a)(2) is revised. ii. Paragraph 5(a)(4) is added. b. Under Section 1002.12—Record retention, Paragraph 12(b) is revised. c. Under Section 1002.13—Information for monitoring purposes: i. Paragraph 13(a)—Information to be requested is revised. ii. Paragraph 13(b)—Obtaining of information is revised. iii. Paragraph 13(c)—Disclosure to applicants is revised. d. Appendix B—Model Application Forms is removed.

The revisions and additions read as follows:

Supplement I to Part 1002—Official Interpretations Section 1002.5—Rules Concerning Requests for Information

5(a) General rules.

Paragraph 5(a)(2).

1. Local laws. Information that a creditor is allowed to collect pursuant to a “state” statute or regulation includes information required by a local statute, regulation, or ordinance.

2. Information required by Regulation C. Regulation C, 12 CFR part 1003, generally requires creditors covered by the Home Mortgage Disclosure Act (HMDA) to collect and report information about the race, ethnicity, and sex of applicants for certain dwelling-secured loans, including some types of loans not covered by § 1002.13.

3. Collecting information on behalf of creditors. Persons such as loan brokers and correspondents do not violate the ECOA or Regulation B if they collect information that they are otherwise prohibited from collecting, where the purpose of collecting the information is to provide it to a creditor that is subject to the Home Mortgage Disclosure Act or another Federal or state statute or regulation requiring data collection.

Paragraph 5(a)(4).

1. Other permissible collection of information. Information regarding ethnicity, race, and sex that is not required to be collected pursuant to Regulation C, 12 CFR part 1003, may nevertheless be collected under the circumstances set forth in § 1002.5(a)(4) without violating § 1002.5(b). The information must be retained pursuant to the requirements of § 1002.12.

Section 1002.12—Record Retention

12(b) Preservation of records.

1. Copies. Copies of the original record include carbon copies, photocopies, microfilm or microfiche copies, or copies produced by any other accurate retrieval system, such as documents stored and reproduced by computer. A creditor that uses a computerized or mechanized system need not keep a paper copy of a document (for example, of an adverse action notice) if it can regenerate all pertinent information in a timely manner for examination or other purposes.

2. Computerized decisions. A creditor that enters information items from a written application into a computerized or mechanized system and makes the credit decision mechanically, based only on the items of information entered into the system, may comply with § 1002.12(b) by retaining the information actually entered. It is not required to store the complete written application, nor is it required to enter the remaining items of information into the system. If the transaction is subject to § 1002.13 or the creditor is collecting information pursuant to § 1002.5(a)(4), however, the creditor is required to enter and retain the data on personal characteristics in order to comply with the requirements of that section.

Section 1002.13—Information for Monitoring Purposes

13(a) Information to be requested.

1. Natural person. Section 1002.13 applies only to applications from natural persons.

2. Principal residence. The requirements of § 1002.13 apply only if an application relates to a dwelling that is or will be occupied by the applicant as the principal residence. A credit application related to a vacation home or a rental unit is not covered. In the case of a two-to four-unit dwelling, the application is covered if the applicant intends to occupy one of the units as a principal residence.

3. Temporary financing. An application for temporary financing to construct a dwelling is not subject to § 1002.13. But an application for both a temporary loan to finance construction of a dwelling and a permanent mortgage loan to take effect upon the completion of construction is subject to § 1002.13.

4. New principal residence. A person can have only one principal residence at a time. However, if a person buys or builds a new dwelling that will become that person's principal residence within a year or upon completion of construction, the new dwelling is considered the principal residence for purposes of § 1002.13.

5. Transactions not covered. The information-collection requirements of this section apply to applications for credit primarily for the purchase or refinancing of a dwelling that is or will become the applicant's principal residence. Therefore, applications for credit secured by the applicant's principal residence but made primarily for a purpose other than the purchase or refinancing of the principal residence (such as loans for home improvement and debt consolidation) are not subject to the information-collection requirements. An application for an open-end home equity line of credit is not subject to this section unless it is readily apparent to the creditor when the application is taken that the primary purpose of the line is for the purchase or refinancing of a principal dwelling.

6. Refinancings. A refinancing occurs when an existing obligation is satisfied and replaced by a new obligation undertaken by the same borrower. A creditor that receives an application to refinance an existing extension of credit made by that creditor for the purchase of the applicant's dwelling may request the monitoring information again but is not required to do so if it was obtained in the earlier transaction.

7. Data collection under Regulation C. For applications subject to § 1002.13(a)(1), a creditor that collects information about the ethnicity, race, and sex of an applicant in compliance with the requirements of appendix B to 12 CFR part 1003 is acting in compliance with § 1002.13 concerning the collection of an applicant's ethnicity, race, and sex information. See also comment 5(a)(2)-2.

8. Application-by-application basis. For applications subject to § 1002.13(a)(1), a creditor may choose on an application-by-application basis whether to collect aggregate information pursuant to § 1002.13(a)(1)(i)(A) or disaggregated information pursuant to § 1002.13(a)(1)(i)(B) about the ethnicity and race of the applicant.

13(b) Obtaining of information.

1. Forms for collecting data. A creditor may collect the information specified in § 1002.13(a) either on an application form or on a separate form referring to the application. Appendix B to this part provides for two alternative data collection model forms for use in complying with the requirements of § 1002.13(a)(1)(i) and (ii) to collect information concerning an applicant's ethnicity, race, and sex. When a creditor collects ethnicity and race information pursuant to § 1002.13(a)(1)(i)(A), the applicant must be offered the option to select more than one racial designation. When a creditor collects ethnicity and race information pursuant to § 1002.13(a)(1)(i)(B), the applicant must be offered the option to select more than one ethnicity designation and more than one racial designation.

2. Written applications. The regulation requires written applications for the types of credit covered by § 1002.13. A creditor can satisfy this requirement by recording on paper or by means of computer the information that the applicant provides orally and that the creditor normally considers in a credit decision.

3. Telephone, mail applications.

i. A creditor that accepts an application by telephone or mail must request the monitoring information.

ii. A creditor that accepts an application by mail need not make a special request for the monitoring information if the applicant has failed to provide it on the application form returned to the creditor.

iii. If it is not evident on the face of an application that it was received by mail, telephone, or via an electronic medium, the creditor should indicate on the form or other application record how the application was received.

4. Video and other electronic-application processes.

i. If a creditor takes an application through an electronic medium that allows the creditor to see the applicant, the creditor must treat the application as taken in person. The creditor must note the monitoring information on the basis of visual observation or surname, if the applicant chooses not to provide the information.

ii. If an applicant applies through an electronic medium without video capability, the creditor treats the application as if it were received by mail.

5. Applications through loan-shopping services. When a creditor receives an application through an unaffiliated loan-shopping service, it does not have to request the monitoring information for purposes of the ECOA or Regulation B. Creditors subject to the Home Mortgage Disclosure Act should be aware, however, that data collection may be called for under Regulation C (12 CFR part 1003), which generally requires creditors to report, among other things, the sex and race of an applicant on brokered applications or applications received through a correspondent.

6. Inadvertent notation. If a creditor inadvertently obtains the monitoring information in a dwelling-related transaction not covered by § 1002.13, the creditor may process and retain the application without violating the regulation.

13(c) Disclosure to applicants.

1. Procedures for providing disclosures. The disclosure to an applicant regarding the monitoring information may be provided in writing. Appendix B provides data collection model forms for use in complying with § 1002.13 and that comply with § 1002.13(c). A creditor may devise its own disclosure so long as it is substantially similar. The creditor need not orally request the monitoring information if it is requested in writing.

Dated: September 8, 2017. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2017-20417 Filed 9-29-17; 8:45 am] BILLING CODE 4810-AM-P
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL 12 CFR Part 1101 [Docket No. FFIEC-2017-0003] Description of Office, Procedures, and Public Information AGENCY:

Federal Financial Institutions Examination Council (FFIEC).

ACTION:

Final rule.

SUMMARY:

The Federal Financial Institutions Examination Council (FFIEC or Council) is adopting as a final rule the interim final rule published July 3, 2017. The interim final rule announced revisions and additions to the Council's information disclosure regulations under the Freedom of Information Act (FOIA Regulations). The interim final rule also replaced the interim final rule published on December 27, 2016. The revisions in the interim final rule implement recent statutory amendments to the FOIA that are mandated by the FOIA Improvement Act of 2016, as well as update the language of the Council's regulations to more closely mirror the language of the FOIA and to reflect the Council's current FOIA procedures.

DATES:

Effective October 2, 2017.

FOR FURTHER INFORMATION CONTACT:

Ms. Judith Dupre, Executive Secretary, Federal Financial Institutions Examination Council, via telephone: (703) 516-5590, or via email: [email protected]

SUPPLEMENTARY INFORMATION:

The Council 1 is finalizing its interim rule (82 FR 30724 (July 3, 2017)), which revised its information disclosure regulations under the Freedom of Information Act 2 (FOIA Regulations). On June 30, 2016, the Freedom of Information Act (FOIA) was amended by the FOIA Improvement Act of 2016 3 (FOIA Improvement Act). Among other things, section 3 of the FOIA Improvement Act required each Federal agency to revise its disclosure regulations and procedures for processing FOIA requests in order to conform to the substantive amendments made by section 2 of the FOIA Improvement Act by December 27, 2016. Accordingly, the Council implemented the required substantive and procedural changes necessary to comply with the FOIA Improvement Act's amendments through issuance of the interim final rule (81 FR 94937 (December 27, 2016)). In addition, the Council made certain changes to its FOIA Regulations to reflect revisions brought about by prior amendments to the FOIA that were incorporated into the Council's procedures and to make the FOIA process easier for the public to navigate. In drafting these amendments to the FOIA Regulations, the Council consulted the “Guidance for Agency FOIA Regulations” issued by the U.S. Department of Justice's Office for Information Policy. No comments were received in response to the interim final rule and it is being finalized without change.

1 The members of the Council are the Board of Governors of the Federal Reserve System, the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Office of the Comptroller of the Currency, and the State Liaison Committee.

2 5 U.S.C. 552.

3 Public Law 114-185, 130 Stat. 538 (June 30, 2016).

Authority and Issuance

For the reasons set forth in the preamble, the Federal Financial Institutions Examination Council adopts as a final rule, without changes, the interim final rule amending 12 CFR 1101.4, which was published at 82 FR 30724 on July 3, 2017.

Dated: September 27, 2017. Federal Financial Institutions Examinations Council. Judith E. Dupre, Executive Secretary.
[FR Doc. 2017-21050 Filed 9-29-17; 8:45 am] BILLING CODE 7535-01-P; 6714-01-P; 6210-01-P; 4810-33-P; 4810-AM-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3697; Product Identifier 2015-NM-143-AD; Amendment 39-19062; AD 2017-20-05] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 2011-01-15, which applied to certain The Boeing Company Model 757-200, -200CB, and -300 series airplanes. AD 2011-01-15 required repetitive inspections for cracking of the fuselage skin of the crown skin panel along the chem-milled step at certain stringers, and repair if necessary. This AD adds repetitive inspections for cracking in additional areas, and repair if necessary; removes airplanes from the applicability; adds an optional skin panel replacement, which terminates all inspections; adds an optional preventive modification, which terminates certain inspections; and reduces the compliance time for certain inspections. This AD was prompted by reports of the initiation of new fatigue cracking in the fuselage skin of the crown skin panel along locally thinned channels adjacent to the chem-milled steps. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective November 6, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2017.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3697.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3697; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Eric Schrieber, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5348; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011-01-15, Amendment 39-16572 (76 FR 1351, January 10, 2011) (“AD 2011-01-15”). AD 2011-01-15 applied to certain The Boeing Company Model 757-200, -200CB, and -300 series airplanes. AD 2011-01-15 required repetitive inspections for cracking of the fuselage skin of the crown skin panel along the chem-milled step at stringers S-4L and S-4R, from station (STA) 297 through STA 439, and repair if necessary. AD 2011-01-15 also included terminating action for the repetitive inspections of the repaired areas only. AD 2011-01-15 resulted from reports of cracking in the fuselage skin of the crown skin panel. The NPRM published in the Federal Register on February 18, 2016 (81 FR 8157) (“The NPRM”). The NPRM was prompted by reports of the initiation of new fatigue cracking in the fuselage skin of the crown skin panel along locally thinned channels adjacent to the chem-milled steps. The NPRM proposed to add repetitive inspections for cracking in additional areas, and repair if necessary. The NPRM also proposed to remove airplanes from the applicability in AD 2011-01-15. The NPRM also proposed to add an optional skin panel replacement, which would terminate all inspections, and an optional preventive modification, which would terminate certain inspections.

We issued a supplemental NPRM (SNPRM) that published in the Federal Register on May 5, 2017 (82 FR 21146). The SNPRM proposed to reduce the compliance time for certain inspections.

We are issuing this AD to correct the unsafe condition on these products.

Comments

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

Supportive Comment

United Airlines and Boeing concurred with the SNPRM.

Request for Alternative Method of Compliance (AMOC)

VT Mobile Aerospace Engineering (MAE) Inc. stated that the proposed AD (in the SNPRM) affects Model 757-200 airplanes that were modified using certain VT MAE supplemental type certificates (STCs). VT MAE noted that its design at certain inspection locations is not identical to that of the Boeing STC design at those locations. Therefore, VT MAE plans to issue new service information to address the unsafe condition, and plans to request approval of an AMOC from the FAA for use of the new service information.

FedEx stated that its airplanes have been modified in accordance with the VT MAE STC, and once this AMOC is approved to address this issue, FedEx will use it to comply with the requirements in the proposed AD (in the SNPRM).

We acknowledge the commenters' remarks. Under the provisions of paragraph (n) of this AD, we will consider requests for approval of an AMOC that addresses the VT MAE STCs, if appropriate data are submitted to substantiate that the method would provide an acceptable level of safety. We have made no change to this AD in this regard.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016. This service information describes procedures for repetitive external sliding probe eddy current (EC) and external spot-probe-medium-frequency EC inspections for cracking of the crown skin panel, repair, a preventive modification, and replacement of the crown skin panel. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 652 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections (Zone 1) [Retained actions from AD 2011-01-15] 2 work-hours × $85 per hour = $170 per inspection cycle $0 $170 per inspection cycle $110,840 per inspection cycle. Inspections (Zones 2 and 3) [new action] Up to 4 work-hours × $85 per hour = Up to $340 per inspection cycle $0 Up to $340 per inspection cycle Up to $221,680 per inspection cycle. Optional modification Up to 615 work-hours × $85 per hour = Up to $52,275 Up to $26,496 Up to $78,771 Up to $51,358,692.

We have received no definitive data that enables us to provide a cost estimate for the on-condition actions or the optional replacement specified in this AD.

Authority for This Rulemaking

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

Regulatory Findings

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

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

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

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

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

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2011-01-15, Amendment 39-16572 (76 FR 1351, January 10, 2011), and adding the following new AD: 2017-20-05 The Boeing Company: Amendment 39-19062; Docket No. FAA-2016-3697; Product Identifier 2015-NM-143-AD. (a) Effective Date

This AD is effective November 6, 2017.

(b) Affected ADs

This AD replaces AD 2011-01-15, Amendment 39-16572 (76 FR 1351, January 10, 2011) (“AD 2011-01-15”).

(c) Applicability

(1) This AD applies to The Boeing Company Model 757-200 and -300 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(2) Installation of Supplemental Type Certificate (STC) ST01518SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSTC.nsf/0/38B606833BBD98B386257FAA00602538?OpenDocument&Highlight=st01518se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01518SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

(d) Subject

Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Unsafe Condition

This AD was prompted by reports of the initiation of fatigue cracking in the fuselage skin of the crown skin panel along locally thinned channels adjacent to the chem-milled steps. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin of the crown skin panel, which could result in pressure venting and consequent rapid decompression of the airplane.

(f) Compliance

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

(g) Repetitive Inspections

Do the applicable inspections required by paragraphs (g)(1), (g)(2), and (g)(3) of this AD.

(1) For all airplanes: Within the compliance time specified in paragraph (h) of this AD, do the Zone 1 inspection specified in paragraph (g)(1)(i) or (g)(1)(ii) of this AD. Repeat the applicable Part 1 or Part 2 inspection thereafter at the applicable times specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016. Accomplishing the preventive modification specified in paragraph (k)(1) of this AD or the replacement specified in paragraph (k)(2) of this AD terminates the inspections required by this paragraph.

(i) Do an external sliding probe eddy current (EC) inspection for cracking of the crown skin panel in the applicable Zone 1 areas specified in, and in accordance with, Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(ii) Do an external spot-probe-medium-frequency EC inspection for cracking of the crown skin panel in the applicable Zone 1 areas specified in, and in accordance with, Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(2) For airplanes on which any crack is found during any inspection required by paragraph (g)(1) of this AD; or any repair is installed that covers any portion of the Zone 1 inspection area specified in Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016; or the optional Zone 1 preventive modification specified in paragraph (k)(1) of this AD is installed: At the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016, except as required by paragraph (l)(1) of this AD: Do the Zone 2 inspection specified in paragraph (g)(2)(i) or (g)(2)(ii) of this AD. Repeat the applicable Part 4 or Part 5 inspection thereafter at the applicable times specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016. Accomplishing the replacement specified in paragraph (k)(2) of this AD terminates the inspections required by this paragraph.

(i) Do an external sliding probe EC inspection for cracking of the crown skin panel in the applicable Zone 2 areas specified in, and in accordance with, Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(ii) Do an external spot-probe-medium-frequency EC inspection for cracking of the crown skin panel in the applicable Zone 2 areas specified in, and in accordance with, Part 5 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(3) For airplanes on which any crack is found during any inspection required by paragraph (g)(1) of this AD; or any repair is installed that covers any portion of the Zone 1 inspection area specified in Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016; or the optional Zone 1 preventive modification specified in paragraph (k)(1) of this AD is installed: At the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016, except as required by paragraph (l)(1) of this AD, do the Zone 3 inspection specified in paragraph (g)(3)(i) or (g)(3)(ii) of this AD. Repeat the applicable Part 6 or Part 7 inspection thereafter at the applicable times specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016. Accomplishing the replacement specified in paragraph (k)(2) of this AD terminates the inspections required by this paragraph.

(i) Do an external sliding probe EC inspection for cracking of the crown skin panel in the applicable Zone 3 areas specified in, and in accordance with, Part 6 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(ii) Do an external spot-probe-medium-frequency EC inspection for cracking of the crown skin panel in the applicable Zone 3 areas specified in, and in accordance with, Part 7 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(h) Initial Compliance Time for Inspection Required by Paragraph (g)(1) of This AD

Within the applicable compliance times specified in paragraphs (h)(1), (h)(2), (h)(3), and (h)(4) of this AD, whichever occurs latest: Do the initial inspection required by paragraph (g)(1) of this AD.

(1) For all airplanes: Before the accumulation of 15,000 total flight cycles.

(2) For airplanes on which an external sliding probe EC inspection for Zone 1, as specified in Boeing Special Attention Service Bulletin 757-53-0097, has been done as of the effective date of this AD: Within 620 flight cycles after accomplishing the most recent external sliding probe EC inspection for Zone 1.

(3) For airplanes on which an external spot-probe-medium-frequency EC inspection for Zone 1, as specified in Boeing Special Attention Service Bulletin 757-53-0097, has been done as of the effective date of this AD: Within 200 flight cycles after accomplishing the most recent external spot-probe-medium-frequency EC inspection for Zone 1.

(4) For all airplanes: Within 200 flight cycles or 90 days after the effective date of this AD, whichever occurs first.

(i) Post-Preventive Modification Supplemental Inspections

For airplanes on which a preventive modification has been installed as specified in Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016: At the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016; do eddy current and detailed inspections for cracking of the applicable areas of the fuselage skin of the doublers, triplers, and fillers of the preventive modification, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016. Repeat the inspection thereafter at the applicable times specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(j) Repair

If any cracking is found during any inspection required by paragraph (g)(1), (g)(2), (g)(3), or (i) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (n) of this AD. Doing the repair ends the repetitive inspections for the repaired area only.

(k) Optional Terminating Actions

(1) Accomplishing the preventive modification, including doing high frequency EC open-hole inspections for cracking in the existing fastener holes, in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016, except as required by paragraph (l)(2) of this AD, terminates the inspections required by paragraph (g)(1) of this AD, provided the preventive modification is done before further flight after accomplishing an inspection required by paragraph (g)(1) of this AD. If any cracking is found during any high frequency EC open-hole inspection, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (n) of this AD.

(2) Replacing the crown skin panel between station (STA) 297 and STA 439, and stringers S-4L and S-4R, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016, or using a method approved in accordance with the procedures specified in paragraph (n) of this AD, terminates the inspections required by paragraphs (g)(1), (g)(2), and (g)(3) of this AD.

(l) Exceptions to Service Information Specifications and Preventive Modification

(1) Where Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016, specifies a compliance time “after the Revision 2 date of this service bulletin,” or “after the Revision 3 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

(2) Where Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016, specifies to contact Boeing for repair instructions: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (n) of this AD.

(m) Credit for Previous Actions

This paragraph provides credit for Zone 1 inspections required by paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 757-53-0097, dated November 22, 2010 (which was incorporated by reference in AD 2011-01-15); Boeing Special Attention Service Bulletin 757-53-0097, Revision 1, dated January 6, 2011; or Boeing Special Attention Service Bulletin 757-53-0097, Revision 2, dated July 28, 2015.

(n) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (o)(1) of this AD. Information may be emailed to: [email protected]

(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

(4) AMOCs approved for AD 2011-01-15 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD; except, as of the effective date of this AD, AMOCs that extend the initial compliance times specified in AD 2011-01-15 are no longer approved for the compliance time extension, and the compliance times required by this AD must be complied with.

(5) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (n)(5)(i) and (n)(5)(ii) apply.

(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

(o) Related Information

(1) For more information about this AD, contact Eric Schrieber, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5348; fax: 562-627-5210; email: [email protected]

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

(p) Material Incorporated by Reference

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

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

(i) Boeing Special Attention Service Bulletin 757-53-0097, Revision 3, dated December 2, 2016.

(ii) Reserved.

(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com.

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

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

Issued in Renton, Washington, on September 14, 2017. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2017-20689 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0532; Product Identifier 2016-NM-203-AD; Amendment 39-19060; AD 2017-20-03] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 7X airplanes. This AD was prompted by a review showing that inadequate clearance may exist between certain electrical wiring and nearby structures. This AD requires an inspection of certain electrical wiring bundles and feeders, modifications, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective November 6, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2017.

ADDRESSES:

For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0532.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0532; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the Federal Register on June 12, 2017 (82 FR 26867) (“the NPRM”). The NPRM was prompted by a review showing that inadequate clearance may exist between certain electrical wiring and nearby structures. The NPRM proposed to require an inspection of certain electrical wiring bundles and feeders, modifications, and corrective actions if necessary. We are issuing this AD to detect and correct inadequate clearances between electrical wiring and nearby structures, which could lead to interference or contact with a structure and cause an electrical short circuit or fluid leakage. This could result in the loss of several functions essential for safe flight.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0230, dated November 21, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X airplanes. The MCAI states:

A review of the wiring and tubing lay-out showed that there may be low clearance between electrical wiring and nearby structure. Although no in-service incident has been reported, the minimum clearances could deteriorate over time.

This condition, if not detected and corrected, could lead to interference or contact with structure, provoking an electrical short circuit or fluid leakage, possibly resulting in loss of several functions essential for safe flight.

To initially address this potential unsafe condition, [Dassault Aviation] DA developed some interim modifications (mod) addressing the risk of short circuit and fluid leakage, and EASA issued AD 2010-0029 (later revised) [which corresponds to FAA AD 2011-14-04, Amendment 39-16739 (76 FR 39256, July 6, 2011) (“AD 2011-14-04”)] to require embodiment of those modifications in-service.

Since EASA AD 2010-0029R1 was issued, DA developed another set of modifications, available for in-service application through Service Bulletin (SB) F7X-056, which are considered the final solutions for this unsafe condition.

For the reasons described above, this [EASA] AD requires a one-time [general visual] inspection [for worn or damaged wiring or connectors due to inadequate clearance between wiring and nearby structures] of the affected electrical wiring and, depending on findings, corrective action(s) and modification of the aeroplane.

Corrective actions include modifying the clamping and routing; adding new brackets, clamps, and cable protections; replacing damaged parts; and improving connections using lock wires. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0532.

Comments

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

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

Dassault Aviation has issued Service Bulletin 7X-056, Revision 1, dated July 20, 2016. This service information describes procedures for an inspection of certain electrical wiring (wiring bundles and feeders), corrective actions, and modification of the airplane. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 51 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection and modifications 31 work-hours × $85 per hour = $2,635 $7,660 $10,295 $525,045

    We have received no definitive data that will enable us to provide cost estimates for the on-condition actions specified in this AD.

    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-20-03 Dassault Aviation: Amendment 39-19060; Docket No. FAA-2017-0532; Product Identifier 2016-NM-203-AD. (a) Effective Date

    This AD is effective November 6, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, serial numbers (S/Ns) 2 through 215 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 20, Standard Practices Airframe—Electrical Wiring.

    (e) Reason

    This AD was prompted by a review showing that inadequate clearance may exist between certain electrical wiring and nearby structures. We are issuing this AD to detect and correct inadequate clearances between electrical wiring and nearby structures, which could lead to interference or contact with a structure and cause an electrical short circuit or fluid leakage. This could result in the loss of several functions essential for safe flight.

    (f) Compliance

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

    (g) Inspection, Modification, and Corrective Actions

    Within 99 months or 4,100 flight cycles, whichever occurs first, since the date of issuance of the original airworthiness certificate or date of issuance of the original export certificate of airworthiness; or within 60 days after the effective date of this AD; whichever occurs later: Do a general visual inspection of the affected electrical wiring of the airplane for worn or damaged wiring or connectors due to inadequate clearance between wiring and nearby structures, accomplish all applicable corrective actions, and modify the airplane, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-056, Revision 1, dated July 20, 2016, as specified in table 1 to paragraph (g) of this AD. Do all applicable corrective actions before further flight. The “Dassault service bulletin 7X-056 section” identified in table 1 to paragraph (g) of this AD is not required for airplanes on which a corresponding Dassault modification has been embodied in production, as identified in the “Excluded” column in table 1 to paragraph (g) of this AD.

    Table 1 to Paragraph (g) of This AD—Applicable Sections of Dassault Service Bulletin 7X-056, Revision 1, Dated July 20, 2016 Dassault Service Bulletin 7X-056 section Excluded 7X-056-1 Post-mod M876. 7X-056-2 Post-mod M897. 7X-056-3 Post-mod M900. 7X-056-4 S/Ns 132 through 215 inclusive. 7X-056-5 Post-mod M954. 7X-056-6 Post-mod M980. 7X-056-7 Post-mod M1021. 7X-056-8 None. (h) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Dassault Service Bulletin 7X-056, issued October 30, 2014.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected]. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0230, dated November 21, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0532.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

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

    (k) Material Incorporated by Reference

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

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

    (i) Dassault Service Bulletin 7X-056, Revision 1, dated July 20, 2016.

    (ii) Reserved.

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

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

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

    Issued in Renton, Washington, on September 18, 2017. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-20691 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0518; Product Identifier 2016-NM-167-AD; Amendment 39-19064; AD 2017-20-07] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model DHC-8-400 series airplanes. This AD was prompted by the failure of the fire control amplifier (FCA), which was likely caused by an electrical short in a discharged squib for a fire extinguishing bottle. This AD requires replacing certain circuit breakers. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 6, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0518.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0518; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Assata Dessaline, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model DHC-8-400 series airplanes. The NPRM published in the Federal Register on June 2, 2017 (82 FR 25554) (“the NPRM”). The NPRM was prompted by the failure of the FCA, which was likely caused by an electrical short in a discharged squib for a fire extinguishing bottle. The NPRM proposed to require replacing certain circuit breakers. We are issuing this AD to prevent failure of the FCA and subsequent discharge of fire extinguishing bottles and false fire indications, leaving the flight crew with reduced firefighting capability in the event of a fire.

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-25, dated August 22, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model DHC-8-400 series airplanes. The MCAI states:

    An operator reported having a false SMOKE warning light for the Aft Baggage compartment, which caused the pilots to discharge the Aft Baggage compartment fire extinguishing bottles per Aircraft Flight Manual procedures. Subsequently, there were continuous engine and Auxiliary Power Unit (APU) fire warning lights, and the fire extinguishing bottles for both engines (forward and aft) and the APU were automatically discharged. Post event investigation of the Fire Control Amplifier (FCA) revealed a burnt 2600-P2 connector. The FCA was also found to have sustained significant thermal damage. In a separate event involving a different operator, several fire extinguishing bottles discharged after an electrical short was introduced into the FCA by a shorted squib tester (external ground support equipment) during maintenance.

    The FCA manufacturer has identified the most likely failure condition to be an electrical short at the discharged squib. The squib's burst disk may have caused a short circuit of the bridgewires, which caused the FCA's internal power wires to experience thermal damage, consequently powering other squibs and fire alarm lines and resulting in the uncommanded discharge of the fire extinguishing bottles and false fire indications.

    Bombardier (BA) has issued service bulletin (SB) 84-26-16 to change two 7.5 amp circuit breakers to lower current rating 1 amp circuit breakers to prevent damage to squib discharge circuits and the inadvertent discharge of fire extinguishing bottles.

    This [Canadian] AD mandates the incorporation of [Bombardier] SB 84-26-16 to prevent the inadvertent discharge of fire extinguishing bottles [leaving the flight crew with reduced firefighting capability in the event of a fire].

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0518.

    Comments

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

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Bombardier, Inc., has issued Service Bulletin 84-26-16, Revision A, dated February 12, 2016. This service information describes procedures for locating and replacing certain 7.5-amp circuit breakers with 1-amp circuit breakers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 53 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Replacement of circuit breakers 3 work-hours × $85 per hour = $255 $0 $255 $13,515
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-20-07 Bombardier, Inc.: Amendment 39-19064; Docket No. FAA-2017-0518; Product Identifier 2016-NM-167-AD. (a) Effective Date

    This AD is effective November 6, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc., Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001, and 4003 through 4504 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 26, Fire protection.

    (e) Reason

    This AD was prompted by the failure of the fire control amplifier (FCA), which was likely caused by an electrical short in a discharged squib for a fire extinguishing bottle. We are issuing this AD to prevent failure of the FCA and subsequent discharge of fire extinguishing bottles and false fire indications, leaving the flight crew with reduced firefighting capability in the event of a fire.

    (f) Compliance

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

    (g) Replacement of Affected Circuit Breakers

    Within 6,000 flight hours or 3 years, whichever occurs first, after the effective date of this AD: Replace the 7.5-amp circuit breakers specified in Bombardier Service Bulletin 84-26-16, Revision A, dated February 12, 2016, with 1-amp circuit breakers having part number MS3320-1, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-26-16, Revision A, dated February 12, 2016.

    (h) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 84-26-16, dated August 14, 2015.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2016-25, dated August 22, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0518.

    (2) For more information about this AD, contact Assata Dessaline, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.

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

    (k) Material Incorporated by Reference

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

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

    (i) Bombardier Service Bulletin 84-26-16, Revision A, dated February 12, 2016.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email [email protected]; Internet http://www.bombardier.com.

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

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

    Issued in Renton, Washington, on September 20, 2017. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-20824 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9522; Product Identifier 2016-NM-144-AD; Amendment 39-19065; AD 2017-20-08] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2009-17-01, which applied to certain Gulfstream Model G-IV, GIV-X, GV-SP airplanes and Model GV airplanes. AD 2009-17-01 required an inspection for sealant applied to the exterior of the auxiliary power unit (APU) enclosure (firewall), and a revision of the airplane flight manual (AFM), as applicable. This AD requires revising the AFM and revising the applicability to include additional airplanes. This AD was prompted by a report indicating that the type design sealant applied to the APU enclosure failed certain tests. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 6, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 6, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9522.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9522; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Ky Phan, Aerospace Engineer, Propulsion and Services Section, FAA, Atlanta ACO Branch, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5536; fax: 404-474-5606; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2009-17-01, Amendment 39-15991 (74 FR 40061, August 11, 2009) (“AD 2009-17-01”). AD 2009-17-01 applied to certain Gulfstream Model G-IV, GIV-X, GV-SP airplanes, and Model GV airplanes. The NPRM published in the Federal Register on January 4, 2017 (82 FR 737) (“the NPRM”). The NPRM was prompted by a report indicating that the type design sealant (Aerospace Material Specification (AMS) 3374), applied to the APU enclosure, does not meet the requirement in 14 CFR 25.1191(b)(1) for a firewall to be fireproof, and failed a certification test and a company test. The NPRM proposed to require revising the AFM and revising the applicability to include additional airplanes. We are issuing this AD to provide the flight crew with operating procedures for airplanes that have AMS 3374 or Gulfstream Material Specification (GMS) 4107 sealant applied to the APU enclosure (firewall). Under certain anomalous conditions such as an APU failure/APU compartment fire, AMS 3374 or GMS 4107 sealant could ignite the exterior surfaces of the APU enclosure, and result in propagation of an uncontained fire to other critical areas of the airplane.

    Comments

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

    Request To Withdraw the NPRM

    Gulfstream requested that the NPRM be withdrawn. The commenter stated that the FAA's findings and decisions in the proposed AD are not based on analysis of the commenter's supporting data and accepted risk and safety assessment methodologies. The commenter asserted that its risk assessments, performed using the FAA's Transport Airplane Risk Assessment Methodology (TARAM) Handbook, are within the allowable guidelines of the FAA's TARAM Handbook.

    We do not agree with the commenter's request because this final rule is consistent with FAA policy and orders. The FAA's TARAM is used to assess risk associated with a wide variety of potential safety issues. The FAA typically follows the defined risk guidelines contained in the TARAM Handbook for transport category airplanes. However, occasionally, other factors affect the decision on whether to issue an AD. FAA Order 8110.107A, “Monitor Safety/Analyze Data,” paragraph 2-10.e. states:

    In rare situations the Aviation Safety Engineer or FAA management may, based on factors unrelated to the risk analysis, make recommendations not consistent with risk guidelines for ADs or other mandatory corrective actions. The decision to accept or reject these recommendations is made during the CARB [Corrective Action Review Board].

    One such factor, unrelated to risk analysis, is whether the affected system provides an emergency or safety function. Examples of emergency/safety systems include seatbelts, life rafts, oxygen systems, and firewalls. Failure of emergency systems typically do not cause an accident, but can greatly increase the probability of fatalities in the event of an additional unrelated failure. TARAM analyses of emergency/safety systems typically indicate a low TARAM risk. This is due to the fact that the precipitating event is very rare, for example, high-g decelerations due to an accident, ditching, explosive decompression, and engine fire. Ultimately, the decision regarding whether to mandate airworthiness action for a condition is the responsibility of the FAA's CARB, which for this AD was comprised of representatives from the Atlanta ACO Branch, Transport Airplane Directorate, Atlanta MIDO Section, and the Aircraft Evaluation Group. The CARB unanimously concluded that factors other than the TARAM risk indicated the need to mandate corrective action for Gulfstream APU firewalls assembled using AMS 3374 sealant, in addition to the previously mandated requirements for Gulfstream APU firewalls assembled using GMS 4107 sealant.

    Several 14 CFR part 25 regulations are intended to prevent the spread of a fire to other critical areas of an airplane in the event of an in-flight or ground fire; one of these regulations is 14 CFR 25.1191 (“Firewalls”). The 14 CFR part 25 regulations include requirements for (1) fire detection, (2) fire suppression, and (3) fire containment by a firewall. The AMS 3374 sealant, as applied to the Gulfstream APU firewall type designs that are the subject of this AD, has been shown by fire testing to result in backside (cold side) ignition of the firewall when exposed to a 2,000 degree Fahrenheit flame for 15 minutes, thus violating the 14 CFR part 25 requirement for the firewall to be fireproof (refer to FAA Advisory Circular (AC) 20-135, “Powerplant Installation and Propulsion System Component Fire Protection Test Methods, Standards and Criteria,” dated February 6, 1990 (“AC 20-135”), for firewall fire testing guidance.) Previous fire testing also confirmed that Gulfstream APU firewalls assembled with GMS 4107 exhibited backside ignition during those tests. The backside ignition of the Gulfstream APU firewalls occurred in an area of the airplane that does not have fire detection or fire suppression. This is a non-compliance with the requirements of 14 CFR 25.1191(b)(1) for firewalls to be fireproof. If an APU fire occurred in flight or on the ground on such a non-compliant airplane, it could result in backside ignition of the firewall, potentially resulting in propagation of an uncontained fire to other critical areas of the airplane. The area outside and adjacent to the Gulfstream APU firewall contains many airplane critical systems such as empennage structure, flight control components, fuel lines, and oil lines. The FAA finds that APU operations on the affected Gulfstream models without a firewall that is fireproof, as required by 14 CFR 25.1191, constitutes an unsafe condition. The FAA performed an additional TARAM analysis, which indicated a higher risk than the results of the original Gulfstream TARAM analysis. However, we want to point out that neither TARAM analysis was the sole consideration for mandating corrective action. We have made no changes to this AD in this regard.

    Request for Separate AD Action for AMS 3374 Sealant

    Gulfstream requested that the FAA issue a separate rulemaking action to address the use of AMS 3374 sealant. The commenter deems it inaccurate to associate the GMS 4107 sealant unsafe condition with the application of the AMS 3374 sealant. Gulfstream also considers the corrective actions to be significantly different for the two types of sealants.

    We disagree with the commenter's request. Many of the Gulfstream airplanes affected by this AD have both GMS 4107 and AMS 3374 sealants used in the fabrication of APU firewalls. The use of GMS 4107 and/or AMS 3374 sealants, per the Gulfstream type design for the APU firewalls that are the subject of this AD action, has resulted in backside ignition of the APU firewall in fire tests that were intended to demonstrate that the firewalls are fireproof. The corrective action for both types of sealants is identical, applying restrictions on APU operations. The corrective actions specified in the AD being superseded, AD 2009-17-01, did not address APU firewalls fabricated using AMS 3374 sealant. Subsequent fire testing has shown that AMS 3374 sealant, used as specified in the Gulfstream type design, does not comply with the regulations that require a firewall to be fireproof; therefore, AD 2009-17-01 must be superseded to include APU firewalls fabricated using AMS 3374 sealant. Future rulemaking to incorporate a solution proposed by Gulfstream might be considered when and if a proposed solution is made available to the FAA. We have made no changes to this AD in this regard.

    Request To Clarify Terminology

    Gulfstream requested that the FAA revise the NPRM by removing all of the statements that AMS 3374 sealant is flammable. The commenter stated that it is not accurate to make a general statement that AMS 3374 sealant is flammable because there are many applications where AMS 3374 sealants are compliant with applicable fireproof certification requirements.

    We partially agree with the commenter's request. The FAA's certification requirement is that firewalls be fireproof, not that the sealant be fireproof. The FAA does not have specific requirements for sealant, apart from the requirement that its use in the assembly of firewalls must result in a fireproof firewall assembly.

    Also, the commenter's statement that there are many applications where AMS 3374 sealants are compliant with applicable fireproof certification requirements may be partially correct. There could be firewalls assembled using AMS 3374 sealants that do meet the applicable fireproof certification requirements. The issue addressed by this final rule is that Gulfstream's application of AMS 3374 sealant to the APU firewall assemblies affected by this rulemaking action is not compliant with the airworthiness requirement for the firewall to be fireproof. The AMS 3374 sealant does meet the requirements of an industry specification, the Society of Automotive Engineers (SAE) Standard AMS 3374. Compliance with an SAE standard is not equivalent to, and does not satisfy, compliance with the FAA certification requirement that firewalls be fireproof. AC 20-135 is used throughout the aviation industry as guidance material for how to show compliance with the FAA's requirement that firewalls be fireproof. Regarding the use of sealants, AC 20-135 provides the following guidance:

    Outgassing. A characteristic of bonded construction firewall materials and seal materials is the outgassing of the volatile constituents of the bonding resins or seal materials. This can occur from either the hot or cool side surface of the specimens during the test. These gasses are, in most instances, highly flammable. Ignition occurring on the cool side is unacceptable in passing the fire test. . . . For these types of construction, no “cool side” ignition is allowed and verification is required.

    There are many variables that determine if a given firewall configuration meets the airworthiness requirement to be fireproof. Sealants are known to outgas volatile constituents. In the case of the Gulfstream APU firewall type design, outgassed constituents of AMS 3374 sealant ignited on the backside during fire testing, and therefore, the firewall does not meet the definition of fireproof per AC 20-135. We have changed the wording in this final rule to specify that the type design sealant (AMS 3374), as applied in the Gulfstream APU firewall, does not meet the airworthiness requirement in 14 CFR 25.1191(b)(1), for a firewall to be fireproof.

    We do not agree that AMS 3374 sealant is compliant with applicable fireproof certification requirements because the FAA does not certificate sealants; the FAA certificates that firewalls are fireproof. Therefore, we have made no changes to this AD in this regard.

    Request To Revise the Estimated Costs of Compliance

    Gulfstream requested that the estimated costs of compliance in the NPRM be revised to include costs associated with an operator's inability to use the APU during normal operations, and the cost associated with a terminating action. The commenter noted that the estimated costs in the NPRM are associated with physically revising the AFM by inserting the applicable AFM supplement (AFMS). The commenter stated that the costs associated with a terminating action that would allow an operator to use its APU in flight is much more expensive, and depending on the number of airplanes that need to be retrofitted, the costs are likely to be tens of millions of dollars.

    The FAA did not include any costs associated with an operator's inability to use the APU during normal operations because APU usage is not required by the FAA for the operation of any of the affected aircraft. This final rule does allow APU usage during certain emergencies.

    We acknowledge that the costs associated with a terminating action, which would allow an operator to have use of its APU in flight, may be higher because the costs associated with retrofit of the airplane are likely to be higher than for implementing the change to the AFMS. This final rule only provides the costs associated with implementing the AFMS that restricts APU operations. There are no hardware or modification costs associated with this final rule.

    We do not agree with the commenter's request to revise the estimated costs of compliance. The FAA uses a standard labor rate of $85 per hour for evaluation of all airworthiness actions, regardless of who performs the corrective action. The only cost associated with this final rule is for revising the AFM by inserting the applicable AFMS. Therefore, we have made no changes to this final rule regarding this issue.

    Additional Change Made to This Final Rule

    The FAA no longer considers this final rule to be an “interim action” and reference to “interim action,” which was included in the NPRM, has been omitted from this final rule. The FAA will accept the AFMS restrictions on APU operation as terminating action. If Gulfstream proposes design changes that would eliminate the APU firewall unsafe condition addressed by this AD, the FAA might consider further rulemaking.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed the following Gulfstream AFMSs. The AFMSs provide operating limitations on the use of the APU during certain ground and flight operations. These documents are distinct since they apply to different airplane models.

    • Gulfstream GIV/G300/G400 AFM Supplement GIV-2016-01, dated July 27, 2016, to the Gulfstream GIV AFM, dated April 22, 1987; the Gulfstream G300 AFM, dated January 15, 2003; and the Gulfstream G400 AFM, dated November 18, 2002.

    • Gulfstream G450/G350 AFM Supplement G450-2016-01, dated July 27, 2016, to the Gulfstream G450 AFM, dated August 12, 2004; and the Gulfstream G350 AFM, dated October 28, 2004.

    • Gulfstream GV AFM Supplement GV-2016-01, dated July 27, 2016, to the Gulfstream GV AFM, dated April 11, 1997.

    • Gulfstream G550/G500 AFM Supplement G550-2016-01, dated July 27, 2016, to the Gulfstream G550 AFM, dated August 14, 2003; and the Gulfstream G500 AFM, dated December 5, 2003.

    • Gulfstream GVI (G650) AFM Supplement G650-2016-01, dated July 27, 2016, to the Gulfstream GVI (G650) AFM, dated September 7, 2012.

    • Gulfstream GVI (G650ER) AFM Supplement G650ER-2016-03, dated July 27, 2016, to the Gulfstream GVI (G650ER) AFM, dated October 2, 2014.

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

    Costs of Compliance

    We estimate that this AD affects 1,220 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    AFM revision 1 work-hour × $85 per hour = $85 $0 $85 $103,700
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2009-17-01, Amendment 39-15991 (74 FR 40061, August 11, 2009), and adding the following new AD: 2017-20-08 Gulfstream Aerospace Corporation: Amendment 39-19065; Docket No. FAA-2016-9522; Product Identifier 2016-NM-144-AD. (a) Effective Date

    This AD is effective November 6, 2017.

    (b) Affected ADs

    This AD replaces AD 2009-17-01, Amendment 39-15991 (74 FR 40061, August 11, 2009) (“AD 2009-17-01”).

    (c) Applicability

    This AD applies to the Gulfstream Aerospace Corporation airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(5) of this AD.

    (1) Model G-IV airplanes, having serial numbers (S/Ns) 1000 and subsequent.

    (2) Model GIV-X airplanes, having S/Ns 4001 and subsequent.

    (3) Model GV airplanes, having S/Ns 501 and subsequent.

    (4) Model GV-SP airplanes, having S/Ns 5001 and subsequent.

    (5) Model GVI airplanes, having S/Ns 6001 and subsequent.

    (d) Subject

    Air Transport Association (ATA) of America Code 49, Airborne Auxiliary Power; and 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by a report indicating that the type design sealant (Aerospace Material Specification (AMS) 3374), as applied to the auxiliary power unit (APU) enclosure (firewall), does not meet the requirement in 14 CFR 25.1191(b)(1) for a firewall to be fireproof, and failed a certification test and a company test. We are issuing this AD to provide the flight crew with operating procedures for airplanes that have AMS 3374 or Gulfstream Material Specification (GMS) 4107 sealant applied to the APU enclosure. Under certain anomalous conditions such as an APU failure/APU compartment fire, AMS 3374 or GMS 4107 sealant could ignite the exterior surfaces of the APU enclosure and result in propagation of an uncontained fire to other critical areas of the airplane.

    (f) Compliance

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

    (g) Airplane Flight Manual (AFM) Revision

    Within 30 days after the effective date of this AD, revise the Limitations Section of the applicable Gulfstream AFM specified in paragraphs (h)(1) through (h)(6) of this AD to include the information in the applicable Gulfstream AFM supplement (AFMS) specified in paragraphs (h)(1) through (h)(6) of this AD. These AFMSs introduce operating limitations on the use of the APU during certain ground and flight operations. This AFM revision may be done by inserting a copy of the applicable AFMS into the applicable AFM specified in paragraphs (h)(1) through (h)(6) of this AD. When the AFMS has been included in the general revision of the AFM, the general revision may be inserted into the AFM, provided the relevant information in the general revision is identical to that in the applicable AFMS specified in paragraphs (h)(1) through (h)(6) of this AD.

    (h) AFMSs

    For the AFM revision required by paragraph (g) of this AD, insert the applicable AFMS into the applicable Gulfstream AFM identified in paragraphs (h)(1) through (h)(6) of this AD.

    (1) Gulfstream GIV/G300/G400 AFM Supplement GIV-2016-01, dated July 27, 2016, to the Gulfstream GIV AFM, dated April 22, 1987; the Gulfstream G300 AFM, dated January 15, 2003; and the Gulfstream G400 AFM, dated November 18, 2002.

    (2) Gulfstream G450/G350 AFM Supplement G450-2016-01, dated July 27, 2016, to the Gulfstream G450 AFM, dated August 12, 2004; and the Gulfstream G350 AFM, dated October 28, 2004.

    (3) Gulfstream GV AFM Supplement GV-2016-01, dated July 27, 2016, to the Gulfstream GV AFM, dated April 11, 1997.

    (4) Gulfstream G550/G500 AFM Supplement G550-2016-01, dated July 27, 2016, to the Gulfstream G550 AFM, dated August 14, 2003; and the Gulfstream G500 AFM, dated December 5, 2003.

    (5) Gulfstream GVI (G650) AFM Supplement G650-2016-01, dated July 27, 2016, to the Gulfstream GVI (G650) AFM, dated September 7, 2012.

    (6) Gulfstream GVI (G650ER) AFM Supplement G650ER-2016-03, dated July 27, 2016, to the Gulfstream GVI (G650ER) AFM, dated October 2, 2014.

    (i) Credit for Previous Actions

    This paragraph provides credit for the action required by paragraph (g) of this AD, if that action was performed before the effective date of this AD using the applicable service information specified in paragraphs (i)(1) through (i)(4) of this AD. This service information was incorporated by reference in AD 2009-17-01.

    (1) Gulfstream G-IV/G300/G400 AFM Supplement G-IV-2009-02, Revision 1, dated June 25, 2009, to the Gulfstream GIV AFM, the Gulfstream G300 AFM, and the Gulfstream G400 AFM.

    (2) Gulfstream G450/G350 AFM Supplement G450-2009-03, Revision 1, dated June 25, 2009, to the Gulfstream G450 AFM and the Gulfstream G350 AFM.

    (3) Gulfstream GV AFM Supplement GV-2009-03, Revision 1, dated June 25, 2009, to the Gulfstream GV AFM.

    (4) Gulfstream G550/G500 AFM Supplement G550-2009-03, Revision 1, dated June 25, 2009, Gulfstream G550 AFM and the Gulfstream G500 AFM.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(1) of this AD.

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) AMOCs approved previously for paragraph (h) of AD 2009-17-01 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.

    (k) Related Information

    (1) For more information about this AD, contact Ky Phan, Aerospace Engineer, Propulsion and Services Section, FAA, Atlanta ACO Branch, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5536; fax: 404-474-5606; email: [email protected]

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

    (l) Material Incorporated by Reference

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

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

    (i) Gulfstream GIV/G300/G400 Airplane Flight Manual (AFM) Supplement GIV-2016-01, dated July 27, 2016, to the Gulfstream GIV AFM, dated April 22, 1987; the Gulfstream G300 AFM, dated January 15, 2003; and the Gulfstream G400 AFM, dated November 18, 2002.

    (ii) Gulfstream G450/G350 Airplane Flight Manual (AFM) Supplement G450-2016-01, dated July 27, 2016, to the Gulfstream G450 AFM, dated August 12, 2004; and the Gulfstream G350 AFM, dated October 28, 2004.

    (iii) Gulfstream GV Airplane Flight Manual (AFM) Supplement GV-2016-01, dated July 27, 2016, to the Gulfstream GV AFM, dated April 11, 1997.

    (iv) Gulfstream G550/G500 Airplane Flight Manual (AFM) Supplement G550-2016-01, dated July 27, 2016, to the Gulfstream G550 AFM, dated August 14, 2003; and the Gulfstream G500 AFM, dated December 5, 2003.

    (v) Gulfstream GVI (G650) Airplane Flight Manual (AFM) Supplement G650-2016-01, dated July 27, 2016, to the Gulfstream GVI (G650) AFM, dated September 7, 2012.

    (vi) Gulfstream GVI (G650ER) Airplane Flight Manual (AFM) Supplement G650ER-2016-03, dated July 27, 2016, to the Gulfstream GVI (G650ER) AFM, dated October 2, 2014.

    (3) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm.

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

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

    Issued in Renton, Washington, on September 18, 2017. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-20831 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0099; Product Identifier 2017-NE-02-AD; Amendment 39-19035; AD 2017-19-05] RIN 2120-AA64 Airworthiness Directives; Siemens S.A.S. Smoke Detectors Republication Editorial Note:

    Rule document 2017-20425 was originally published on pages 44717 through 44720 in the issue of Tuesday, September 26, 2017. In that publication, on page 44719, in Figure 1, a number was omitted from the first entry under column “P/N”. Also in that publication, on page 44720, in Figure 3, a number was omitted from the table heading. The corrected document is published here in its entirety.

    AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Siemens S.A.S. smoke detectors installed on various transport category airplanes. This AD requires inspection and replacement of the affected smoke detectors. This AD was prompted by a report that the affected smoke detectors failed an acceptance test. We are issuing this AD to correct the unsafe condition on these products.

    DATES:

    This AD becomes effective October 31, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 31, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Siemens, Aviation Customer Support, 697 Rue Fourny, 78530 Buc, France; phone: (33) 1 3084 6650; fax: (33) 1 3956 1364. You may view this service information at the FAA, Engine and Propeller Standards Branch, Policy and Innovation Division, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781- 238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0099.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0099; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Erin Hulverson, Aerospace Engineer, FAA, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7655; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on April 20, 2017 (82 FR 18588). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

    During a maintenance operation, some smoke detectors P/N PMC1102-02 failed an acceptance test, due to a significant degraded optical sensitivity. Investigation results concluded that light-emitting diodes (LED) were abnormally degraded, affecting specific batches where changes occurred in the LED manufacturer production process. Further investigation has determined that the affected LED have been installed on smoke detectors manufactured between November 2010 and January 2013, and on certain repaired units.

    This condition, if not corrected, will generate an abnormal ageing of the smoke detector, leading to a decrease of the light intensity capability, possibly resulting in failure to detect smoke and consequent risk of an on-board uncontrolled fire.

    You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0099.

    Comments

    We gave the public the opportunity to participate in developing this AD. We considered the comments received.

    Comment on Certifying Authority

    The European Aviation Safety Agency (EASA) commented that the affected smoke detectors were approved by EASA rather than by France.

    We agree. These smoke detectors were approved by EASA. We did not change this AD because this AD does not reference the certifying authority for these smoke detectors. The section commented on by EASA exists only in the “Determination and Requirements of This Proposed AD” section of the NPRM. We did not change this AD.

    Request To Revise Applicability

    Delta Air Lines (Delta) requested that we revise the Applicability section of this AD to remove the reference to the date range when certain affected smoke detectors were produced. Delta indicated that the NPRM may be interpreted as implying that there are more affected smoke detector serial numbers than those identified in paragraph 1/D/ of Siemens Service Information Letter (SIL) PMC-26-002, Revision No. 1, dated January 2016, and of SIL PMC-26-003, Revision No. 2, dated February, 2016. Delta commented that removing the date range from the Applicability section of this AD would clarify applicability for operators.

    We agree. We find that providing the part numbers (P/Ns) and serial numbers (S/Ns) for the affected smoke detectors sufficiently identifies all affected detectors. We revised this AD by removing the reference to the production date range from the Applicability section of this AD.

    Request To Revise Compliance Schedule

    Delta requested that we revise paragraph (f)(2) in the compliance section of this AD to indicate that repaired units identified in Figure (1) to paragraph (c) of this AD should be replaced within 5 months after the effective date of this AD. Delta commented that the NPRM does not specify when these affected detectors are to be replaced.

    We agree. We revised the compliance section of this AD to specify that smoke detectors identified in paragraph (c)(2) of this AD must be replaced within 5 months after the effective date of this AD.

    Support for This AD

    The Air Line Pilots Association, International, commented that it supports the intent of this AD to correct the unsafe condition on the affected products.

    Conclusion

    We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    Siemens has issued SIL No. PMC-26-002, Revision No. 1, dated January 2016 and SIL No. PMC-26-003, Revision No. 2, dated February 2016. SIL No. PMC 26-002 provides a list of S/Ns for affected smoke detectors, P/Ns PMC1102-02, PMC3100-00, and GMC1102-02, known to be installed on Airbus A330 passenger, A330 freighter, and A380 airplanes. SIL No. PMC 26-003 provides a list of S/Ns for affected smoke detectors, P/N PMC1102, known to be installed on Boeing B737-400 airplanes that have been converted via supplemental type certificate from a passenger to a freighter airplane. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects an unknown number of smoke detectors installed on, but not limited to, various aircraft of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Inspection 0.2 work-hours × $85 per hour = $17 $0 $17 Replacement 0.8 work-hours × $85 per hours = $68 1,285 1,353
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

    Regulatory Findings

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

    For the reasons discussed above, I certify this AD:

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-19-05 Siemens S.A.S.: Amendment 39-19035; Docket No. FAA-2017-0099; Product Identifier 2017-NE-02-AD. (a) Effective Date

    This AD becomes effective October 31, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to Siemens S.A.S. smoke detectors, part numbers (P/Ns) PMC1102-02, PMC3100-00, and GMC1102-02, with serial numbers (S/Ns) listed in paragraph 1/D/ of Siemens Service Information Letter (SIL) No. PMC-26-002, Revision No. 1, dated January 2016; or paragraph 1/D/ of Siemens SIL No. PMC-26-003, Revision No. 2, dated February 2016.

    (2) This AD also applies to those smoke detectors with P/Ns and S/Ns listed in Figure 1 to paragraph (c) of this AD; installed on, but not limited to, any airplane, certificated in any category, listed in paragraphs (c)(2)(i) or (ii) of this AD.

    Figure 1 to Paragraph (c) of This AD—P/N and S/Ns of Repaired Smoke Detectors P/N S/N PMC1102-02 2129, 2281, 2335, 2343, 2356, 2399, 2411, 2428, 2588, 2731, 2851, 2888, 3658, 3696, 3710, 3729, 3731, 5032, 5039, 5040, 5107, 5216, 5233, 50069, 50075, 50087, 50122, 50204, 50250, 50264, 50268, 50270, 50272, 50366 and 50386. PMC3100-00 201, 208, 213, 227, 260, 268, 312, 528, 588, 592, 606, 652, 655, 660, 667, 50037, 50046, 50058, 50060, 50062, 50067, 50070, 50072 and 50090.

    (i) in production on Airbus A330, A330 freighter, and A380 airplanes;

    (ii) in service by supplemental type certificate modification on:

    (A) Airbus A319 and A320, and Bombardier CL-600-2B19 (Challenger 850), Boeing (formerly McDonnell Douglas) DC-9 series 80 airplanes; and

    (B) Boeing 737-400 (BDSF), 767, and 747-8 airplanes.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 2611, Smoke Detection.

    (e) Reason

    This AD was prompted by a report that the affected smoke detectors failed an acceptance test. We are issuing this AD to prevent failure of the smoke detector, on-board uncontrolled fire, and damage to the airplane.

    (f) Compliance

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

    (1) Within 30 days after the effective date of this AD, inspect each Siemens smoke detector, or review your maintenance records, to determine if an affected detector is installed.

    (2) For smoke detectors identified in paragraph (c)(1) of this AD, replace the detectors within the compliance times specified in Figures 2, 3, and 4 to paragraph (f) of this AD.

    Figure 2 to Paragraph (f) of This AD—P/N PMC1102-02 [Cargo compartments] Manufacturing date
  • (month/year)
  • Compliance time
  • (after the effective date of this AD)
  • 122010 to 112011 inclusive Within 5 months. 122011 to 012013 inclusive Within 11 months.
    Figure 3 to Paragraph (f) of This AD—P/N PMC3100-00 Detectors [Cargo compartments] Manufacturing date
  • (month/year)
  • Compliance time
  • (after the effective date of this AD)
  • 032011 to 012012 inclusive Within 5 months. 022012 to 012013 inclusive Within 11 months.
    Figure 4 to Paragraph (f) of This AD—P/N GMC1102-02 [Passenger cabin or any other location] Manufacturing date
  • (month/year)
  • Compliance time
  • (after the effective date of this AD)
  • 112010 to 022012 inclusive Within 24 months. 032012 to 122012 inclusive Within 36 months.

    (3) For smoke detectors identified in paragraph (c)(2) of this AD, replace the detectors within 5 months after the effective date of this AD.

    (g) Installation Prohibition

    After the effective date of this AD, do not install on any airplane a smoke detector:

    (1) With a manufacturing date and P/N listed in Figure 2 or 3 to paragraph (f) of this AD;

    (2) listed in Figure 4 to paragraph (f) of this AD unless the detector is marked `SIL PMC-26-002'.

    (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, FAA, Boston ACO Branch, Compliance and Airworthiness Division, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the Boston ACO Branch, send it to the attention of the person identified in paragraph (i)(1) of this AD.

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (i) Related Information

    (1) For more information about this AD, contact Erin Hulverson, Aerospace Engineer, FAA, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7655; fax: 781-238-7199; email: [email protected]

    (2) Refer to MCAI European Aviation Safety Agency AD 2016-0024, dated January 26, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2017-0099.

    (j) Material Incorporated by Reference

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

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

    (i) Siemens Service Information Letter (SIL) No. PMC-26-002, Revision No. 1, dated January 2016.

    (ii) Siemens SIL No. PMC-26-003, Revision No. 2, dated February 2016.

    (3) For Siemens service information identified in this AD, contact Siemens, Aviation Customer Support, 697 Rue Fourny, 78530 Buc, France; phone: (33) 1 3084 6650; fax: (33) 1 3956 1364.

    (4) You may view this service information at FAA, Engine and Propeller Standards Branch, Policy and Innovation Division, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

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

    Issued in Burlington, Massachusetts, on September 20, 2017. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service. [FR Doc. 2017-20425 Filed: 9-25-2017; 8:45 am; Publication Date: 9-26-2017] Editorial Note:

    Rule document 2017-20425 was originally published on pages 44717 through 44720 in the issue of Tuesday, September 26, 2017. In that publication, on page 44719, in Figure 1, a number was omitted from the first entry under column “P/N”. Also in that publication, on page 44720, in Figure 3, a number was omitted from the table heading. The corrected document is published here in its entirety.

    [FR Doc. R1-2017-20425 Filed 9-29-17; 8:45 am] BILLING CODE 1301-00-D
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-0398; Airspace Docket No. 17-ANE-2] Amendment of Class E Airspace; Windsor Locks, CT AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace at Windsor Locks, CT, by removing the Notice to Airmen (NOTAM) part-time status at Bradley International Airport under Class E airspace designated as an extension to a Class C surface area. This change enhances the safety and management of instrument flight rules (IFR) operations at Bradley International Airport under these Class E airspace designations. This action also updates the geographic coordinates of the airport.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Bradley International Airport, Windsor Locks, CT, to support IFR operations under standard instrument approach procedures at the airport.

    History

    The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 27449, June 15, 2017) Docket No. FAA-2017-0398 to amend Class E surface area airspace, by removing the NOTAM part-time status of the Class E airspace designated as an extension to a Class C surface area. This change enhances the safety and management of IFR operations at the airport. This action also updates the geographic coordinates of the airport for Class E airspace designated as an extension to a Class C surface area, and for Class E airspace extending upward from 700 feet or more above the surface within a 10.9-mile radius of Bradley International Airport, to coincide with the FAAs aeronautical database.

    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 6003, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, 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.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace designated as an extension to a Class C surface area, and Class E airspace extending upward from 700 feet or more above the surface at Bradley International Airport, Windsor Locks, CT. The NOTAM part-time status is removed from the Class E airspace area designated as an extension to a Class C surface area.

    Class E airspace designations are published in Paragraphs 6003 and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, 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.

    Regulatory Notices and Analyses

    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. Therefore, this regulation: (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.

    Environmental Review

    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.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 6003 Class E Airspace Designated as an Extension to a Class C Surface Area. ANE CT E3 Windsor Locks, CT [Amended] Bradley International Airport, CT (Lat. 41°56′21″ N., long 72°41′00″ W.)

    That airspace extending upward from the surface within 3.2 miles each side of the 224 bearing from Bradley International Airport, extending from the 5-mile radius to 9.6 miles southwest of the Bradley International Airport.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANE CT E5 Windsor Locks, CT [Amended] Bradley International Airport, CT (Lat. 41°56′21″ N., long. 72°41′00″ W.)

    That airspace extending upward from 700 feet above the surface within a 10.9-mile radius of Bradley International Airport.

    Issued in College Park, Georgia, on September 21, 2017. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2017-20848 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0289; Airspace Docket No. 17-AEA-4] Amendment of Class E Airspace; Wellsboro, PA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace extending upward from 700 feet or more above the surface at Wellsboro, PA, as the airspace surrounding Wellsboro Johnston Airport was inadvertently removed from the airspace description. This action enhances the safety and management of instrument flight rules (IFR) operations at the airport.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on-line at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (800) 647-8927, or (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, GA 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    History

    The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 25989, June 6, 2017) Docket No. FAA-2017-0289 proposing to add Wellsboro Johnston Airport, Wellsboro, PA, back into the airspace designation for Wellsboro, PA, in Class E airspace extending upward from 700 feet above the surface. The airspace was inadvertently removed from the Order. 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 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within an 8.2-mile radius of Wellsboro Johnston Airport, Wellsboro, PA, as this airspace was inadvertently removed from the airspace description in FAA Order 7499.11B. These changes are necessary for continued safety and management of IFR operations at the airport.

    Regulatory Notices and Analyses

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

    Environmental Review

    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.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AEA PA E5 Wellsboro, PA [Amended] Nessmuk Helipad Point in Space Coordinates (Lat. 41°44′11″ N., long. 77°18′11″ W.) Wellsboro Johnston Airport, PA (Lat. 41°43′41″ N., long. 77°23′44″ W.)

    That airspace extending upward from 700 feet above the surface within a 6-mile radius of the Point in Space for the SIAP serving the Nessmuk Helipad, and within an 8.2-mile radius of Wellsboro Johnston Airport.

    Issued in College Park, Georgia, on September 22, 2017. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2017-20957 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-9453; Airspace Docket No. 16-AEA-12] Amendment of Class E Airspace; Hot Springs, VA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace extending upward from 700 feet or more above the surface at Hot Springs, VA, by adding controlled airspace for Bath Community Hospital Heliport to the Ingalls Field Airport airspace designation. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the heliport. This action also updates the geographic coordinates of Ingalls Field Airport in the associated Class E airspace. This action enhances the safety and airspace management of instrument flight rules (IFR) operations at the airport.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on-line at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, GA 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace in the Hot Springs, VA area, support of IFR operations at Bath Community Hospital Heliport.

    History

    The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 26409, June 7, 2017) Docket No. FAA-2016-9453 proposing to amend Class E airspace extending upward from 700 feet above the surface at Hot Springs, VA, by adding controlled airspace for Bath Community Hospital Heliport to the Ingalls Field Airport airspace designation. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Subsequent to publication, the FAA found that the updated geographic coordinates of Ingalls Field Airport were incorrect in the NPRM. This action corrects that error.

    Class E airspace designations are published in Paragraph 6002, and 6005, respectively of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, 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.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface by adding controlled airspace within a 7-mile radius of Bath Community Hospital Heliport to the existing designation of Class E airspace at Ingalls Field Airport, Hot Springs, VA. This action accommodates new area navigation (RNAV) (GPS) standard instrument approach procedures at the heliport. Airspace reconfiguration is necessary for the safety and management of IFR operations at the heliport.

    Also, the geographic coordinates for Ingalls Field Airport are corrected to read (Lat. 37°57′05″ N., long. 79°50′02″ W.), from (Lat. 37°57′09″ N., long. 79°50′03″ W.)

    Regulatory Notices and Analyses

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

    Environmental Review

    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.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 6002 Class E Surface Area Airspace. AEA VA E2 Hot Springs, VA [Amended] Ingalls Field Airport, VA (Lat. 37°57′05″ N., long. 79°50′02″ W.)

    Within a 4-mile radius of Ingalls Field Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be published in the Chart Supplement.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AEA VA E5 Hot Springs, VA [Amended] Ingalls Field Airport, VA (Lat. 37°57′05″ N., long. 79°50′02″ W.) Bath Community Hospital Heliport, VA (Lat. 37°59′36″ N., long. 79°49′55″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Ingalls Field Airport, and within a 7-mile radius of Bath Community Hospital Heliport.

    Issued in College Park, Georgia, on September 21, 2017. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2017-20841 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0277; Airspace Docket No. 17-ASO-9] Establishment of Class E Airspace; Columbia, MS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E airspace extending upward from 700 feet above the surface at Marion General Hospital Heliport, Columbia, MS, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving Marion General Hospital Heliport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the heliport.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at Marion General Hospital Heliport, Columbia, MS, to support IFR operations under SIAPs at the heliport.

    History

    The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 25988, June 6, 2017) Docket No. FAA-2017-0277 to establish Class E airspace extending upward from 700 feet above the surface at Marion General Hospital Heliport, Columbia, MS, due to the new RNAV (GPS) SIAPs developed for IFR operations at the heliport. 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 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Marion General Hospital Heliport, Columbia, MS. This action provides the controlled airspace required to support the new RNAV (GPS) SIAPs for IFR operations at the heliport.

    Regulatory Notices and Analyses

    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. Therefore, this regulation: (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.

    Environmental Review

    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.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

    In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO MS E5 Marion General, Columbia, MS [New] Marion General Hospital Heliport, MS (Lat. 31°15′17″ N., long. 89°48′19″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Marion General Hospital Heliport.

    Issued in College Park, Georgia, on September 22, 2017. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2017-20956 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0230; Airspace Docket No. 17-ASO-8] Amendment of Class D and Class E Airspace; New Bern, NC AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class D and Class E airspace at Coastal Carolina Regional Airport (formally Craven County Regional Airport), New Bern, NC. The Notice to Airmen (NOTAM) part-time status is removed from Class E airspace designated as an extension. Also, under Class E surface airspace, the segment using the New Bern VHF omnidirectional range/distance measuring equipment (VOR/DME) navigation aid used to describe the northeast and southwest extensions to the airport is removed. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport, updates the airport's name, and makes an editorial change replacing Airport/Facility Directory with the term Chart Supplement in the legal descriptions of associated Class D and E airspace. Also, the docket number for this rule is corrected to FAA-2017-0230.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D and Class E airspace at Coastal Carolina Regional Airport, New Bern, NC, to support IFR operations under standard instrument approach procedures at the airport.

    History

    The FAA published a notice of proposed rulemaking (NPRM in the Federal Register (82 FR 24265, May 26, 2017) Docket No. FAA-2017-0230 to amend Class D airspace, Class E surface area airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet or more above the surface at Coastal Carolina Regional Airport (formerly Craven County Regional Airport), New Bern, NC.

    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 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class D airspace, Class E surface area airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet or more above the surface at Coastal Carolina Regional Airport (formerly Craven County Regional Airport), New Bern, NC. The NOTAM part-time status is removed from the Class E airspace area designated as an extension to a Class D surface area.

    Class E airspace extending upward from 700 feet above the surface is amended to within a 7-mile radius (from a 6.5-mile radius) of the airport. The New Bern VOR/DME is removed from the description under Class E surface airspace, as it is no longer needed to describe the boundaries of the airport.

    For the associated Class D and E airspace areas, the geographic coordinates of the airport are adjusted to coincide with the FAAs aeronautical database, and the airport name is changed from Craven County Regional Airport to Coastal Carolina Regional Airport.

    Also, this action replaces the outdated term Airport/Facility Directory with the term Chart Supplement in the associated Class D and E airspace legal descriptions.

    Subsequent to publication, the FAA discovered the docket number in the NPRM was incorrectly listed as FAA-2016-0230. This action corrects the docket number to FAA-2017-0230.

    Class D and Class E airspace designations are published in Paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    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. Therefore, this regulation: (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.

    Environmental Review

    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.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. ASO NC D New Bern, NC [Amended] Coastal Carolina Regional Airport, NC (Lat. 35°04′22″ N., long. 77°02′35″ W.)

    That airspace extending upward from the surface to and including 2,500 feet MSL within a 4-mile radius of Coastal Carolina Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Surface Area Airspace. ASO NC E2 New Bern, NC [Amended] Coastal Carolina Regional Airport, NC (Lat. 35°04′22″ N., long. 77°02′35″ W.)

    Within a 4-mile radius of Coastal Carolina Regional Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004 Class E Airspace Designated as an Extension to a Class D Surface Area. ASO NC E4 New Bern, NC [Amended] Coastal Carolina Regional Airport, NC (Lat. 35°04′22″ N., long. 77°02′35″ W.) New Bern VOR/DME (Lat. 35°04′23″ N., long. 77°02′42″ W.)

    That airspace extending upward from the surface within 2.4 miles each side of the New Bern VOR/DME 038° and 210° radials, extending from the 4-mile radius to 7 miles northeast and southwest of the VOR/DME.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO AL E5 New Bern, NC [Amended] Coastal Carolina Regional Airport, NC (Lat. 35°04′22″ N., long. 77°02′35″ W.)

    That airspace extending upward from 700 feet above the surface within a 7-mile radius of Coastal Carolina Regional Airport.

    Issued in College Park, Georgia, on September 21, 2017. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2017-20845 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0177; Airspace Docket No. 17-ACE-4] Amendment of Class E Airspace; Wellington, KS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies Class E airspace extending upward from 700 feet above the surface at Wellington Municipal Airport, Wellington, KS. Airspace reconfiguration is necessary due to the decommissioning of the Wellington non-directional radio beacon (NDB), and cancellation of the NDB approach, and enhances the safety and management of standard instrument approach procedures for instrument flight rules (IFR) operations at the airport.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html. FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Wellington Municipal Airport, Wellington, KS, to support standard instrument approach procedures for IFR operations at the airport.

    History

    On April 24, 2017, the FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 18875) Docket No. FAA-2017-0177, to amend Class E airspace extending upward from 700 feet above the surface at Wellington Municipal Airport, Wellington, KS. 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 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, 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.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface at Wellington Municipal Airport, Wellington, KS, within a 6.4-mile radius (reduced from 6.8 miles) of the airport.

    Airspace reconfiguration is necessary due to the decommissioning and cancellation of the Wellington NDB and NDB approach, and enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.

    Regulatory Notices and Analyses

    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.

    Environmental Review

    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 5-6.5.a. 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.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ACE KS E5 Wellington, KS [Amended] Wellington Municipal Airport, KS (Lat. 37°19′25″ N., long. 97°23′18″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Wellington Municipal Airport.

    Issued in Fort Worth, Texas, on September 19, 2017. Walter Tweedy, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2017-20850 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 Docket No. FAA-2017-0646; Airspace Docket No. 17-AGL-17 Establishment of Class E Airspace; Ellendale, ND AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E airspace at Ellendale, ND. Controlled airspace is necessary to accommodate new special instrument approach procedures developed at Ellendale Municipal Airport, for the safety and management of instrument flight rules (IFR) operations at the airport.

    DATES:

    Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html. FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at Ellendale Municipal Airport, Ellendale, ND, to support mew special IFR procedures at the airport.

    History

    On August 1, 2017, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace at the Ellendale Municipal Airport, Ellendale, ND (82 FR 35714) FAA-2017-0646. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received in support of the proposal.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, 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.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Ellendale Municipal Airport, Ellendale, ND, to accommodate new special instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

    Regulatory Notices and Analyses

    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 will only affect 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.

    Environmental Review

    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 exists that warrant preparation of an environmental assessment.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL ND E5  Ellendale, ND [New] Ellendale Municipal Airport, ND (Lat. 46°00′59″ N., long. 098°30′56″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Ellendale Municipal Airport.

    Issued in Fort Worth, TX, on September 20, 2017. Walter Tweedy, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2017-20843 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2016-7055; Airspace Docket No. 15-AWP-11] Establishment of Restricted Area R-2306F; Yuma Proving Ground, AZ Correction

    In Rule document 2017-20590, appearing on pages 44721-44723 in the issue of Tuesday, September 26, 2017, make the following correction:

    § 73.23 [Corrected]

    1. On page 44723, column one, line 7, the longitude coordinate “114°26′3″ W.” should read “114°26′33″ W.”

    2. On page 44723, column one, line 11, the longitude coordinate “114°26′9″ W.” should read “114°26′29″ W.”

    [FR Doc. C1-2017-20590 Filed 9-29-17; 8:45 am] BILLING CODE 1301-00-D
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2016-9591; Airspace Docket No. 16-ASW-21] Establishment of Temporary Restricted Area R-5602; Fort Sill, OK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Temporary final rule.

    SUMMARY:

    This action establishes temporary restricted area R-5602, over the Fort Sill, OK, R-5601 restricted area complex, to support the U.S. Army Maneuver & Fires Integration Experiment (MFIX) 2018 scheduled for December 2017. MFIX 2018 is planned to exercise hazardous laser operations conducting counter unmanned aircraft systems (UAS) activities. The temporary restricted area will be in effect from December 4 through December 15, 2017.

    DATES:

    Effective date 0901 UTC, December 4, 2017, through December 15, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

    This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes temporary restricted airspace at Fort Sill, OK, enhancing safety and accommodating essential military training during the U.S. Army's MFIX 2018 exercise being held December 4 through 15, 2017.

    History

    On February 23, 2017, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (82 FR 11417), Docket No. FAA-2016-9591, to establish a temporary restricted area designated to support hazardous training activities conducted during MFIX 2018 within the Fort Sill, OK, special use airspace (SUA) complex. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

    The Rule

    The FAA is amending 14 CFR part 73 to establish temporary restricted area R-5602 in support of MFIX 2018 during the period of December 4 through 15, 2017, to contain hazardous laser activities demonstrating counter UAS capabilities. To effectively segregate nonparticipant air traffic from the hazardous activities associated with MFIX 2018 at Fort Sill, OK, the R-5602 lateral boundaries overlie the R-5601A, R-5601B, and a portion of R-5601F restricted areas and extend approximately 8 nautical miles (NM) east beyond the R-5601A and R-5601F eastern boundaries. R-5602 extends upward from 40,000 feet mean sea level (MSL) to 60,000 feet MSL, is activated daily by a Notice to Airmen (NOTAM), and is in effect only during the period of December 4 through December 15, 2017. This rule adds “daily” to the “Time of designation” for clarity.

    Since R-5602 is a temporary area, it will not be depicted on the Dallas-Ft. Worth Sectional Aeronautical Chart or the IFR Enroute High Altitude Chart, H-6. However, a notice and graphic depiction will be published on the FAA's SUA Web site at http://www.faa.gov/sua and in the Notices to Airmen Publication (NTAP) available online at http://www.faa.gov/air_traffic/publications/notices/.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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 will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    The FAA has determined that this action of establishing a temporary restricted area R-5602 which partially overlays portions of the R-5601 restricted area complex at Fort Sill, OK, qualifies for FAA adoption in accordance with FAA Order 1050.1F, paragraphs 8-2 and 9-2, Adoption of Other Agencies' National Environmental Policy Act Documents, and Written Re-evaluations, and 7400.2L, paragraph 32-2-3. The purpose of temporarily creating and utilizing the temporary Restricted Area (RA) is to safely segregate private and commercial aircraft from above-the-horizon hazardous laser activities while supporting the U.S. Army MFIX 2018 planned for November 27 through December 15, 2017 (the proposed temporary RA R-5602 would be active from December 4 through 15, 2017). The FAA, after conducting an independent review and evaluation of the United States Army's August 2017 Final Supplemental Environmental Assessment for the Temporary Creation and Utilization of Restricted Area R-5602 at Fort Sill, Oklahoma, has determined that the Army's Supplemental EA and its supporting documentation adequately assesses and discloses the environmental impacts of the proposed action, including evaluation of the establishment of airspace for temporary restricted airspace area R-5602. Based on the evaluation for potential environmental impact in the above-mentioned EA, the FAA, as the Cooperating Agency, concluded that adoption of the EA for the Temporary Creation and Utilization of Restricted Area R-5602 is authorized in accordance with 40 CFR 1506.3, Adoption. Accordingly, FAA adopts the Army's Supplemental EA and takes full responsibility for the scope and content that address the FAA's airspace establishment action.

    List of Subjects in 14 CFR Part 73

    Airspace, Prohibited areas, Restricted areas.

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

    PART 73—SPECIAL USE AIRSPACE 1. The authority citation for part 73 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 73.56 Oklahoma (Amended)
    2. § 73.56 is amended as follows: R-5602 Fort Sill, OK [Temporary]

    Boundaries. Beginning at lat. 34°49′30″ N., long. 98°08′43″ W.; to lat. 34°36′36″ N., long. 98°08′43″ W.; to lat. 34°36′36″ N., long. 98°17′01″ W.; to lat. 34°38′15″ N., long. 98°17′01″ W.; to lat. 34°38′15″ N., long. 98°37′57″ W.; to lat. 34°40′54″ N., long. 98°37′56″ W.; to lat. 34°42′07″ N., long. 98°37′20″ W.; to lat. 34°43′21″ N., long. 98°36′02″ W.; to lat. 34°43′30″ N., long. 98°35′40″ W.; to lat. 34°45′03″ N., long. 98°29′46″ W.; to lat. 34°46′15″ N., long. 98°25′01″ W.; to lat. 34°47′00″ N., long. 98°17′46″ W.; to lat. 34°46′45″ N., long. 98°17′01″ W.; to lat. 34°49′30″ N., long. 98°17′01″ W.; to the point of beginning.

    Designated altitudes. 40,000 feet MSL to 60,000 feet MSL.

    Time of designation. December 4-15, 2017, daily, by NOTAM.

    Controlling agency. FAA, Fort Worth ARTCC.

    Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence, Fort Sill, OK.

    Issued in Washington, DC, on September 22, 2017. Rodger A. Dean, Jr., Manager, Airspace Policy Group.
    [FR Doc. 2017-20954 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 227 and 230 [Release No. 33-10416] Regulation Crowdfunding and Regulation A Relief and Assistance for Victims of Hurricane Harvey, Hurricane Irma, and Hurricane Maria AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Interim final temporary rule.

    SUMMARY:

    We are adopting interim final temporary rules for issuers subject to reporting obligations pursuant to Regulation Crowdfunding and Regulation A in order to address the needs of companies directly or indirectly affected by Hurricane Harvey, Hurricane Irma, or Hurricane Maria. The temporary rules extend the filing deadlines for specified reports and forms due pursuant to Regulation Crowdfunding and Regulation A for certain issuers.

    DATES:

    These rules are effective from September 28, 2017, through November 22, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Zachary O. Fallon, Special Counsel, or Amy Reischauer, Special Counsel, Office of Small Business Policy, Division of Corporation Finance, at (202) 551-3460, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-3628.

    SUPPLEMENTARY INFORMATION:

    We are adopting amendments to Rule 202 1 of Regulation Crowdfunding 2 under the Securities Act of 1933 (the “Securities Act”) 3 and Rule 257 4 of Regulation A 5 under the Securities Act as interim final temporary rules.

    1 17 CFR 227.202.

    2 17 CFR 227 et seq.

    3 15 U.S.C. 77a et seq.

    4 17 CFR 230.257.

    5 17 CFR 230.251 through 230.263.

    I. Introduction

    In late August 2017, Hurricane Harvey caused catastrophic damage along the Texas and Louisiana coast, in early September 2017, Hurricane Irma caused catastrophic damage to the U.S. Virgin Islands, Puerto Rico and the Florida coast, and, in mid-September 2017, Hurricane Maria caused additional catastrophic damage to the U.S. Virgin Islands and Puerto Rico. The storms and subsequent flooding have displaced individuals and businesses and disrupted communications and transportation across the affected regions. We are adopting these interim final temporary rules to address the needs of companies directly or indirectly affected by Hurricane Harvey, Hurricane Irma, or Hurricane Maria or their respective aftermaths that are subject to reporting obligations pursuant to Regulation Crowdfunding or Regulation A.

    Section 28 of the Securities Act provides that the Commission may, by rule or regulation, “conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of this title or of any rule or regulation issued under this title, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.” 6

    6 15 U.S.C. 77z-3.

    II. Temporary Relief From Filing Requirements for Issurers Subject to the Reporting Obligations of Regulation Crowfunding or Regulation A

    The lack of communications, transportation, electricity, facilities, and available staff and professional advisors as a result of Hurricane Harvey, Hurricane Irma, and Hurricane Maria could hamper the efforts of companies with reporting obligations to meet their filing deadlines pursuant to Regulation Crowdfunding or Regulation A. At the same time, investors have an interest in the timely availability of required information about these companies. While the Commission believes that the temporary relief from filing requirements provided by the amendments to Rule 202 of Regulation Crowdfunding 7 and Rule 257 of Regulation A 8 is both necessary in the public interest and consistent with the protection of investors, we remind companies that are the subject of the relief provided in these interim final temporary rules to continue to evaluate their obligations to make materially accurate and complete disclosures in accordance with the anti-fraud provisions of the federal securities laws.

    7See Rule 202(c) of Regulation Crowdfunding. 17 CFR 227.202(c).

    8See Rule 257(f) of Regulation A. 17 CFR 230.257(f).

    Accordingly, pursuant to Section 28 of the Securities Act, we are adopting interim final temporary rules providing that an issuer subject to the reporting requirements of either Regulation Crowdfunding or Regulation A is exempt from any requirement to file specified reports or forms with the Commission where the conditions below are satisfied:

    (a) The issuer is not able to meet a filing deadline due to Hurricane Harvey, Hurricane Irma, or Hurricane Maria or their respective aftermaths;

    (b)(i) For issuers affected by Hurricane Harvey, the issuer files with the Commission, on or before October 27, 2017, the report or form required to be filed pursuant to either Regulation Crowdfunding or Regulation A during the period from and including August 25, 2017 to and including October 26, 2017;

    (ii) For issuers affected by Hurricane Irma, the issuer files with the Commission, on or before November 8, 2017, the report or form required to be filed pursuant to either Regulation Crowdfunding or Regulation A during the period from and including September 6, 2017 to and including November 7, 2017; or

    (ii) For issuers affected by Hurricane Maria, the issuer files with the Commission, on or before November 22, 2017, the report or form required to be filed pursuant to either Regulation Crowdfunding or Regulation A during the period from and including September 20, 2017 to and including November 21, 2017; and

    (c) In any such report or form, the issuer discloses that it is relying on the interim final temporary rules and states the reasons why, in good faith, it could not file such report or form on a timely basis.

    For Regulation Crowdfunding, the relief includes annual reports on Form C-AR, progress updates on Form C-U, and termination of reporting on Form C-TR. For Regulation A, the relief includes post-qualification amendments required at least every 12 months after the qualification date to include updated financial statements, annual reports on Form 1-K, semi-annual reports on Form 1-SA, special financial reports on Forms 1-K or 1-SA, current reports on Form 1-U, and exit reports on Form 1-Z.

    III. Economic Analysis

    Regulation Crowdfunding and Regulation A permit offers and sales of securities without registration under the Securities Act, subject to certain limitations and conditions, including compliance with ongoing reporting requirements. Based on staff analysis, approximately 150 filers publicly filed Regulation A offering statements between June 19, 2015 (the effective date of the most recent Regulation A amendments 9 ) and August 31, 2017 that have been qualified as of September 15, 2017. Approximately 418 issuers initiated Regulation Crowdfunding offerings with Form C filings between May 16, 2016 and August 31, 2017, excluding issuers that have withdrawn offerings.10 Approximately 28 registered intermediaries, including registered funding portals and registered broker-dealers, have participated in Regulation Crowdfunding offerings with Form C filings between May 16, 2016 and August 31, 2017, which includes offerings that may have been subsequently terminated or failed to reach the target amount.

    9 SEC Rel. No. 33-9741 (Mar. 25, 2015) [80 FR 21806 (Apr. 20, 2015)].

    10 These figures overstate the number of issuers with obligations to file annual reports under Regulation Crowdfunding, because they do not exclude issuers that have failed to raise the target amount or have exited the reporting regime.

    We lack the data to estimate the number of investors in Regulation A or Regulation Crowdfunding offerings that could be affected if issuers rely on the relief provided by the interim final temporary rules, because information on the number of investors is generally not required to be disclosed in periodic or current reports required under Regulation A or in periodic reports or progress updates required under Regulation Crowdfunding.11

    11 Regulation A issuers that file Form 1-Z to suspend reporting are required to disclose the number of shareholders of record.

    We are mindful of the costs and benefits of the interim final temporary rules.12 We believe the interim final temporary rules will benefit issuers that have an obligation to file specified reports with the Commission pursuant to either Regulation Crowdfunding or Regulation A and have been adversely affected by Hurricane Harvey, Hurricane Irma, or Hurricane Maria or their respective aftermaths by permitting them to take additional time to meet their reporting obligations. We expect the relief provided by the interim final temporary rules will benefit issuers that, absent the relief, would not be able to avail themselves of the exemption from registration under Regulation Crowdfunding or Regulation A because the timely filing of required reports is a condition to the exemptions. In the absence of this relief, issuers could incur prohibitively high costs in an attempt to meet filing deadlines given the lack of communications, transportation, electricity, facilities, and available staff and professional advisors.

    12 Section 2(b) of the Securities Act [15 U.S.C. 77b(b)] requires the Commission, when engaging in rulemaking where it is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.

    The requirement for an issuer to disclose that it is relying on Rule 202(c) of Regulation Crowdfunding or Rule 257(f) of Regulation A and to state the reasons why, in good faith, it could not file a report or form on a timely basis may impose minimal additional costs on issuers availing themselves of this relief. However, we believe that these minimal costs are justified in light of the significant negative implications of not being able to rely on the exemption and the prohibitively high costs an issuer may incur in attempting to file in a timely manner.

    We also acknowledge that there may be costs imposed on investors, intermediaries, and other market participants due to delayed access to information about offerings conducted in reliance on Regulation A and Regulation Crowdfunding. Generally, reporting requirements strengthen investor protection and decrease the extent of information asymmetries between issuers and investors. Ongoing reporting provides investors with periodically updated information, allowing them to assess investment opportunities based on the information provided and their level of risk tolerance, resulting in better informed investment decisions and improved allocative efficiency. Given that the interim final temporary rules allow for delayed reporting for a limited time period and only under specified conditions, we do not believe such costs will be significant.

    The interim final temporary rules will not substantially affect competition or capital formation. We acknowledge the possibility that the interim final temporary rules may have a minor impact on efficiency. On the one hand, as noted above, the delay in reporting could marginally affect allocative efficiency to the extent that it allows information asymmetries between investors and issuers to persist for the length of time of the delay. On the other hand, we expect efficiency gains to the extent that the interim final temporary rules allow issuers to continue to rely on either of the exemptions from registration that would not be available if one of the required reports that is a condition to the exemptions was not filed in a timely manner, or to the extent the issuers are able to avoid paying a premium to service providers in an attempt to file in a timely manner by delaying reporting during the specified relief period.

    As an alternative to the relief specified in the interim final temporary rules, we could have considered a longer or shorter relief period. While a shorter period would have reduced the costs to investors of asymmetric information, it would also reduce the benefits of the interim final temporary rules to issuers. Similarly, a longer period would increase the costs to investors. We believe that the approximately nine-week delay in the interim final temporary rules is appropriate given the potential impact Hurricane Harvey, Hurricane Irma, or Hurricane Maria or their respective aftermaths could have on the efforts of companies to meet filing deadlines pursuant to Regulation Crowdfunding and Regulation A.

    IV. Procedural and Other Matters

    The Administrative Procedure Act (“APA”) generally requires an agency to publish notice of a rulemaking in the Federal Register and provide an opportunity for public comment. This requirement does not apply, however, if the agency “for good cause finds . . . that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.” 13 The APA also generally requires that an agency publish an adopted rule in the Federal Register at least 30 days before it becomes effective. This requirement does not apply, however, if the agency finds good cause for making the rule effective sooner.14

    13 5 U.S.C. 553(b)(3)(B).

    14 5 U.S.C. 553(d)(3).

    Given the temporary nature of the relief contemplated by the interim final temporary rules and the significant and immediate impacts of Hurricane Harvey, Hurricane Irma, and Hurricane Maria and their aftermaths on issuers in affected areas, as discussed above, the Commission finds that good cause exists to dispense with notice and comment as impracticable and unnecessary, and to act immediately to amend Rule 202 of Regulation Crowdfunding and Rule 257 of Regulation A.15 Further, the interim final temporary rules will not affect the burden or cost estimates associated with existing collections of information under Regulation Crowdfunding and Regulation A for purposes of the Paperwork Reduction Act of 1995.16

    15 This finding also satisfies the requirements of 5 U.S.C. 808(2), allowing the interim final temporary rules to become effective notwithstanding the requirement of 5 U.S.C. 801 (if a federal agency finds that notice and public comment are impractical, unnecessary or contrary to the public interest, a rule shall take effect at such time as the federal agency promulgating the rule determines). The interim final temporary rules also do not require analysis under the Regulatory Flexibility Act. See 5 U.S.C. 604(a) (requiring a final regulatory flexibility analysis only for rules required by the APA or other law to undergo notice and comment).

    16 44 U.S.C. 3501 et seq.

    V. Statutory Basis and Text of Amendments

    We are adopting amendments to Rule 202 of Regulation Crowdfunding and Rule 257 of Regulation A under the authority set forth in the Securities Act (15 U.S.C. 77a et seq.), particularly, Section 28 thereof.

    List of Subjects 17 CFR Part 227

    Crowdfunding, Funding portals, Intermediaries, Reporting and recordkeeping requirements, Securities.

    17 CFR Part 230

    Reporting and recordkeeping requirements, Securities.

    In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:

    PART 227—REGULATION CROWDFUNDING, GENERAL RULES AND REGULATIONS 1. The authority citation for part 227 is revised to read as follows: Authority:

    15 U.S.C. 77d, 77d-1, 77s, 77z-3, 78c, 78o, 78q, 78w, 78mm, and Pub. L. 112-106, secs. 301-305, 126 Stat. 306 (2012).

    2. Amend § 227.202 by adding paragraph (c) to read as follows:
    § 227.202 Ongoing reporting requirements.

    (c) Temporary relief from certain reporting requirements. (1) An issuer that is not able to meet a filing deadline for any report or form required to be filed by this section (Rule 202), Rule 203(a)(3) (§ 227.203(a)(3)), or Rule 203(b) (§ 227.203(b)), as applicable:

    (i) During the period from and including August 25, 2017 to and including October 26, 2017 due to Hurricane Harvey and its aftermath shall be deemed to have satisfied the filing deadline for such report or form if the issuer files such report or form with the Commission on or before October 27, 2017;

    (ii) During the period from and including September 6, 2017 to and including November 7, 2017 due to Hurricane Irma and its aftermath shall be deemed to have satisfied the filing deadline for such report or form if the issuer files such report or form with the Commission on or before November 8, 2017; or

    (ii) During the period from and including September 20, 2017 to and including November 21, 2017 due to Hurricane Maria and its aftermath shall be deemed to have satisfied the filing deadline for such report or form if the issuer files such report or form with the Commission on or before November 22, 2017.

    (2) In any report or form filed pursuant to paragraph (c)(1) of this section, the issuer must disclose that it is relying on this paragraph (c) (Rule 202(c) of Regulation Crowdfunding) and state the reasons why, in good faith, it could not file such report or form on a timely basis.

    PART 230—GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933 3. The authority citation for part 230 continues to read in part as follows: Authority:

    15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126 Stat. 313 (2012), unless otherwise noted.

    4. Amend § 230.257 by adding paragraph (f) to read as follows:
    § 230.257 Periodic and current reporting; exit report.

    (f) Temporary relief from ongoing reporting requirements. (1) An issuer that is not able to meet a filing deadline for any report or form required to be filed by Rule 252(f)(2)(i) (§ 230.252(f)(2)(i)) or this section (Rule 257), as applicable:

    (i) During the period from and including August 25, 2017 to and including October 26, 2017 due to Hurricane Harvey and its aftermath shall be deemed to have satisfied the filing deadline for such report or form if the issuer files such report or form with the Commission on or before October 27, 2017;

    (ii) During the period from and including September 6, 2017 to and including November 7, 2017 due to Hurricane Irma and its aftermath shall be deemed to have satisfied the filing deadline for such report or form if the issuer files such report or form with the Commission on or before November 8, 2017; or

    (ii) During the period from and including September 20, 2017 to and including November 21, 2017 due to Hurricane Maria and its aftermath shall be deemed to have satisfied the filing deadline for such report or form if the issuer files such report or form with the Commission on or before November 22, 2017.

    (2) In any report or form filed pursuant to paragraph (f)(1) of this section, the issuer must disclose that it is relying on this paragraph (f) (Rule 257(f) of Regulation A) and state the reasons why, in good faith, it could not file such report or form on a timely basis.

    By the Commission.

    Dated: September 27, 2017. Brent J. Fields, Secretary.
    [FR Doc. 2017-21094 Filed 9-28-17; 4:15 pm] BILLING CODE 8011-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 876 [Docket No. FDA-2017-N-5153] Medical Devices; Gastroenterology-Urology Devices; Classification of the High Intensity Ultrasound System for Prostate Tissue Ablation AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is classifying the high intensity ultrasound system for prostate tissue ablation into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the high intensity ultrasound system for prostate tissue ablation's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

    DATES:

    This order is effective October 2, 2017. The classification was applicable on October 9, 2015.

    FOR FURTHER INFORMATION CONTACT:

    John Baxley, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G210, Silver Spring, MD 20993-0002, 301-796-6549, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Upon request, FDA has classified the high intensity ultrasound system for prostate tissue ablation as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

    The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act).

    FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act to a predicate device that does not require premarket approval (see 21 U.S.C. 360c(i)). We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act and part 807 (21 U.S.C. 360(k) and 21 CFR part 807, respectively).

    FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

    Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

    Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

    Under either procedure for De Novo classification, FDA shall classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically within class III, the De Novo classification is considered to be the initial classification of the device.

    We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.

    II. De Novo Classification

    On March 23, 2015, SonaCare Medical, LLC submitted a request for De Novo classification of the Sonablate® 450. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act. We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on October 9, 2015, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 876.4340. We have named the generic type of device high intensity ultrasound system for prostate tissue ablation, and it is identified as a prescription device that transmits high intensity therapeutic ultrasound energy into the prostate to thermally ablate a defined, targeted volume of tissue, performed under imaging guidance. This classification does not include devices that are intended for the treatment of any specific prostate disease and does not include devices that are intended to ablate non-prostatic tissues/organs.

    FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

    Table 1—High Intensity Ultrasound System for Prostate Tissue Ablation Risks and Mitigation Measures Identified risks Mitigation measures Thermal injury from high intensity ultrasound exposure to non-target tissue:
  •  • Erectile dysfunction
  •  • Urinary incontinence
  •  • Rectal fistula
  •  • Osteomyelitis pubis
  • Non-clinical performance testing; Software verification, validation, and hazard analysis; In vivo testing; Clinical testing; Labeling; and Physician training.
    Thermal injury from high intensity ultrasound exposure to target tissue:
  •  • Urethral stricture
  •  • Bladder neck contracture
  •  • Urinary retention
  •  • Tissue debris/obstruction
  •  • Voiding dysfunction
  •  • Dysuria
  •  • Hematuria
  •  • Ejaculation disorder
  • Clinical testing, Labeling, and Physician training.
    Mechanical injury from unintentional movement of ultrasound components:
  •  • Patient rectal injury
  •  • Operator hand injury
  • Software verification, validation, and hazard analysis; Clinical testing; Labeling; and Physician training.
    Infection Sterilization validation, Reprocessing validation, Shelf life validation, and Labeling. Electrical shock/electromagnetic interference Electrical safety testing, Electromagnetic compatibility testing, and Labeling. Adverse tissue reaction Biocompatibility testing.

    FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. In order for a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k).

    At the time of classification, high intensity ultrasound systems for prostate tissue ablation are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met.

    III. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    IV. Paperwork Reduction Act of 1995

    This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 876

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 876 is amended as follows:

    PART 876—GASTROENTEROLOGY-UROLOGY DEVICES 1. The authority citation for part 876 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Add § 876.4340 to subpart E to read as follows:
    § 876.4340 High intensity ultrasound system for prostate tissue ablation.

    (a) Identification. A high intensity ultrasound system for prostate tissue ablation is a prescription device that transmits high intensity therapeutic ultrasound energy into the prostate to thermally ablate a defined, targeted volume of tissue, performed under imaging guidance. This classification does not include devices that are intended for the treatment of any specific prostate disease and does not include devices that are intended to ablate non-prostatic tissues/organs.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Non-clinical performance data must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:

    (i) Characterization of acoustic pressure and power output at clinically relevant levels;

    (ii) Measurement of targeting accuracy and reproducibility of high intensity ultrasound output;

    (iii) Ultrasound-induced heating verification testing at target and non-target tissues;

    (iv) Electrical safety testing; and

    (v) Electromagnetic compatibility testing.

    (2) Software verification, validation, and hazard analysis must be performed.

    (3) The elements of the device that may contact the patient's mucosal tissue must be demonstrated to be biocompatible.

    (4) Performance data must demonstrate the sterility of the device components that contact the patient's mucosal tissue.

    (5) Performance data must support shelf life by demonstrating continued sterility of the device or the sterile components, package integrity, and device functionality over the identified shelf life.

    (6) Performance data must support the instructions for reprocessing all reusable components.

    (7) In vivo testing must demonstrate that the device thermally ablates targeted tissue in a controlled manner without thermal injury to adjacent, non-target tissues.

    (8) Clinical testing must document the adverse event profile, provide evidence of prostatic ablation, and demonstrate that the device performs as intended under anticipated conditions of use.

    (9) Training must be provided so that upon completion of the training program, the physician can:

    (i) Use all safety features of the device;

    (ii) Accurately target the high intensity ultrasound energy within the desired region of the prostate; and

    (iii) Perform the ablation procedure in a manner that minimizes damage to non-target tissues.

    (10) Labeling must include:

    (i) A section that summarizes the clinical testing results, including the adverse event profile and evidence of prostate ablation achieved; and

    (ii) An expiration date or shelf life for single use components.

    Dated: September 25, 2017. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2017-21074 Filed 9-29-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0880] Drawbridge Operation Regulation; Plum Island River, Newbury, MA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Plum Island Turnpike Bridge across Plum Island River, mile 3.3, between Newburyport and Plum Island, Massachusetts. This deviation is necessary to facilitate a planned water main repair project and allows the bridge to be closed for twenty nine days.

    DATES:

    This deviation is effective from 5 a.m. on October 10, 2017 through 5 p.m. on November 7, 2017.

    ADDRESSES:

    The docket for this deviation, USCG-2017-0880, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email James L. Rousseau, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 617-223-8619, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The owner of the bridge, the Massachusetts Department of Transportation, requested a temporary deviation in order to facilitate a planned water main repair next to the bridge. The project includes installing a temporary water main bypass on the bridge, preventing span operation.

    The Plum Island Turnpike Bridge across Plum Island River, mile 3.3, between Newburyport and Plum Island, Massachusetts is a bascule bridge with a vertical clearance of 13 feet at mean high water and 21 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.615.

    This temporary deviation allows the Plum Island Turnpike Bridge to remain closed beginning 5 a.m. October 10, 2017 until 5 p.m. November 7, 2017. Plum Island River is transited by small recreational vessels. Coordination with waterway users has indicated no objections to the closure of the draw and no requests for openings have occurred during this period for the last three years.

    Vessels that can pass under the bridge without an opening may do so at all times. The bridge will not be able to open for emergencies. The Atlantic Ocean can be used as an alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so vessel operators may arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 27, 2017. Christopher J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2017-21067 Filed 9-29-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0878] Drawbridge Operation Regulation; Pequonnock River, Bridgeport, CT AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Stratford Avenue Bridge across the Pequonnock River, mile 0.1 at Bridgeport, Connecticut. This deviation is necessary to facilitate a planned inspection and will allow the owner to temporarily close the draw for five days from 7:30 a.m. to 5:00 p.m. daily.

    DATES:

    This deviation is effective from 7:30 a.m. on December 4, 2017 to 5 p.m. on December 8, 2017.

    ADDRESSES:

    The docket for this deviation, USCG-2017-0878, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email James L. Rousseau, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 617-223-8619, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The owner of the bridge, the Connecticut Department of Transportation, requested a temporary deviation in order to facilitate planned inspection of the bridge including the entire counterweight sheave shaft/trunnion journal surfaces as well as machinery cross shaft disconnection and disassembly for associated components.

    The Stratford Avenue Bridge across the Pequonnock River, mile 0.1, at Bridgeport, Connecticut is a lift bridge with a vertical clearance of 8 feet at mean high water and 14 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.219(a).

    This temporary deviation will allow the Stratford Avenue Bridge to remain closed each day from 7:30 a.m. to 5 p.m. beginning December 4, 2017 until December 8, 2017. The waterway is transited by small recreational vessels and commercial fishing vessels. Coordination with waterway users has indicated no objections to the proposed closure of the draw. Vessels that can pass under the bridge without an opening may do so at all times. The bridge will not be able to open for emergencies. There is no alternate route for vessels to pass.

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

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

    Dated: September 27, 2017. Christopher J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2017-21068 Filed 9-29-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0927] Drawbridge Operation Regulation; James River, Hopewell, VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the SR 156/Benjamin Harrison Memorial Bridge which carries SR 156 across the James River, mile 65.0, at Hopewell, VA. The deviation is necessary to facilitate bridge maintenance. This deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    This deviation is effective without actual notice from October 2, 2017 through 5 a.m. on Saturday, October 7, 2017. For the purposes of enforcement, actual notice will be used from 7 p.m. on Saturday, September 30, 2017, until October 2, 2017.

    ADDRESSES:

    The docket for this deviation, [USCG-2017-0927] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Virginia Department of Transportation, owner and operator of the SR 156/Benjamin Harrison Memorial Bridge that carries SR 156, across the James River, mile 65.0, at Hopewell, VA, has requested a temporary deviation from the current operating schedule to facilitate structural steel maintenance of the vertical lift span for the drawbridge. The bridge has a vertical clearance of 50 feet above mean high water in the closed position and 145 feet above mean high water in the open position.

    The current operating schedule is set out in 33 CFR 117.5. Under this temporary deviation, the bridge will be in the closed-to-navigation position from 7 p.m. to 5 a.m., daily, all week, on Saturday, September 30, 2017, through Saturday, October 7, 2017.

    The James River is used by a variety of vessels including U.S. Government and public vessels, commercial vessels, tug and barge traffic, and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation. Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies and will open on signal during the closure period, if 30 minutes notice is given. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 27, 2017. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2017-21066 Filed 9-29-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2015-1081] Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone—Corn Festival Fireworks AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce a safety zone on the Illinois River in Morris, IL. This action is necessary and intended to ensure the safety of life and property on navigable waters before, during, and immediately after a shore based firework display. During the enforcement period listed below, vessels and persons are prohibited from transiting through, mooring, or anchoring within this safety zone without approval from the Captain of the Port Lake Michigan or his or her designated representative.

    DATES:

    The regulations in 33 CFR 165.929 will be enforced for the location listed in item (h)(1) in Table 165.929 to 33 CFR 165.929 from 8:15 p.m. until 9:25 p.m. on September 30, 2017.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email LT John Ramos, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2155, email address [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zone listed in 33 CFR 165.929: Safety Zone; Corn Festival Fireworks listed as item (h)(1) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone will encompass all waters of the Illinois River within an 560 foot radius from approximate launch position at 41°21.173′ N. 88°25.101′ W. (NAD 83). This safety zone will be enforced on September 30, 2017 from 8:15 p.m. until 9:25 p.m.

    All vessels must obtain permission from the Captain of the Port Lake Michigan, or his or her designated on-scene representative to enter, move within, or exit this safety zone during the enforcement times listed in this notice of enforcement. All requests must be made in advance and approved by the Captain of the Port Lake Michigan before transits will be authorized. Approvals for entry will be granted on a case-by-case basis. All vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.

    This notice of enforcement is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port Lake Michigan or a designated on-scene representative may be contacted via VHF Channel 16 during the event.

    Dated: September 26, 2017. Thomas J. Stuhlreyer, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan.
    [FR Doc. 2017-21041 Filed 9-29-17; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0727; FRL-9966-09] Fluoxastrobin; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of fluoxastrobin in or on multiple commodities which are identified and discussed later in this document. Arysta LifeScience North America, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective October 2, 2017. Objections and requests for hearings must be received on or before December 1, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0727, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

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

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0727 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 December 1, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0727, by one of the following methods:

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of March 16, 2016 (81 FR 14030) (FRL-9942-86), 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 5F8406) by Arysta LifeScience North America, LLC, 15401 Weston Parkway, Suite 150, Cary, North Carolina, 27513. The petition requested that 40 CFR 180.609 be amended by establishing tolerances for residues of the fungicide fluoxastrobin, (1E)-[2-[[6-(2-chlorophenoxy)-5-fluoro-4- pyrimydinyl]oxy]phenyl] (5,6-dihydro-l,4,2-dioxazin-3-yl)methanone O-methyloxime, and its Z isomer, (1Z)-[2-[[6-(2chlorophenoxy)-5-fluoro-4-pyrimydinyl]oxy]phenyl] (5,6-dihydro-l,4,2-dioxazin-3-yl)methanone O-methyloxime, in or on avocado at 0.9 parts per million (ppm); barley, grain at 0.4 ppm; barley, hay at 15 ppm; barley, straw at 15 ppm; rapeseed subgroup 20A at 0.8 ppm; and dried shelled pea and bean (except soybean) subgroup 6C at 0.2 ppm. No comments were submitted on this notice of filing. Based on data submitted with the petition, the tolerances established by the Agency in this action differ slightly from what the petitioner requested. The reasons for these deviations are discussed in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    In mammals, the liver and kidney were the main target organs. Liver effects (cholestasis) were observed in dogs following subchronic and chronic oral exposures. Dogs were the more sensitive species, with liver effects in dogs occurring at a 35-fold lower dose than elicited adverse effects in other species. Kidney effects were observed in rats and dogs following subchronic exposures, but not following chronic exposures. In rats, effects were also observed in the adrenal glands, urinary bladder, and urethra. There were dose-related changes in the liver and kidneys of mice, however, the changes were not considered to be adverse.

    There was no evidence of increased quantitative or qualitative fetal or offspring susceptibility in the developmental toxicity studies in rats or rabbits or the two-generation reproduction toxicity study in rats. There were no maternal or developmental effects in the rat developmental study. In the developmental toxicity study in rabbits, maternal effects (cold ears, transient body-weight loss, and decreased food consumption) occurred in the absence of fetal toxicity. In the two-generation reproduction study in rats, offspring effects (decreased body weights, delayed preputial separation, and incomplete ossification) occurred at the same dose as parental toxicity (decreased premating absolute body weight and body-weight gain).

    Fluoxastrobin has low acute toxicity via the oral, dermal, and inhalation routes of exposure. Overall, it is mildly irritating to the eyes, but is neither a dermal irritant nor a dermal sensitizer. There were no signs of neurotoxicity or immunotoxicity in the database. Fluoxastrobin is classified as “Not Likely to be Carcinogenic to Humans” based on the absence of treatment-related tumors in two adequate rodent carcinogenicity studies. There was no concern for mutagenicity.

    Specific information on the studies received and the nature of the adverse effects caused by fluoxastrobin 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 Human Health Risk Assessment in Support of Application to Avocado, Barley, Rapeseed subgroup 20A, and Dried Shelled Pea and Bean on pages 14 and 15 in docket ID number EPA-HQ-OPP-2015-0727.

    B. Toxicological Points of Departure/Levels of Concern

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

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

    Table—Summary of Toxicological Doses and Endpoints for Fluoxastrobin for Use in Human Health Risk Assessment Exposure/scenario Point of departure and uncertainty/
  • safety factors
  • RfD, PAD, LOC for risk assessment Study and toxicological effects
    Acute dietary (All Populations) No appropriate toxicological effect attributable to a single dose was observed. Therefore, a dose and endpoint were not identified for this risk assessment. Chronic dietary (All populations) NOAEL = 1.5 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 0.015 mg/kg/day
  • cPAD = 0.015 mg/kg/day
  • Chronic Toxicity Study in Dogs.
  • LOAEL = M/F 8.1/7/7 mg/kg/day based on body weight reductions and hepatocytomegaly and cytoplasmic changes associated with increased serum liver alkaline phosphatase indicative of cholestasis.
  • Incidental oral short-term (1-30 days) and Intermediate-term (1-6 months) NOAEL = 3.0 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • LOC for MOE = <100 90-Day Toxicity in Dogs.
  • LOAEL = 24 mg/kg/day based on reductions in body-weight gain and food efficiency, liver effects (cholestasis), and kidney effects (increased relative weights in females, degeneration of proximal tubular epithelium in males).
  • Dermal short-term (1-30 days) and intermediate-term (1-6 months) Oral study NOAEL = 3.0 mg/kg/day (dermal absorption rate = 2.3%
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = <100
  • Occupational LOC for MOE = <100
  • 90-Day Toxicity in Dog.
  • LOAEL = 24 mg/kg/day based on reductions in body-weight gain and food efficiency, liver effects (cholestasis), and kidney effects (increased relative weights in females, degeneration of proximal tubular epithelium in males).
  • Inhalation short and Intermediate-Term Oral study NOAEL = 3.0 mg/kg/day (inhalation toxicity is considered equivalent to oral toxicity)
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = <100
  • Occupational LOC for MOE = <100
  • 90-Day Toxicity in Dogs.
  • LOAEL = 24 mg/kg/day based on reductions in body-weight gain and food efficiency, liver effects (cholestasis), and kidney effects (increased relative weights in females, degeneration of proximal tubular epithelium in males).
  • Cancer (Oral, dermal, inhalation) Classification: Fluoxastrobin is classified as “not likely to be carcinogenic to humans” based on the absence of treatment-related tumors in two adequate rodent carcinogenicity studies. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fluoxastrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing fluoxastrobin tolerances in 40 CFR 180.609. EPA assessed dietary exposures from fluoxastrobin in food as follows:

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

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the DEEM-FCID, Version 3.16, food consumption data from the 2003-2008 U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues for livestock commodities, average field trial residues for some crop commodities, and percent crop treated (PCT) and percent crop treated for new use (PCTn) estimates for some commodities. DEEM version 7.81 default processing factors were assumed, except for tolerances that were established for processed commodities or when processing studies showed no concentration.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that fluoxastrobin 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. Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

    Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

    • Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

    • Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

    • Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

    The Agency estimated the PCT for existing uses as follows: corn, 1.0%; peanuts, 2.5%; peppers, 2.5%; potatoes, 1.0%; soybeans, 1.0%; and wheat, 2.5%.

    In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), and proprietary market surveys for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis and maximum PCT for acute dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 2.5%. The maximum PCT figure is the highest observed maximum value reported within the most recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except for situations in which the maximum PCT is less than 2.5%. In cases where the estimated value is less than 2.5% but greater than 1%, the average and maximum PCT used are 2.5%. If the estimated value is less than 1%, 1% is used as the average PCT and 2.5% is used as the maximum PCT.

    The Agency estimated the PCT for new uses as follows: avocado, 12%; barley, 16%; canola, 9%; and dry beans/peas, 14%.

    EPA estimates percent crop treated for new uses (PCTn) of fluoxastrobin based on the PCT of the dominant pesticide (i.e., the one with the greatest PCT) used on that crop over the three most recent years of available data. Comparisons are only made among pesticides of the same pesticide types (i.e., the dominant fungicide on the crop is selected for comparison with a new fungicide). The PCTs included in the analysis may be for the same pesticide or for different pesticides since the same or different pesticides may dominate for each year. Typically, EPA uses USDA/NASS as the source for raw PCT data because it is publicly available and does not have to be calculated from available data sources. When a specific use site is not surveyed by USDA/NASS, EPA uses proprietary market research data or other publicly available state data when 80% or more of the crop acreage is grown in that state and calculates the PCTn.

    This estimated PCTn, based on the average PCT of the market leader, is appropriate for use in the chronic dietary risk assessment. This method of estimating a PCT for a new use of a registered pesticide or a new pesticide produces a high-end estimate that is unlikely, in most cases, to be exceeded during the initial five years of actual use. The predominant factors that bear on whether the estimated PCTn could be exceeded are (1) the extent of pest pressure on the crops in question; (2) the pest spectrum of the new pesticide in comparison with the market leaders as well as whether the market leaders are well-established for this use; and (3) resistance concerns with the market leaders. EPA has examined the relevant data and determined that it is unlikely that the actual PCT with fluoxastrobin on avocado, barley, canola (rapeseed subgroup 20A) and dried shelled pea and bean (crop subgroup 6C) will exceed the PCTn within the next five years.

    The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT and PCTn estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which fluoxastrobin may be applied in a particular area.

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

    The estimated drinking water concentrations (EDWCs) in surface water resulting from the proposed fluoxastrobin uses were calculated using the pesticide water calculator (PWC). Groundwater EDWCs for fluoxastrobin were derived for the proposed and existing uses using PRZM-Groundwater (PRZM GW). Based on PRZM GW, the EDWCs of fluoxastrobin for chronic exposures for non-cancer assessments are estimated to be 47.8 ppb for surface water and 182 ppb for ground water. The more conservative modeled estimate of drinking water concentrations (182 ppb) was directly entered into the dietary exposure model to assess the contribution to drinking water and chronic dietary risk.

    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).

    Fluoxastrobin is currently registered for the following uses that could result in residential exposures: Broadcast control of diseases on turf, including lawns and golf courses. EPA assessed residential exposure using the following assumptions:

    i. Residential Handler Exposure: All registered fluoxastrobin product labels with residential use sites (e.g., turf and ornamentals) require that handlers wear specific clothing (e.g., long sleeve shirt/long pants) and/or use personal-protective equipment (PPE). Therefore, the Agency has made the assumption that these products are not intended for homeowner use, and has not conducted a quantitative residential handler assessment.

    ii. Residential Post-Application Exposure: Adults and children performing physical activities on turf and ornamentals during post-application activities (e.g., high-contact lawn activities, mowing, and gardening) may receive dermal exposure to fluoxastrobin residues. Young children 1 to <2 years old may also receive incidental oral post-application exposure to fluoxastrobin from treated turf. Residential post-application exposure is expected to be short-term in duration. Intermediate-term exposures are not likely because of the intermittent nature of exposure to homeowners. Post-application dermal and hand-to-mouth exposure scenarios were combined for children 1 <2 years old. This combination was considered a protective estimate of children's exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

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

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA 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. As discussed in Unit III.A., there is no evidence of quantitative or qualitative fetal or offspring susceptibility in the developmental toxicity studies in rats or rabbits nor in two-generation reproduction studies in rats.

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

    i. The toxicity database for fluoxastrobin is complete.

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

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

    iv. There are no residual uncertainties identified in the exposure databases. A partially refined chronic aggregate dietary (food and drinking water) exposure and risk assessments were conducted. The assumptions of the dietary assessment include tolerance-level residues for livestock commodities, average field-trial residues for some crop commodities, and PCT and PCTn estimates for some commodities. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluoxastrobin in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by fluoxastrobin.

    E. Aggregate Risks and Determination of Safety

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

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

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluoxastrobin from food and water will utilize 31% of the cPAD for the general U.S population and 77% of the cPAD for all infants <1-year-old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of fluoxastrobin is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Fluoxastrobin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to fluoxastrobin.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 150 for adults and 100 for children (1-2 years old). The Agency does not have concern if the MOEs are equal to or greater than 100. Furthermore, many conservative assumptions were incorporated into the assessment, so the actual exposure and risk are likely to be considerably lower than the estimates in the Agency assessment.

    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, fluoxastrobin 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 fluoxastrobin.

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, fluoxastrobin 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 fluoxastrobin residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (liquid chromatography/mass spectrometry) is available to enforce the tolerance expression. Method No. 00604 is available for plant commodities and Method No. 00691 is available for livestock 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]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for fluoxastrobin.

    C. Revisions to Petitioned-For Tolerances

    EPA is establishing tolerance levels for the following commodities that differ from what the petitioner requested: Avocado from 0.9 ppm to 1.0 ppm; barley, grain from 0.4 ppm to 0.40 ppm; rapeseed subgroup 20A from 0.8 ppm to 0.70 ppm; pea and bean, dried shelled, except soybean, subgroup 6C from 0.2 ppm to 0.20 ppm. The tolerances for avocado and rapeseed subgroup 20A differ because the Agency used different inputs for determining those tolerance levels. Although the petitioner and the Agency both used the Organization for Economic Co-operation and Development (OECD) calculation procedures to obtain tolerance levels, the Agency determined that some of the trials were not independent. In addition, if a higher residue value was observed at a preharvest interval (PHI) longer than the minimum labeled PHI, then the Agency used the highest value.

    The Agency added a significant figure to the tolerances for barley, grain and pea and bean, dried shelled, except soybean to conform to current Agency policy on significant figures. In addition, the Agency has modified the commodity definition for dried shelled pea and bean (crop subgroup 6C) to pea and bean, dried shelled, except soybean, subgroup 6C in order for consistency with the Agency's food and feed commodity vocabulary.

    V. Conclusion

    Therefore, tolerances are established for residues of fluoxastrobin, and its Z-isomer in or on avocado at 1.0 ppm; barley, grain at 0.40 ppm; barley, hay at 15 ppm; barley, straw at 15 ppm; rapeseed subgroup 20A at 0.70 ppm; and pea and bean, dried shelled, except soybean, subgroup 6C at 0.20 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: August 31, 2017. Michael Goodis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.609, add alphabetically “avocado”, “barley, grain”; “barley, hay”; “barley, straw”; “pea and bean, dried shelled, except soybean, subgroup 6C”; and “rapeseed, subgroup 20A” to the table in paragraph (a)(1) to read as follows:
    § 180.609 Fluoxastrobin; tolerances for residues.

    (a) * * * (1) * * *

    Commodity Parts per million Avocado 1.0 Barley, grain 0.40 Barley, hay 15 Barley, straw 15 *    *    *    *    * Pea and bean, dried shelled, except soybean, subgroup 6C 0.20 *    *    *    *    * Rapeseed, subgroup 20A 0.70 *    *    *    *    *
    [FR Doc. 2017-21113 Filed 9-29-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [EPA-R06-RCRA-2017-0254; FRL-9968-61-Region 6] Hazardous Waste Management System; Identification and Listing of Hazardous Waste AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is granting a petition submitted by Samsung Austin Semiconductor (Samsung) to exclude from hazardous waste control (or delist) a certain solid waste. This final rule responds to the petition submitted by Samsung to have the copper filter cake from the electroplating process excluded, or delisted from the definition of a hazardous waste. The Copper filter cake is listed as F006, wastewater treatment sludges from electroplating operations. The basis of the listing is cadmium, hexavalent chromium, nickel, and cyanide (complexed). After careful analysis and evaluation of comments submitted by the public, the EPA has concluded that the petitioned wastes are not hazardous waste when disposed of in Subtitle D landfills. This exclusion applies to the copper filter cake generated at Samsung Austin Semiconductor's Austin, Texas facility. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when disposed of in Subtitle D landfills, but imposes testing conditions to ensure that the future-generated wastes remain qualified for delisting.

    DATES:

    This final rule is effective on October 2, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-RCRA-2017-0254. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For technical information regarding the Samsung Austin Semiconductor petition, contact Michelle Peace at 214-665-7430 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The information in this section is organized as follows:

    I. Overview Information A. What action is EPA finalizing? B. Why is EPA approving this delisting? C. What are the limits of this exclusion? D. How will Samsung Austin Semiconductor manage the waste if it is delisted? E. When is the final delisting exclusion effective? F. How does this final rule affect states? II. Background A. What is a “delisting”? B. What regulations allow facilities to delist a waste? C. What information must the generator supply? III. EPA's Evaluation of the Waste Data A. What waste and how much did Samsung Austin Semiconductor petition EPA to delist? B. How did Samsung Austin Semiconductor sample and analyze the waste data in this petition? IV. Public Comments Received on the Proposed Exclusion Who submitted comments on the proposed rule? V. Statutory and Executive Order Reviews I. Overview Information A. What action is EPA finalizing?

    The EPA is finalizing:

    (1) The decision to grant Samsung Austin Semiconductor's petition to have its copper filter cake excluded, or delisted, from the definition of a hazardous waste, subject to certain continued verification and monitoring conditions; and

    (2) To use the Delisting Risk Assessment Software v.3.0.35 to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency used this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.

    After evaluating the petition, EPA proposed a rule, on July 14, 2017, to exclude the Samsung Austin Semiconductor copper filter cake waste from the lists of hazardous wastes under §§ 261.31 and 261.32. There were no comments received on this rulemaking.

    B. Why is EPA approving this delisting?

    Samsung's petition requests an exclusion from the F006 waste listing pursuant to 40 CFR 260.20 and 260.22. Samsung does not believe that the petitioned waste meets the criteria for which EPA listed it. Samsung also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in § 261.11(a)(2) and (3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous, with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's proposed decision to delist waste from Samsung is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Austin, Texas facility.

    C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only if the requirements described in Table 1 of part 261, appendix IX and the conditions contained herein are satisfied. The conditional exclusion applies to 750 cubic yards of copper filter cake sludge generated annually from the Samsung Austin Semiconductor facility in Austin, TX.

    D. How will Samsung Austin Semiconductor manage the waste if it is delisted?

    Storage containers of the copper filter cake will be transported to an authorized, solid waste landfill (e.g., RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.) for disposal. Any plans for recycling must be addressed through the Hazardous Waste Recycling regulations.

    E. When is the final delisting exclusion effective?

    This rule is effective October 2, 2017. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

    F. How does this final rule affect states?

    Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received our authorization to make their own delisting decisions.

    Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.

    EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If Samsung Austin Semiconductor transports the petitioned waste to or manages the waste in any State with delisting authorization, Samsung Austin Semiconductor must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.

    II. Background A. What is a delisting?

    A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude from the list of hazardous wastes, wastes the generator does not consider hazardous under RCRA.

    B. What regulations allow facilities to delist a waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268 and 273 of title 40 of the Code of Federal Regulations. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste on a “generator-specific” basis from the hazardous waste lists.

    C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow the EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.

    III. EPA's Evaluation of the Waste Data A. What waste and how much did Samsung Austin Semiconductor petition EPA to delist?

    In November 2015, Samsung petitioned EPA to exclude from the lists of hazardous wastes contained in §§ 261.31 and 261.32, filter cake (F006) generated from its facility located in Austin, Texas. The waste falls under the classification of listed waste pursuant to §§ 261.31 and 261.32. Specifically, in its petition, Samsung requested that EPA grant a conditional exclusion for 750 cubic yards of F006 filter cake.

    The 40 CFR part 261 appendix VII hazardous constituents which are the basis for listing can be found in Table 1.

    Table 1—EPA Waste Codes for Copper Filter Cake and the Basis for Listing Waste code Basis for listing F006 Cadmium, hexavalent chromium, nickel, cyanide (complexed). B. How did Samsung Austin Semiconductor sample and analyze the waste data in this petition?

    To support its petition, Samsung Austin Semiconductor submitted:

    (1) Historical information on waste generation and management practices; and

    (2) Analytical results from eight samples for total and TCLP concentrations of compounds of concern (COC)s;

    Table 2—Analytical Results/Maximum Allowable Delisting Concentration Copper Filter Cake Samsung Austin Semiconductor, Austin, Texas Constituent Maximum total
  • concentration
  • (mg/kg)
  • Maximum
  • TCLP
  • concentration
  • (mg/L)
  • Maximum
  • TCLP delisting level
  • (mg/L)
  • Acetone 0.0013 0.24 2070.0 Arsenic 3.6 0.098 1.66 Barium 5.30 0.13 100.0 Cadmium 0.75 0.004 0.362 Carbon disulfide 2.7 0.043 224.75 Chromium 42 0.12 5.0 Chromium(VI) (+6) 1.7 0.072 5.0 Cobalt 1.6 0.035 1.36 Copper 14600 5.4 97.1 Lead 6.3 0.11 2.45 Nickel 25.7 0.078 53.8 Selenium 1.4 0.072 1.0 Silver 0.95 0.0012 5.0 Thallium 1.7 ND 0.1458 Tin 7.6 ND 22.5 Toluene 2.5 ND 60.1 Vanadium 25.8 0.014 14.36 Zinc 43.0 0.21 797 Notes: These levels represent the highest constituent concentration found in any one sample and does not necessarily represent the specific level found in one sample.
    IV. Public Comments Received on the Proposed Exclusion Who submitted comments on the proposed rule?

    The EPA received no public comments on the July 14, 2017, proposed rule.

    V. Statutory and Executive Order Reviews

    Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore, is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, this rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism”, (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule.

    Similarly, because this rule will affect only a particular facility, this rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used DRAS, which considers health and safety risks to children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform”, (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

    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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability. Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

    EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The Agency's risk assessment did not identify risks from management of this material in an authorized, solid waste landfill (e.g., RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.). Therefore, EPA believes that any populations in proximity of the landfills used by this facility should not be adversely affected by common waste management practices for this delisted waste.

    List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.

    Authority:

    Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: September 19, 2017. Wren Stenger, Director, Multimedia Division, Region 6.

    For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:

    PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 1. The authority citation for part 261 continues to read as follows: Authority:

    42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938.

    2. In table 1 of appendix IX to part 261 add the entry “Samsung” in alphabetical order to read as follows: Appendix IX to Part 261—Wastes Excluded Under §§ 260.20 and 260.22 Table 1—Wastes Excluded From Non-Specific Sources Facility Address Waste description *         *         *         *         *         *         * Samsung Austin, TX Copper Filter Cake (EPA Hazardous Waste Numbers F006) generated at a maximum rate of 750 cubic yards annually. For the exclusion to be valid, Samsung must implement a verification testing program for each of the waste streams that meets the following Paragraphs: (1) Delisting Levels: All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph. Copper Filter Cake. Leachable Concentrations (mg/l): Acetone—2070.0; Arsenic—1.66; Barium—100.0; Cadmium—0.362; Carbon Disulfide—224.75; Chromium—5.0; Chromium (VI)—5.0; Cobalt—1.36; Copper—97.1; Lead—2.45; Nickel—53.8; Selenium—1.0; Silver—5.0; Thallium—0.01458; Tin—22.5; Toluene—60.1; Vanadium—14.36; Zinc—797 (2) Waste Holding and Handling: (A) Waste classification as non-hazardous cannot begin until compliance with the limits set in paragraph (1) for the Copper Filter cake is verified. (B) If constituent levels in any sample and retest sample taken by Samsung exceed any of the delisting levels set in paragraph (1) for the Copper Filter cake, Samsung must do the following: (i) notify EPA in accordance with paragraph (5) and (ii) manage and dispose the Copper Filter cake as hazardous waste generated under Subtitle C of RCRA. (3) Testing Requirements: Samsung must perform analytical testing by sampling and analyzing the Copper Filter cake as follows: (i) Collect a representative sample of the Copper Filter cake for analysis of all constituents listed in paragraph (1) prior to disposal. (ii) The samples for the annual testing shall be a representative sample, according to appropriate methods. As applicable to the method-defined parameters of concern, analyses requiring the use of SW-846 methods incorporated by reference in 40 CFR 260.11 must be used without substitution. As applicable, the SW-846 methods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B,1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the Samsung Copper filter cake is representative for all constituents listed in paragraph (1). (4) Data Submittals: Samsung must submit the information described below. If Samsung fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph (6). Samsung must: (A) Submit the data obtained through paragraph 3 to the Section Chief, 6MM-RP, Multimedia Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Suite 1200, Dallas, Texas 75202, within the time specified. All supporting data can be submitted on CD-ROM or comparable electronic media. (B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site for a minimum of five years. (C) Furnish these records and data when either EPA or the State of Texas requests them for inspection. (D) Send along with all data a signed copy of the following certification statement, to attest to the truth and accuracy of the data submitted: “Under civil and criminal penalty of law for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that the information contained in or accompanying this document is true, accurate and complete. As to the (those) identified section(s) of this document for which I cannot personally verify its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete. If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company's RCRA and CERCLA obligations premised upon the company's reliance on the void exclusion.” (5) Reopener: (A) If any time after disposal of the delisted waste Samsung possesses or is otherwise made aware of any environmental data (including but not limited to underflow water data or ground water monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the Division Director in granting the petition, then the facility must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (B) If either the verification testing (and retest, if applicable) of the waste does not meet the delisting requirements in paragraph 1, Samsung must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (C) If Samsung fails to submit the information described in paragraphs (5),(6)(A) or (6)(B) or if any other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. (D) If the Division Director determines that the reported information requires action by EPA, the Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed EPA action is not necessary. The facility shall have 10 days from receipt of the Division Director's notice to present such information. (E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination describing EPA actions that are necessary to protect human health and/or the environment. Any required action described in the Division Director's determination shall become effective immediately, unless the Division Director provides otherwise. (6) Notification Requirements: Samsung must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision. (A) Provide a one-time written notification to any state Regulatory Agency to which or through which it will transport the delisted waste described above for disposal, 60 days before beginning such activities. (B) For onsite disposal, a notice should be submitted to the State to notify the State that disposal of the delisted materials has begun. (C) Update one-time written notification, if it ships the delisted waste into a different disposal facility. (D) Failure to provide this notification will result in a violation of the delisting exclusion and a possible revocation of the decision. *         *         *         *         *         *         *
    [FR Doc. 2017-21112 Filed 9-29-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 161020985-7181-02] RIN 0648-XF712 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Atka Mackerel in the Bering Sea and Aleutian Islands Management Area AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is reallocating the projected unused amount of the 2017 Atka mackerel incidental catch allowance (ICA) for the Bering Sea subarea and Eastern Aleutian district (BS/EAI) to the Amendment 80 cooperative allocations in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the 2017 total allowable catch of Atka mackerel in the BSAI to be fully harvested.

    DATES:

    Effective 12 hrs Alaska local time (A.l.t.), September 27, 2017 through 2400 hrs, A.l.t., December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The 2017 Atka mackerel ICA for the BS/EAI is 1,000 metric tons (mt) and 2017 Atka mackerel total allowable catch allocated to the Amendment 80 cooperatives is 26,694 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826; February 27, 2017).

    The Administrator, Alaska Region, NMFS, has determined that 900 mt of the Atka mackerel ICA for the BS/EAI will not be harvested. Therefore, in accordance with § 679.91(f), NMFS reallocates 900 mt of Atka mackerel from the BS/EAI ICA to the Amendment 80 cooperatives in the BSAI. In accordance with § 679.91(f), NMFS will reissue cooperative quota permits for the reallocated Atka mackerel following the procedures set forth in § 679.91(f)(3).

    The harvest specifications for Atka mackerel included in the harvest specifications for groundfish in the BSAI (82 FR 11826; February 27, 2017) are revised as follows: 100 mt of Atka mackerel for the BS/EAI ICA and 27,594 mt of Atka mackerel for the Amendment 80 cooperative allocations in the BS/EAI. Table 6 is revised and republished in its entirety as follows:

    Table 6—Final 2017 Seasonal and Spatial Allowances, Gear Shares, CDQ Reserve, Incidental Catch Allowance, and Amendment 80 Allocations of the BSAI Atka Mackerel TAC [Amounts are in metric tons] Sector 1 Season 2 3 4 2017 allocation by area Eastern
  • Aleutian
  • district/
  • Bering Sea
  • Central
  • Aleutian
  • district 5
  • Western
  • Aleutian
  • district
  • TAC n/a 34,500 18,000 12,500 CDQ reserve Total 3,692 1,926 1,338 A 1,846 963 669 Critical Habitat n/a 578 401 B 1,846 963 669 Critical Habitat n/a 578 401 Non-CDQ TAC n/a 30,809 16,074 11,163 ICA Total 100 75 20 Jig 6 Total 149 0 0 BSAI trawl limited access Total 2,966 1,600 0 A 1,483 800 0 Critical Habitat n/a 480 0 B 1,483 800 0 Critical Habitat n/a 480 0 Amendment 80 sectors Total 27,594 14,399 11,143 A 13,797 7,200 5,571 B 13,797 7,200 5,571 Alaska Groundfish Cooperative Total 6 15,629 8,545 6,852 A 7,815 4,273 3,426 Critical Habitat n/a 2,564 2,056 B 7,815 4,273 3,426 Critical Habitat n/a 2,564 2,056 Alaska Seafood Cooperative Total 6 11,965 5,854 4,291 A 5,983 2,927 2,146 Critical Habitat n/a 1,756 1,287 B 5,983 2,927 2,146 Critical Habitat n/a 1,756 1,287 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the CDQ reserves, jig gear allocation, and ICAs, to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to 50 CFR part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Sections 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 10 and the B season from June 10 to December 31. 5 Section 679.20(a)(8)(ii)(C)(1)(i) limits no more than 60 percent of the annual TACs in Areas 542 and 543 to be caught inside of critical habitat; § 679.20(a)(8)(ii)(C)(1)(ii) equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3); and § 679.20(a)(8)(ii)(C)(2) requires the TAC in Area 543 shall be no more than 65 percent of ABC. 6 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtracting the CDQ reserve and ICA. The amount of this allocation is 0.5 percent. The jig gear allocation is not apportioned by season. Note: Seasonal or sector apportionments may not total precisely due to rounding.

    This will enhance the socioeconomic well-being of harvesters dependent upon Atka mackerel in this area. The Regional Administrator considered the following factors in reaching this decision: (1) The current catch of Atka mackerel ICA in the BS/EAI, (2) the harvest capacity and stated intent on future harvesting patterns of the Amendment 80 cooperatives that participate in this BS/EAI fishery.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Atka mackerel from the BS/EAI ICA to the Amendment 80 cooperatives in the BSAI. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 19, 2017.

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

    This action is required by § 679.91 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 27, 2017. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21042 Filed 9-27-17; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 160920866-7167-02] RIN 0648-XF648 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 610 in the Gulf of Alaska AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for pollock in Statistical Area 610 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the C season apportionment of the 2017 total allowable catch of pollock for Statistical Area 610 in the GOA.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), September 27, 2017, through 1200 hrs, A.l.t., October 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The C season apportionment of the 2017 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 23,483 metric tons (mt) as established by the final 2017 and 2018 harvest specifications for groundfish in the GOA (82 FR 12032, February 27, 2017) and inseason adjustment (82 FR 41567, September 1, 2017).

    In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the C season apportionment of the 2017 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 23,300 mt and is setting aside the remaining 183 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

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

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(C) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 26, 2017.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 27, 2017. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21031 Filed 9-27-17; 4:15 pm] BILLING CODE 3510-22-P
    82 189 Monday, October 2, 2017 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0814; Product Identifier 2017-NM-066-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This proposed AD was prompted by significant changes made to the airworthiness limitations (AWL) related to fuel tank ignition prevention and the nitrogen generation system. This proposed AD would require revision of the maintenance or inspection program, as applicable, to include the latest revision of the AWLs. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by November 16, 2017.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0814; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tak Kobayashi, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6499; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0814; Product Identifier 2017-NM-066-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

    Discussion

    The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a final rule titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, that rule included Amendment 21-78, which established Special Federal Aviation Regulation No. 88 (“SFAR 88”) at 14 CFR part 21. Subsequently, SFAR 88 was amended by: Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002) and Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”).

    Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the final rule published on May 7, 2001, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

    In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with another latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

    We issued AD 2008-10-10 R1, Amendment 39-16164 (75 FR 1529, January 12, 2010) (“AD 2008-10-10 R1”), which applies to certain The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes. AD 2008-10-10 R1 requires incorporation of fuel system AWLs and also requires an initial inspection to phase in certain repetitive inspections, and repair if necessary. The fuel system AWLs were developed to satisfy SFAR 88 requirements and included in the Airworthiness Limitations Section (ALS) of the manufacturer's Instructions for Continued Airworthiness. Since we issued AD 2008-10-10 R1, the ALS has been significantly revised by the manufacturer to correct technical and editorial errors and also to add new requirements. Those changes affect the fuel system and nitrogen generation system AWLs. We have determined that the specific revisions of the ALS mandated by AD 2008-10-10 R1, and the revisions of the ALS that have been delivered with airplanes as part of the type design and airworthiness certificate, on or after March 31, 2006 (see paragraph (c), “Applicability,” of AD 2008-10-10 R1, which applied to airplanes with an original standard airworthiness certificate or original export certificate of airworthiness issued before March 31, 2006), are inadequate to provide information necessary to maintain critical design features and perform inspections.

    We propose to adopt this new AD to require revising the maintenance or inspection program, as applicable, to incorporate the AWLs provided in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, dated January 2017 (the latest revision of the ALS). We are proposing this AD to prevent the potential for ignition sources inside the fuel tanks and also to prevent increasing the flammability exposure of the center fuel tank caused by latent failures, alterations, repairs, or maintenance actions, which could result in a fuel tank explosion and consequent loss of an airplane.

    We have determined that accomplishing the revision required by paragraph (g) of this proposed AD would terminate the following requirements for that airplane:

    • All requirements of AD 2008-10-10 R1.

    • The revision required by paragraphs (h) and (h)(1) of AD 2008-06-03, Amendment 39-15415 (73 FR 13081, March 12, 2008).

    • The revision required by paragraph (g) of AD 2008-17-15, Amendment 39-15653 (73 FR 50714, August 28, 2008).

    • The revision required by paragraph (k) of AD 2011-18-03, Amendment 39-16785 (76 FR 53317, August 26, 2011).

    • All requirements of AD 2013-15-17, Amendment 39-17533 (78 FR 52838, August 27, 2013).

    Airworthiness Limitations Based on Type Design

    The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of the Airworthiness Limitations section (ALS) of the Instructions for Continued Airworthiness (ICA) into an operator's maintenance or inspection program.

    U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

    When a type certificate is issued for a type design, the specific ALS, including its revision level, is part of that type design, as specified in 14 CFR 21.31(c).

    The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS revision defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD if the AD requires a specific ALS revision for new airplanes that are delivered with a later ALS revision as part of their type design.

    The FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This enables the operator to comply with both the AD and the type design.

    However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to mandate the latest ALS revision as of the effective date of an AD, if we are to mandate a specific ALS revision, and limit the applicability to those airplanes delivered on or before the effective date of that AD.

    This proposed AD therefore mandates the latest ALS revision as of the effective date of the AD for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the effective date of the AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated January 2017. This service information describes AWLs that include airworthiness limitation instructions (ALI) and critical design configuration control limitations (CDCCL) tasks related to fuel tank ignition prevention and the nitrogen generation system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections) and CDCCLs. Compliance with these actions and CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k) of this proposed AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

    Notwithstanding any other maintenance or operational requirements, components that have been identified as airworthy or installed on the affected airplanes before accomplishing the revision of the airplane maintenance or inspection program specified in this proposed AD do not need to be reworked in accordance with the latest revision of the CDCCLs specified by this proposed AD for incorporation. However, once the airplane maintenance or inspection program has been revised as required by this proposed AD, future maintenance actions on these components must be done in accordance with the CDCCLs specified by this proposed AD.

    Differences With the Service Information

    The “description” column of AWL No. 28-AWL-20 identifies certain operational tests. However, airplanes on which the actions specified in paragraph (g)(2)(ii) of AD 2011-20-07 have been done are not required to do the operational test for left center tank fuel boost pump relay R54 and right center tank fuel boost pump relay R55.

    Paragraph (g) of this proposed AD would require operators to revise their maintenance or inspection program by incorporating, in part, AWL No. 28-AWL-05, “Wire Separation Requirements for New Wiring Installed in Proximity to Wiring That Goes Into the Fuel Tanks” in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated January 2017. Paragraph (h) of this proposed AD would allow certain changes to be made to the requirements specified in AWL No. 28-AWL-05 as an option.

    Clarification of the Service Information

    The “applicability” column of AWL No. 28-AWL-19 identifies affected airplanes. For airplanes on which the actions specified in paragraph (s) of AD 2011-18-03 have been done, incorporation of Boeing Service Bulletin 737-28A1206 is not required. Therefore, those airplanes are not affected by AWL No. 28-AWL-19 and are not required to do the functional test.

    The “applicability” column of AWL No. 28-AWL-23 identifies affected airplanes. For airplanes on which the actions specified in paragraph (s) of AD 2011-18-03 have been done, incorporation of Boeing Service Bulletin 737-28A1248 is not required. Therefore, those airplanes are not affected by AWL No. 28-AWL-23 and are not required to do the functional test.

    Alternative Methods of Compliance (AMOC) Previously Approved for Compliance With AD 2008-10-10 R1

    The FAA has previously issued AMOC approvals for compliance with paragraph (g)(3) of AD 2008-10-10 R1 to allow operators to incorporate alternative versions of AWL No. 28-AWL-05. AWL No. 28-AWL-05 includes the requirements for new wiring introduced by any alterations or changes to the type design, including STC modifications, in proximity to wiring that penetrates the fuel tank wall. Certain STCs that introduced new wiring near the fuel quantity indicating system (FQIS) wiring utilized design features that were different from the critical design features for fuel tank ignition prevention specified in the AD-mandated version of AWL No. 28-AWL-05. For those STCs, we have approved alternative versions of AWL No. 28-AWL-05 that specified critical design features associated with STC modifications. We have determined that certain critical design features specified in the AMOC-approved versions of AWL No. 28-AWL-05 are not acceptable to meet the intent of this AWL. Therefore, this proposed AD does not allow credit for AMOCs previously approved under AD 2008-10-10 R1. However, based on our assessment of critical design features, we have provided an optional action under paragraph (h) of this proposed AD to allow certain changes to be made to the requirements specified in AWL No. 28-AWL-05. Under this optional action, certain critical design features we have previously approved and consider to be acceptable can be specified in AWL No. 28-AWL-05.

    The requirements for new wiring versus existing wiring are specified in AWL No. 28-AWL-05. Based on these requirements, any STC modifications that are installed after the incorporation of AWL No. 28-AWL-05 (version required by paragraph (g) of this AD) must comply with AWL No. 28-AWL-05, including any mandatory rework, or the operator must request approval of an AMOC according to paragraph (k) of this proposed AD. Any STC modifications that are installed prior to the incorporation of AWL No. 28-AWL-05 (version required by paragraph (g) of this AD) are not required to be reworked for compliance with the new wiring requirements of AWL No. 28-AWL-05, except that future repair and replacement of existing wiring must follow AWL No. 28-AWL-05.

    Costs of Compliance

    We estimate that this proposed AD affects 1,417 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Revising the maintenance or inspection program 1 work-hour × $85 per hour = $85 $0 $85 $120,445
    Authority for This Rulemaking

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

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

    This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2017-0814; Product Identifier 2017-NM-066-AD. (a) Comments Due Date

    We must receive comments by November 16, 2017.

    (b) Affected ADs

    This AD affects the ADs specified in paragraphs (b)(1) through (b)(5) of this AD.

    (1) AD 2008-06-03, Amendment 39-15415 (73 FR 13081, March 12, 2008) (“AD 2008-06-03”).

    (2) AD 2008-10-10 R1, Amendment 39-16164 (75 FR 1529, January 12, 2010) (“AD 2008-10-10 R1”).

    (3) AD 2008-17-15, Amendment 39-15653 (73 FR 50714, August 28, 2008) (“AD 2008-17-15”).

    (4) AD 2011-18-03, Amendment 39-16785 (76 FR 53317, August 26, 2011) (“AD 2011-18-03”).

    (5) AD 2013-15-17, Amendment 39-17533 (78 FR 52838, August 27, 2013) (“AD 2013-15-17”).

    (c) Applicability

    This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, with an original standard airworthiness certificate or original export certificate of airworthiness issued on or before the effective date of this AD.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by significant changes made to airworthiness limitations (AWL) related to fuel tank ignition prevention and the nitrogen generation system. We are issuing this AD to prevent the development of an ignition source inside the fuel tanks and also to prevent increasing the flammability exposure of the center fuel tank, which could lead to fuel tank explosion and consequent loss of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 60 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information in Section A, including Subsections A.1, A.2, and A.3, of Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated January 2017; except as provided by paragraph (h) of this AD. The initial compliance times for the airworthiness limitation instructions (ALI) tasks are within the applicable compliance times specified in paragraphs (g)(1) through (g)(11) of this AD:

    (1) For AWL No. 28-AWL-01, “External Wires Over Center Fuel Tank”: Within 120 months after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, or within 120 months after the most recent inspection was performed as specified in AWL No. 28-AWL-01, whichever is later.

    (2) For AWL No. 28-AWL-03, “Fuel Quantity Indicating System (FQIS)—Out Tank Wiring Lightning Shield to Ground Termination”: Within 120 months after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, or within 120 months after the most recent inspection was performed as specified in AWL No. 28-AWL-03, whichever is later.

    (3) For AWL No. 28-AWL-19, “Center Tank Fuel Boost Pump Automatic Shutoff System”: Within 12 months after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1206, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-19, whichever is latest. This AWL does not apply to airplanes that have complied with paragraph (s) of AD 2011-18-03.

    (4) For AWL No. 28-AWL-20, “Over-Current and Arcing Protection Electrical Design Features Operation—Boost Pump Ground Fault Interrupter (GFI)”: Within 12 months after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1201, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-20, whichever is latest. For airplanes that have complied with paragraph (g)(2)(ii) of AD 2011-20-07, the operational test for left center tank fuel boost pump relay R54 and right center tank fuel boost pump relay R55 does not apply.

    (5) For AWL No. 28-AWL-23, “Center Tank Fuel Boost Pump Power Failed On Protection System”: Within 12 months after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1248, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-23, whichever is latest. This AWL does not apply to airplanes that have complied with paragraph (s) of AD 2011-18-03.

    (6) For AWL No. 28-AWL-24, “Spar Valve Motor Operated Valve (MOV) Actuator—Lightning and Fault Current Protection Electrical Bond”: Within 72 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1207, or within 72 months after the most recent inspection was performed as specified in AWL No. 28-AWL-24, whichever is later.

    (7) For AWL No. 28-AWL-29, “Full Cushion Clamps and Teflon Sleeving (If Installed) Installed on Out-of-Tank Wire Bundles Installed on Brackets that are Mounted Directly on the Fuel Tanks”: For airplanes having line numbers (L/N) 1 through 1754 inclusive, within 120 months after accomplishment of the actions specified in Boeing Service Bulletin 737-57A1279. For airplanes having L/N 1755 and on, within 120 months after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, or within 24 months after the effective date of this AD, whichever is later.

    (8) For AWL No. 47-AWL-04, “Nitrogen Generation System—Thermal Switch”: Within 22,500 flight hours after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, within 22,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1003, or within 22,500 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-04, whichever is latest.

    (9) For AWL No. 47-AWL-06, “Nitrogen Generation System (NGS)—Cross Vent Check Valve”: Within 13,000 flight hours after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, within 13,000 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1003, or within 13,000 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-06, whichever is latest.

    (10) For AWL No. 47-AWL-07, “Nitrogen Generation System (NGS)—Nitrogen Enriched Air (NEA) Distribution Ducting Integrity”: Within 6,500 flight hours after the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, within 6,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1003, or within 6,500 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-07, whichever is latest.

    (11) For AWL No. 28-AWL-101, “Engine Fuel Suction Feed Operational Test”: Within 7,500 flight hours or 36 months, whichever occurs first, after the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness; or within 7,500 flight hours or 36 months, whichever occurs first, after the most recent inspection was performed as specified in AWL No. 28-AWL-101; whichever is later.

    (h) Exceptions to Service Information

    As an option, when accomplishing the actions required by paragraph (g) of this AD, the changes specified in paragraphs (h)(1) and (h)(2) of this AD can be made to AWL No. 28-AWL-05.

    (1) Where AWL No. 28-AWL-05 identifies wire types BMS 13-48, BMS 13-58, and BMS 13-60, add the following acceptable wire types: MIL-W-22759/16, MIL-W-22759/32, MIL-W-22759/34, MIL-W-22759/41, MIL-W-22759/86, MIL-W-22759/87, and MIL-W-22759/92; and MIL-C-27500 cables constructed from these wire types.

    (2) Where AWL No. 28-AWL-05 identifies TFE-2X Standard wall for wire sleeving, add the following acceptable sleeving materials: Roundit 2000NX and Varglas Type HO, HP, or HM.

    (i) No Alternative Actions, Intervals, and Critical Design Configuration Control Limitations (CDCCLs)

    After the maintenance or inspection program, as applicable, has been revised as required by paragraph (g) of this AD, no alternative actions (e.g., inspections), intervals, and CDCCLs may be used unless the actions, intervals, and CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (k) of this AD.

    (j) Terminating Actions

    Accomplishment of the revision required by paragraph (g) of this AD terminates the requirements specified in paragraphs (j)(1) through (j)(5) of this AD for that airplane:

    (1) The revision required by paragraphs (h) and (h)(1) of AD 2008-06-03.

    (2) All requirements of AD 2008-10-10 R1.

    (3) The revision required by paragraph (g) of AD 2008-17-15.

    (4) The revision required by paragraph (k) of AD 2011-18-03; and

    (5) All requirements of AD 2013-15-17.

    (k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (l) Related Information

    (1) For more information about this AD, contact Tak Kobayashi, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6499; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on September 14, 2017. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-20560 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0822; Airspace Docket No. 17-AEA-10] Proposed Revocation of Class E Airspace; Centerville, MD AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to remove Class E airspace extending upward from 700 feet above the surface at Centerville, MD. Because the Maryland State Police Trooper 6 Heliport has moved, controlled airspace is no longer required at this location. Another rulemaking will be forthcoming establishing controlled airspace at the heliport's new location.

    DATES:

    Comments must be received on or before November 16, 2017.

    ADDRESSES:

    Send comments on this rule to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm. W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or (202) 366-9826.You must identify the Docket No. FAA-2017-0822; Airspace Docket No. 17-AEA-10, at the beginning of your comments. You may also submit and review received comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed 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 would remove Class E airspace extending upward from 700 feet above the surface at Maryland State Police Trooper 6 Heliport, Centerville, MD, due to the closing of the heliport.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2017-0822; Airspace Docket No. 17-AEA-10) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2014-0822; Airspace Docket No. 17-AEA-10.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is considering an amendment to title 14, Code of Federal Regulations (14 CFR) part 71 to remove Class E airspace extending upward from 700 feet above the surface at Maryland State Police Trooper 6 Heliport, Centerville, MD. The heliport has moved to a new location. Therefore, the airspace is no longer necessary at this site.

    Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AEA MD E5 Centerville, MD [Removed] Issued in College Park, Georgia, on September 22, 2017. Ryan W. Almasy, Manager, Operations Support Group, Eastern Serivice Center, Air Traffic Organization.
    [FR Doc. 2017-20958 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0818; Airspace Docket No. 17-AGL-19] Proposed Revocation of Class E Airspace; Pulaski, WI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to remove Class E airspace extending upward from 700 feet above the surface at Carter Airport, Pulaski, WI. The FAA is proposing this action due to the cancellation of the instrument procedures into the airport, resulting in the airport no longer qualifying for controlled airspace.

    DATES:

    Comments must be received on or before November 16, 2017.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2017-0818; Airspace Docket No. 17-AGL-19, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would remove Class E airspace extending upward from 700 feet above the surface at Carter Airport, Pulaski, WI.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0818/Airspace Docket No. 17-AGL-19.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by removing the Class E airspace area extending upward from 700 feet above the surface within a 6.9-mile radius of Carter Airport, Pulaski, WI.

    This action is necessary due to the cancellation of the instrument procedures at Carter Airport. The removal of these procedures would result in the airport no longer qualifying for controlled airspace.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    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 will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL WI E5 Pulaski, WI [Removed] Issued in Fort Worth, Texas, on September 25, 2017. Wayne Eckenrode, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2017-20959 Filed 9-29-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Office of the Secretary of Transportation 14 CFR Chapters I, II, and III 23 CFR Chapters I, II, and III 46 CFR Chapter II 48 CFR Chapter 12 49 CFR Chapters I, II, III, V, VI, VII, VIII, X, and XI [Docket No. DOT-OST-2017-0069] Notification of Regulatory Review AGENCY:

    Office of the Secretary of Transportation (OST); U.S. Department of Transportation (DOT).

    ACTION:

    Regulatory review.

    SUMMARY:

    The U.S. Department of Transportation (Department or DOT) is reviewing its existing regulations and other agency actions to evaluate their continued necessity, determine whether they are crafted effectively to solve current problems, and evaluate whether they potentially burden the development or use of domestically produced energy resources. As part of these reviews, the Department invites the public to provide input on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. The Department may also hold a public meeting to discuss and consider comments from members of the public.

    DATES:

    Comments should be received on or before November 1, 2017. Late-filed comments will be considered to the extent practicable.

    ADDRESSES:

    You may file comments identified by the docket number DOT-OST-2017-0069 by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting comments.

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Room W12-140, Washington, DC 20590-0001.

    Hand Delivery or Courier: The Docket Management Facility is located on the West Building, Ground Floor, of the U.S. Department of Transportation, 1200 New Jersey Ave. SE., Room W12-140, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: 202-493-2251.

    Instructions: You must include the agency name and the Docket Number DOT-OST-2017-0069 at the beginning of your comment. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov or to the street address listed above. Follow the online instructions for accessing the docket.

    FOR FURTHER INFORMATION CONTACT:

    Jonathan Moss, Assistant General Counsel for Regulation, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, 202-366-4723 (phone), [email protected] (email) or Barbara McCann, Director, Office of Policy Development, Strategic Planning and Performance, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, 202-366-8016 (phone), [email protected]

    SUPPLEMENTARY INFORMATION:

    DOT Responsibilities for Regulations and Transportation Infrastructure

    The Department carries out its responsibilities through the Office of the Secretary (OST) and the following operating administrations (OAs): Federal Aviation Administration (FAA); Federal Highway Administration (FHWA); Federal Motor Carrier Safety Administration (FMCSA); Federal Railroad Administration (FRA); Federal Transit Administration (FTA); Maritime Administration (MARAD); National Highway Traffic Safety Administration (NHTSA); Pipeline and Hazardous Materials Safety Administration; (PHMSA); and St. Lawrence Seaway Development Corporation (SLSDC).

    DOT has statutory responsibility for a wide range of regulations. For example, DOT regulates safety in the aviation, motor carrier, railroad, motor vehicle, commercial space, transit, and pipeline transportation areas. The Department also regulates aviation consumer and economic issues, and provides financial assistance and writes the necessary implementing rules for programs involving highways, airports, mass transit, the maritime industry, railroads, and motor transportation and vehicle safety. Finally, DOT has responsibility for developing policies that implement a wide range of regulations that govern programs such as acquisition and grants management, access for people with disabilities, environmental protection, energy conservation, information technology, occupational safety and health, property asset management, seismic safety, security, and the use of aircraft and vehicles.

    Review of Regulations and Other Agency Actions

    Improvement of regulations is a continuous focus for the Department. There should be no more regulations than necessary, and those regulations should be straightforward, clear, and designed to minimize burdens. Further, DOT regulations and other agency actions should not unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources. Once issued, regulations and other agency actions should be reviewed periodically and revised to ensure that they continue to meet the needs for which they originally were designed, remain cost-effective and cost-justified. Further, regulations and other agency actions should promote clean and safe development of our Nation's vast energy resources, while avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.

    Accordingly, DOT regularly makes a conscientious effort to review its rules in accordance with the Department's 1979 Regulatory Policies and Procedures (44 FR 11034, Feb. 26, 1979), Executive Order (E.O.) 12866, E.O. 13563, and section 610 of the Regulatory Flexibility Act. The Department follows a repeating 10-year plan for the review of existing regulations, which is set forth in the Department's semi-annual Regulatory Agenda published in the Federal Register (see Appendix D to “Department Regulatory Agenda; Semiannual Summary” most recently issued on July 20, 2017). The reviews conducted under this plan comply with section 610 of the Regulatory Flexibility Act. OST and OAs other than the Saint Lawrence Seaway Development Corporation (SLSDC) have also elected to use this repeating 10-year plan to comply with the review requirements of the Department's Regulatory Policies and Procedures and E.O. 12866. SLSDC does not follow this practice because the agency is responsible for only a small number of regulations that were reviewed in 2009. Generally, the OAs have divided their rules into 10 different groups and analyze one group each year, then start over again. The Department regularly invites public participation in those reviews and seeks general suggestions on rules that it should revise or revoke. In the fall Regulatory Agenda, the Department publishes information on the results of the examinations completed during the previous year.

    Public Participation and Request for Comments

    Through three new E.O.s, President Trump directed agencies to further scrutinize their regulations and other agency actions. On January 30, 2017, President Trump signed E.O. 13771, Reducing Regulation and Controlling Regulatory Costs. Under Section 2(a) of the E.O., unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it must identify at least two existing regulations to be repealed.

    On February 24, 2017, President Trump signed E.O. 13777, Enforcing the Regulatory Reform Agenda. Under this Executive Order, each agency must establish a Regulatory Reform Task Force (RRTF) to evaluate existing regulations, and make recommendations for their repeal, replacement, or modification. As part of this process, the Department is directed to seek input/assistance from entities significantly affected by its regulations.

    On March 28, 2017, President Trump signed E.O. 13783, Promoting Energy Independence and Economic Growth. Section 2 of E.O. 13783 requires agencies to review all existing regulations, orders, guidance documents, policies, and other similar agency actions that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. This review will result in a final report that describes the result of the required review and includes specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production. E.O. 13783 also requires that, for any specific recommendations made in the final report, the agency suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding those actions, as appropriate and consistent with law.

    To respond to the President's direction in E.O. 13771, E.O. 13777, and E.O. 13783, as well as other legal authorities, the Department seeks written input from the public on existing regulations and other agency actions that are good candidates for repeal, replacement, or modification. In addition to accepting written comments, the Department may hold a public meeting. In recognition of the fact that safety is the Department's highest priority, the Department seeks comments on those existing regulations and other agency actions that may be repealed, replaced, or modified without compromising safety. The public is encouraged to identify regulations that (a) eliminate jobs or inhibit job creation; (b) are outdated, unnecessary, or ineffective; (c) impose costs that exceed benefits; (d) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (e) could be revised to use performance standards in lieu of design standards, or (f) potentially burden the development or use of domestically produced energy resources. The Department welcomes public comment on any and all of its regulations and other agency actions, although rules that impose significant costs on the public may provide greater opportunity for identifying and alleviating unnecessary burdens. For convenience, a list of economically significant rulemakings issued over the past several years is included in Appendix A.

    When identifying regulations and other agency actions appropriate for suspension, repeal, replacement, or modification, the public is encouraged to consider whether there is an opportunity to: (1) Simplify or clarify language in a regulation; (2) eliminate overlapping and duplicative regulations, including those that require repetitive filings for conducting business with the Department; (3) eliminate conflicts and inconsistencies in the Department's regulations and those of its agencies; (4) eliminate conflicts and inconsistencies with the rules of other Federal agencies or state, local, or tribal governments, (5) determine if matters in an existing regulation could be better handled fully by the states without Federal regulations; (6) revise regulations in which technology, economic conditions or other factors have changed in the area affected by the regulation; (7) reconsider regulations that were based on scientific or other information that has been discredited or superseded; (8) reconsider the burdens imposed on those directly or indirectly affected by the regulation and, specifically, those that are costly when compared to the benefit provided; (9) reconsider burdens imposed on small entities; (10) foster innovation by revising regulations to include performance standards for regulatory compliance; and (11) reduce burdens by incorporating international or industry consensus standards into regulations.

    Content of Comments

    The Department will review all comments submitted timely to the docket associated with this regulatory review, DOT-OST-2017-0069. To maximize the usefulness of comments, the Department encourages commenters to provide the following information:

    1. Specific reference. A specific reference to the policy statement, guidance document, regulation, or other agency action that imposes the burden that the comment discusses. This should be a citation to the Code of Federal Regulations, a guidance document number, or an Internet link. A specific reference will assist the Department in identifying the requirement, the original source of the requirement, and relevant documentation that may describe the history and effects of the requirement.

    2. Description of burden. A description of the burden that the identified policy statement, guidance document, regulation, or other agency action imposes. A comment that describes how the policy statement, guidance document, regulation, or other agency action is burdensome is more useful than a comment that merely asserts that it is burdensome. Comments that reflect experience with the requirement and provide data describing that experience are more credible than comments that are not tied to direct experience. Verifiable, quantifiable data describing burdens are more useful than anecdotal descriptions.

    3. Description of less burdensome alternatives. If the commenter believes that the objective that motivated the policy statement, guidance document, regulation, or other agency action may be achieved using a less burdensome alternative, the commenter should describe that alternative in detail. Likewise, if the commenter believes that there is not a less burdensome alternative or there is not a legitimate objective motivating the requirement, then that should be explained in the comment.

    4. Examples of affected entities or projects. Examples of entities that are, have been, or will be negatively affected by the identified policy statement, guidance document, regulation, or other agency action and examples of entities that will benefit it the requirement is removed or revised. A comment listing specific entities is more useful because it will assist the Department in investigating the burden and how it may be most effectively addressed.

    Scope of Comments

    The Department is interested in comments on any DOT regulation or other agency action that imposes unjustifiable burdens on regulated entities or on the use or production of domestic energy resources.

    Issued on: September 26, 2017. James C. Owens, Acting General Counsel. Appendix A—DOT Economically Significant Rulemakings

    1. The FRA's final rule on Electronically Controlled Pneumatic Brake Systems (RIN: 2130-AC03) (published on October 16, 2008, at 73 FR 61511) (annualized costs of $138 million);

    2. The PHMSA's final rule on Pipeline Safety: Standards for Increasing the Maximum Allowable Operating Pressure for Gas Transmission Pipelines (RIN: 2137-AE25) (published on October 17, 2008, at 73 FR 62147) (annualized costs of $95 million);

    3. The NHTSA's final rule on Average Fuel Economy Standards Passenger Cars and Light Trucks Model Year 2011 (RIN: 2127-AK29) (published on March 30, 2009, at 74 FR 14195) (annualized costs of $1.46 billion);

    4. The NHTSA's final rule on the Federal Motor Vehicle Safety Standards; Roof Crush Resistance; Phase-In Reporting Requirements (RIN: 2127-AG51) (published on May 12, 2009, at 74 FR 22347) (annualized costs of $0.8-1.3 billion);

    5. The PHMSA's final rule on Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines (RIN: 2137-AE15) (published on December 4, 2009, at 74 FR 63905) (annualized costs of $95 million);

    6. The NHTSA's final rule on Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards (RIN: 2127-AK50) (published on May 7, 2010, at 75 FR 25323) (annualized costs of approximately $10 billion);

    7. The FAA's final rule on Automatic Dependent Surveillance—Broadcast Equipage Mandate to Support Air Traffic Control Service (RIN: 2120-AI92) (published May 28, 2010, at 75 FR 30159) (annualized costs of $216 million);

    8. The FHWA's final rule on Real-Time System Management Information Program (RIN: 2125-AF19) (published on November 9, 2010, at 75 FR 68418) (annualized costs of $135 million);

    9. The NHTSA's final rule on Federal Motor Vehicle Safety Standards, Ejection Mitigation; Phase-In Reporting Requirements; Incorporation by Reference (RIN: 2127-AK23) (published on January 19, 2011, at 76 FR 3211) (annualized costs of $2.3 billion);

    10. The FRA's final rule on Positive Train Control Systems (RRR) (RIN: 2130-AC27) (published on May 14, 2012, at 77 FR 28285) (annualized costs of $2 million);

    11. The NHTSA's final rule on 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards (RIN: 2127-AK79) (published on October 15, 2012, at 77 FR 62623) (annualized costs of $2.2-3.6 billion);

    12. The FTA's final rule on Major Capital Investment Projects—New/Small Starts (RIN: 2132-AB02) (published on January 9, 2013, at 78 FR 1991) (annualized costs of $300,000);

    13. The NHTSA's final rule on Federal Motor Vehicle Safety Standards; Occupant Crash Protection (RIN: 2127-AK56) (published on November 25, 2013, at 78 FR 70415) (annualized costs of $6 million);

    14. The FMCSA's final rule on Inspection, Repair, and Maintenance; Driver-Vehicle Inspection Report (DVIR) (RIN: 2126-AB46) (published on December 18, 2014, at 79 FR 75437) (annualized cost-savings of $1.7 billion);

    15. The NHTSA's final rule on Federal Motor Vehicle Safety Standards; Electronic Stability Control Systems for Heavy Vehicles (RIN: 2127-AK97) (published on June 23, 2015, at 80 FR 36049) (annualized costs of $46 million);

    16. The PHMSA's final rule on Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (RIN: 2137-AE91) (published on July 7, 2015, at 80 FR 26643) (annualized costs of $234 million);

    17. The FMCSA's final rule on Electronic Logging Devices and Hours of Service Supporting Documents (RIN: 2126-AB20) (published on December 16, 2015, at 80 FR 78291) (annualized costs of $1.8 billion);

    18. The NHTSA's final rule on Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2 (RIN: 2127-AL52) (published on October 25, 2016, at 81 FR 73478) (annualized costs of $4 billion);

    19. The FMCSA's final rule on Commercial Driver's License Drug and Alcohol Clearinghouse (RIN: 2126-AB18) (published on December 5, 2016, at 81 FR 87686) (annualized costs of $154 million); and

    20. The FMCSA's final rule on Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators (RIN: 2126-AB66) (published on December 8, 2016, at 81 FR 88732) (annualized costs of $368 million).

    [FR Doc. 2017-21101 Filed 9-29-17; 8:45 am] BILLING CODE 4910-9X-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 [Docket Nos. FDA-2012-N-1210 and FDA-2004-N-0258] RIN 0910-ZA49 Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Proposed Extension of Compliance Dates AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is proposing to extend the compliance dates by approximately 1.5 years for the final rules providing updated nutrition information on the label of food, including dietary supplements; defining a single-serving container; requiring dual-column labeling for certain containers; updating, modifying, and establishing certain reference amounts customarily consumed (RACCs); and amending the label serving size for breath mints. The final rules appeared in the Federal Register of May 27, 2016. We are taking this action because, after careful consideration, we have tentatively determined that additional time would help ensure that all manufacturers covered by the final rules have guidance from FDA to address, for example, certain technical questions we received after publication of the final rules, and that they are able to complete and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the final rules.

    DATES:

    Submit either electronic or written comments on the proposed rule by November 1, 2017.

    ADDRESSES:

    You may submit comments on the extension of the compliance period as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 1, 2017. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of November 1, 2017. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket Nos. FDA-2012-N-1210 and FDA-2004-N-0258 for “Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance Date.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Paula Trumbo, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2579.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Description of the Proposed Rule III. Proposed Compliance Dates IV. Economic Analysis of Impacts V. Analysis of Environmental Impact VI. Paperwork Reduction Act of 1995 VII. Federalism VIII. References I. Background

    In the Federal Register of May 27, 2016 (81 FR 33742 and 81 FR 34000), we published two final rules entitled “Food Labeling: Revision of the Nutrition and Supplement Facts Labels” (the Nutrition Facts Label Final Rule) and “Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments” (the Serving Size Final Rule). The Nutrition Facts Label Final Rule revises the Nutrition Facts label by:

    • Removing the declaration of “Calories from fat” because current science supports a view that the type of fat is more relevant than overall total fat intake in increased risk of chronic diseases;

    • Requiring the declaration of the gram amount of “Added Sugars” in a serving of a product, establishing a Daily Reference Value (DRV), and requiring the percent Daily Value (DV) declaration for added sugars;

    • Changing “Sugars” to “Total Sugars” and requiring that “Includes ‘X’ g Added Sugars” be indented and declared directly below “Total Sugars” on the label;

    • Updating the list of vitamins and minerals of public health significance. For example, the Nutrition Facts Label Final Rule requires the declaration of vitamin D and potassium and permits, rather than requires, the declaration of vitamins A and C;

    • Updating certain reference values used in the declaration of percent DVs of nutrients on the Nutrition Facts and Supplement Facts labels;

    • Revising the format of the Nutrition Facts and Supplement Facts labels to increase the prominence of the term “Calories;”

    • Removing the requirement for the footnote table listing the reference values for certain nutrients for 2,000 and 2,500 calorie diets; and

    • Requiring the maintenance of records to support the declarations of certain nutrients under specified circumstances.

    The Serving Size Final Rule requires all containers, including containers of products with “large” RACCs (i.e., products with RACCs of at least 100 grams (g) or 100 milliliters (mL)), containing less than 200 percent of the RACC to be labeled as a single-serving container. Except for when certain exceptions apply, the Serving Size Final Rule further requires that containers and units that contain at least 200 percent and up to and including 300 percent of the RACC be labeled with a column of nutrition information within the Nutrition Facts label that lists the quantitative amounts and percent DVs for the entire container, in addition to the required column listing the quantitative amounts and percent DVs for a serving that is less than the entire container (i.e., the serving size derived from the RACC). The Serving Size Final Rule also updates, modifies, and establishes RACCs for certain foods and product categories.

    II. Description of the Proposed Rule

    We are proposing to extend the compliance date for manufacturers with $10 million or more in annual food sales in the final rules published on May 27, 2016, from July 26, 2018, to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales in the final rules published on May 27, 2016, from July 26, 2019, to January 1, 2021.

    We emphasize that this proposed rule would only extend the compliance dates. Therefore, comments to this proposed rule should pertain to the extension of the compliance dates only. We are proposing to extend the compliance dates for the Nutrition Facts Label Final Rule and the Serving Size Final Rule, consistent with our authority in sections 403(q) and 701(a) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 343(q) and 371(a), respectively).

    III. Proposed Compliance Dates

    This proposed rule would extend the compliance date for manufacturers with $10 million or more in annual food sales in the final rules published on May 27, 2016, from July 26, 2018, to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales in the final rules published on May 27, 2016, from July 26, 2019, to January 1, 2021. We are taking this action because, after careful consideration, we have tentatively determined that additional time would help ensure that all manufacturers covered by the rules have guidance from FDA to address, for example, certain technical questions we received after publication of the final rules (see Docket No. FDA-2016-D-4414 (pertaining to a draft guidance entitled “Questions and Answers on the Nutrition and Supplement Facts Labels Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals: Guidance for Industry”)), and that they are able to complete and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the rules. Companies and trade associations with members covered by the rules have informed us that they have significant concerns about their ability to update all their labels by the compliance dates due to issues regarding (among other things) the need for upgrades to labeling software, the need to obtain nutrition information from suppliers, the number of products that would need new labels, and a limited time for reformulation of products. Consequently, we are proposing to extend the compliance dates to provide more time to comply with the Nutrition Facts Label and the Serving Size Final Rules. We propose extending the compliance date by approximately 1.5 years for both categories of manufacturers as a means to balance the importance of ensuring that industry has sufficient time to comply with complex new requirements, and the importance of decreasing costs, against the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace.

    We are taking this action consistent with Executive Orders 13771 and 13563 and in response to the continued concern that companies and trade associations have shared with us regarding the time needed for implementation of the final rules and the need for FDA to provide further guidance to manufacturers subject to the final rules. Consistent with the policies set forth in these executive orders with respect to reducing burdens, reducing costs, maintaining flexibility, and improving effectiveness, we are therefore proposing to extend the compliance date for manufacturers with $10 million or more in annual food sales to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales to January 1, 2021.

    Our goal is to complete this rulemaking as quickly as possible. However, we are aware that firms are working under the current compliance dates to come into compliance. Pending completion of this rulemaking, we intend to exercise enforcement discretion with respect to the current July 26, 2018, and July 26, 2019, compliance dates.

    IV. Economic Analysis of Impacts

    We have examined the impacts of this proposed rule under Executive Order 12866, Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” We believe that this proposed rule is a significant regulatory action as defined by Executive Order 12866.

    Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an Agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the Agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. This proposed rule is expected to be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities when “the agency publishes a general notice of proposed rulemaking” (5 U.S.C. 601(2)). We have analyzed the proposed rule under the Regulatory Flexibility Act and propose to certify that, because the proposed rule only would extend the compliance dates for the Nutrition Facts Label and Serving Size Final Rules, the proposed rule would not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the 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 one year.” The current threshold after adjustment for inflation is $148 million, using the 2016 Implicit Price Deflator for the Gross Domestic Product. We have determined that the proposed rule would not result in any expenditure by industry in any year that meets or exceeds this amount.

    The principal benefit of this proposed rule to extend the compliance dates is the reduction in the costs to industry of meeting the compliance dates of the Nutrition Facts Label Final Rule and the Serving Size Final Rule. This reduction in costs can be attributed to a reduction in the relabeling and reformulation costs of the Nutrition Facts Label and Serving Size Final Rules. We estimate that, at the mean, the present value of the benefits (i.e., cost savings) of this proposed rule to extend the compliance dates over the next 20 years is $1.0 billion using either a 3 percent or 7 percent discount rate (2016$). This is illustrated in table 1. Extending the compliance dates by approximately 1.5 years would reduce the estimated benefits of the Nutrition Facts Label and Serving Size Final Rules because it would delay the realization by consumers of the full annual welfare gains of the Nutrition Facts Label and Serving Size Final Rules. More specifically, an extension of the compliance dates would delay the incorporation of the provisions of the Nutrition Facts Label and Serving Size Final Rules by food manufacturers into their products. We estimate that, at the mean, the present value of the forgone benefits of this proposed rule to extend the compliance dates over the next 20 years is $0.9 billion using either a 3 percent or 7 percent discount rate (2016$). This is also presented in table 1. We estimate that, at the mean, the present value of the net benefits (that is, cost savings minus forgone benefits) of this proposed rule to extend the compliance dates over the next 20 years is $0.1 billion using either a 3 percent or 7 percent discount rate (2016$). This is shown in table 1.

    Table 1—Summary of the Cost Savings to Industry and Foregone Benefits to Consumers of This Proposed Rule To Extend the Compliance Dates [In billions of 2016] Discount rate (percent) Cost savings Foregone
  • benefits
  • Net benefits (cost
  • savings−
  • foregone
  • benefits)
  • Present Value 3 $1.0 $0.9 $0.1 7 1.0 0.9 0.1 Annualized Amount 3 0.07 0.06 0.01 7 0.09 0.08 0.01 Notes: Cost savings to industry, foregone benefits to consumers, and net benefits reflect mean estimates. This proposed rule to extend the compliance dates would extend the compliance dates of the Nutrition Facts Label and Serving Size Final Rules by approximately 1.5 years. Annualized Amount = Amount/Annualizing Factor. 3 percent annualizing factor = 14.88. 7 percent annualizing factor = 10.59. The annualizing factors are calculated by summing the inverse of 1 plus the discount rate to the power of the year (t = 1 through t = 20).

    For purposes of this analysis, we use the same methodology for estimating costs and benefits that we used in the original Regulatory Impact Analysis for the Final Rules. We previously acknowledged potential shortcomings with that approach (see 2016 Regulatory Impact Analysis at 79 n.34) but have not received comments about ways to improve that analysis. We thus follow the same basic approach here.

    The full analysis of economic impacts is available in the docket for this proposed rule (Ref. 1) and at https://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses.

    V. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VI. Paperwork Reduction Act of 1995

    This proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VII. Federalism

    We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive Order requires Agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 403A of the FD&C Act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a) of the FD&C Act provides that: “* * * no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(4) any requirement for nutrition labeling of food that is not identical to the requirement of section 403(q) * * *.” The express preemption provision of section 403A(a) of the FD&C Act does not preempt any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food (section 6(c)(2) of the Nutrition Labeling and Education Act of 1990, Pub. L. 101-535, 104 Stat. 2353, 2364 (1990)). If this proposed rule is made final, the final rule would create requirements that fall within the scope of section 403A(a) of the FD&C Act.

    VIII. References

    The following reference is on display in the Dockets Management Staff (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the Web site addresses, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

    1. United States Department of Health and Human Services. United States Food and Drug Administration. Preliminary Regulatory Impact Analysis, Preliminary Regulatory Flexibility Analysis for Proposed Rule on “Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance Dates.” September 2017. Available from http://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses. Dated: September 26, 2017. Anna K. Abram, Deputy Commissioner for Policy, Planning, Legislation, and Analysis.
    [FR Doc. 2017-21019 Filed 9-29-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AQ06 Authority of Health Care Providers To Practice Telehealth AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) proposes to amend its medical regulations by standardizing the delivery of care by VA health care providers through telehealth. This rule would ensure that VA health care providers provide the same level of care to all beneficiaries, irrespective of the State or location in a State of the VA health care provider or the beneficiary. This proposed rule would achieve important Federal interests by increasing the availability of mental health, specialty, and general clinical care for all beneficiaries.

    DATES:

    Comments must be received on or before November 1, 2017.

    ADDRESSES:

    Written comments may be submitted through http://www.Regulations.gov by mail or hand-delivery to: Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026. (This is not a toll-free telephone number.) Comments should indicate that they are submitted in response to “RIN 2900-AQ06-Authority of Health Care Providers to Practice Telehealth.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free telephone number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Galpin, MD, Executive Director Telehealth Services, Veterans Health Administration Office of Connected Care, 810 Vermont Avenue NW., Washington, DC 20420. (404) 771-8794. (This is not a toll-free number.) [email protected].

    SUPPLEMENTARY INFORMATION:

    Section 7301 of title 38, United States Code (U.S.C.), establishes the general functions of the Veterans Health Administration (VHA) within VA, and establishes that its primary function is to “provide a complete medical and hospital service for the medical care and treatment of veterans, as provided in this title and in regulations prescribed by the Secretary [of Veterans Affairs (Secretary)] pursuant to this title.” 38 U.S.C. 7301(b). In carrying out this function, VHA must ensure that patient care is appropriate and safe and its health care providers meet or exceed generally accepted professional standards for patient care. In addition, because VA is a national health care provider, VHA must ensure that beneficiaries receive the same high level of care and access to care no matter where, in a State, a beneficiary or health care provider is located at the time the health care is provided.

    The Secretary is responsible for the proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department, including agency personnel and management matters. See 38 U.S.C. 303. To this end, Congress authorized the Secretary “to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.” 38 U.S.C. 501(a). The Under Secretary for Health is directly responsible to the Secretary for the operation of VHA. 38 U.S.C. 305(b). Unless specifically otherwise provided, the Under Secretary for Health, as the head of VHA, is authorized to “prescribe all regulations necessary to the administration of the Veterans Health Administration,” subject to the approval of the Secretary. 38 U.S.C. 7304.

    To allow VA to carry out its medical care mission, Congress also established a comprehensive personnel system for certain VA health care providers, independent of the civil service rules. See 38 U.S.C. chapters 73-74. Congress granted the Secretary express statutory authority to establish the qualifications for VA's health care providers, determine the hours and conditions of employment, take disciplinary action against employees, and otherwise regulate the professional activities of those individuals. 38 U.S.C. 7401-7464.

    To be eligible for appointment as a VA employee in a health care position covered by section 7402(b) of title 38, U.S.C. (other than a medical facility Director appointed under section 7402(b)(4)), a person must, among other requirements, be licensed, registered, or certified to practice his or her profession in a State. The standards prescribed in section 7402(b) establish only the basic qualifications necessary “[t]o be eligible for appointment” and do not limit the Secretary or Under Secretary for Health from establishing other qualifications for appointment, or additional rules governing such personnel. In particular, section 7403(a)(1) provides that appointments under chapter 74 “may be made only after qualifications have been established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements.” Such authority is necessary to ensure the viability of our national health care system, which is designed to ensure the well-being of those who have “borne the battle.”

    Just as it is critical to ensure there are qualified health care providers on-site at all VA medical facilities, VA must ensure that all beneficiaries, specifically including beneficiaries in remote, rural, or medically underserved areas, have the greatest possible access to mental health care, specialty care, and general clinical care. Thus, VA has developed a telehealth program as a modern, beneficiary- and family-centered health care delivery model that leverages information and telecommunication technologies to connect beneficiaries with health care providers, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located at the time the health care is provided. Telehealth enhances VA's capacity to deliver essential and critical health care services to beneficiaries located in areas where health care providers may be unavailable or to beneficiaries who may be unable to travel to the nearest VA medical facility for care because of their medical conditions. Telehealth increases the accessibility of VA health care, bringing VA medical services to locations convenient for beneficiaries, including clinics in remote communities and beneficiaries' homes. By providing health care services by telehealth from one State to a beneficiary located in another State or within the same State, whether that beneficiary is located at a VA medical facility or in his or her own home, VA can use its limited health care resources most efficiently.

    Congress has required other Departments and agencies to conduct telehealth programs. See, e.g., Public Law 114-328, sec. 718(a)(1) (“the Secretary of Defense shall incorporate, throughout the direct care and purchased care components of the military health system, the use of telehealth services”). While VA does not have an analogous mandate, several statutes confirm that Congress intends for VA to operate a national health care system for beneficiaries including through telehealth. Congress has required the Secretary “to carry out an initiative of teleconsultation for the provision of remote mental health and traumatic brain injury assessments in facilities of the Department that are not otherwise able to provide such assessments without contracting with third-party providers or reimbursing providers through a fee basis system.” 38 U.S.C. 1709A(a)(1). Congress has authorized the Secretary to “waive the imposition or collection of copayments for telehealth and telemedicine visits of veterans under the laws administered by the Secretary.” 38 U.S.C. 1722B. And, as recently as December 2016, Congress required VA to initiate a pilot program to provide veterans a self-scheduling, online appointment system; this pilot program must “support appointments for the provision of health care regardless of whether such care is provided in person or through telehealth services.” Public Law 114-286, sec. 3(a)(2).

    As noted above, VA only has legal authority to hire health care providers who are licensed, registered, or certified in a State. To continue practicing in VA, providers must maintain those credentials in accordance with their health care specialty as stated in 38 U.S.C. 7402(b).

    In an effort to furnish care to all beneficiaries and use its resources most efficiently, VA needs to operate its telehealth program with health care providers who will provide services via telehealth to beneficiaries in States in which they are not licensed, registered, certified, or located, or where they are not authorized to furnish care using telehealth. Currently, doing so may jeopardize these providers' credentials, including fines and imprisonment for unauthorized practice of medicine, because of conflicts between VA's need to provide telehealth across the VA system and some States' laws or licensure, registration, certification, or other requirements that restrict or limit the practice of telehealth. A number of States have already enacted legislation or regulations that restrict the practice of interstate telehealth, as discussed below in the Administrative Procedure Act section.

    To protect VA health care providers from potential adverse actions by States, many VA medical centers (VAMC) are currently not expanding some critical telehealth services if the health care service is provided outside Federal property (such as when the beneficiary is receiving telehealth care in his or her home or when the VA provider is delivering telehealth care from his or her home) or across State lines. In addition, many individual VA health care providers refuse to practice telehealth because of concerns over States taking action against the health care provider's State license, State laws, or the shifting regulatory landscape that creates legal ambiguity and unacceptable State licensing risk. The current disparities between VA health care practice in telehealth and State laws have effectively stopped or inhibited VA's expansion of telehealth services to certain locations, thereby reducing the availability and accessibility of care for beneficiaries.

    This proposed rulemaking would clarify that VA health care providers may exercise their authority to provide care through the use of telehealth, notwithstanding any State laws, rules, or licensure, registration, or certification requirements to the contrary. In so doing, VA would exercise Federal preemption of State licensure, registration, and certification laws, rules, regulations, or requirements to the extent such State laws conflict with the ability of VA health care providers to engage in the practice of telehealth while acting within the scope of their VA employment. Preemption would be the minimum necessary action for VA to furnish effectively telehealth services because it would be impractical for VA to lobby each State to remove its restrictions that impair VA's ability to furnish telehealth services to beneficiaries and then wait for the State to implement appropriate changes. That process would delay the growth of telehealth services in VA, thereby delaying delivery of health care to beneficiaries. It would be costly and time-consuming for VA and would not guarantee a successful result. We note that, apart from the limited action of authorizing telehealth across and within jurisdictions in furtherance of important Federal interests, this rulemaking would not expand the scope of practice for VA health care providers beyond what is statutorily defined in the laws and practice acts of the health care provider's state of licensure. That is, this rulemaking does not affect VA's existing requirement that all VA health care providers adhere to restrictions imposed by their State license, registration, or certification regarding the professional's authority to prescribe and administer controlled substances.

    As VA's telehealth program expands and successfully provides increased access to high quality health care to all beneficiaries, it is increasingly important for VA health care providers to be able to practice telehealth across State lines and within states free of restrictions imposed by State law or regulations, including conditions attached to their State licenses. For fiscal year (FY) 2016, VA health care providers had 2.17 million telehealth episodes of health care (meaning a clinical encounter or a period of time in which care was monitored), which served over 702,000 veterans (approximately 12 percent of the total patient population), with 45 percent of those veterans living in rural communities. By increasing VA's capabilities to provide telehealth services, VA would be able to expand these services.

    Eliminating veteran suicide and providing access to mental health care is VA's number one clinical priority, and this proposed rulemaking would improve VA's ability to reach its most vulnerable beneficiaries. Some mental health patients suffer from conditions, such as anxiety and agoraphobia, which make it incredibly difficult to leave their houses to receive necessary mental and general health care. Furthermore, some of our beneficiaries live in areas that are Federally designated as mental health provider shortage areas. Therefore, even if beneficiaries feel comfortable leaving their home to seek care, there may not be sufficient mental health care providers at a VA medical facility or in the community to address their health care needs. Given the difficulty in providing mental health care under these circumstances, the most practical way to consistently provide all VA beneficiaries with access to high-quality mental health care is through the telehealth program. The data collected in FY 2016 demonstrates that telehealth, particularly in the mental health context, improves patient care and improves patient outcomes. In FY 2016, there was a 31 percent decrease in VA hospital admissions for beneficiaries enrolled in the Home Telehealth monitoring program for non-institutional care needs and chronic care management. Also, beneficiaries who received mental health services through synchronous video telehealth in FY 2016 saw a reduction in the number of acute psychiatric VA bed days of care by 39 percent.

    In addition, monitoring general medical conditions in the beneficiaries' home empowers beneficiaries to take a more active role in their overall health care without adding the stress of commuting to a medical facility to receive the same type of care. Telehealth is particularly important for beneficiaries with limited mobility, or for whom travel to a health care provider would be a personal hardship. For example, beneficiaries who have conditions such as a history of stroke, traumatic brain injuries, seizure disorders, and amyotrophic lateral sclerosis (ALS) may find it difficult to leave their home in order to receive much-needed health care. VA also is able to provide health care services to more beneficiaries in localities that are more convenient for them, which may lead to the beneficiary taking a more proactive approach to their care, thereby increasing the likelihood of positive clinical outcomes.

    Other benefits of expanding VA telehealth include serving as a recruitment incentive for VA health care providers and allowing VA to address recruitment shortages in various parts of the country. For example, the Charleston, South Carolina VAMC serves as one of the VA's National TeleMental Health Hubs and provides mental health services to beneficiaries across eight States with a team of approximately 30 full-time health care providers. There are currently multiple vacancies for TeleMental Health psychiatrists at the Charleston Hub, and in the past six months, applicants have only expressed interest in telework positions. Several VA health care providers have also left their positions within the past year because they were seeking telework positions. If the health care providers were able to practice telehealth while working from VA-approved alternate worksites and still deliver the telehealth services where needed, the Charleston TeleMental Hub would be able to fill its vacancies and retain needed health care professionals.

    These are just some examples of how expanding telehealth, and thereby expanding the locations where VA provides health care services, would allow VA to reach underserved areas or beneficiaries who are unable to travel, improving health outcomes for beneficiaries and allowing VA to better utilize its health care resources. For these reasons, VA proposes to establish a new regulation, 38 CFR 17.417 that would authorize VA health care providers to treat beneficiaries through telehealth irrespective of the location, in a State, of the VA health care provider or the beneficiary.

    Proposed paragraph (a) of § 17.417 would contain the definitions that would apply to the new section. We would define the term “beneficiary” to mean “a veteran and any other individual receiving care under title 38 of the United States Code.” We would use this definition because VA provides health care to veterans, certain family members of veterans, servicemembers, and others. This is VA's standard use of this term.

    We propose to define the term “health care provider” consistent with the qualifications of appointees within the Veterans Health Administration under 38 U.S.C. 7402(b). We would incorporate the licensure, registration, or certification requirement from section 7402(b) and would state that health care providers must maintain “credentials (e.g., license, registration, or certification) in accordance with the requirements of their health care specialty as identified under 38 U.S.C. 7402(b).” This standard would ensure that VA health care providers are qualified to practice their individual health care specialty and also ensure patient safety. A health care provider as defined in this regulation cannot be a VA-contracted employee. Contract health care providers would be required to adhere to their individual State license, registration, or certification requirements.

    We propose to define the term “State” consistent with 38 U.S.C. 101(20), and including political subdivisions of such States. We include political subdivisions in the definition because subdivisions of a State are granted legal authority from the State itself, so it would make sense to include entities created by a State, or authorized by a State in the definition.

    Last, in proposed paragraph (a)(4) of § 17.417, we would define the term “telehealth” to mean “the use of electronic information or telecommunications technologies to support clinical health care, patient and professional health-related education, public health, and health administration.” This definition would be consistent with other statutory definitions, such as a provision in the Public Health Service Act regarding mental health services delivered by telehealth in 42 U.S.C. 254c-16(a)(4).

    As we have mentioned in this rulemaking, currently, individual States can restrict and limit where a health care provider can practice under a State license, certification, or registration. This proposed rulemaking would authorize VA health care providers to furnish telehealth services without regard to any State restriction that would prevent the provider from delivering care via telehealth. Proposed paragraph (b)(1) of § 17.417 would state that VA health care providers could provide “telehealth services, within their scope of practice and in accordance with privileges granted to them by the Department, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located.” This would authorize VA health care providers to furnish care, consistent with their employment obligations, through telehealth, without fear of adverse action by any State. A health care provider's practice within VA, however, would continue to be subject to the limitations “imposed by the Controlled Substances Act, 21 U.S.C. 801 et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy.” This would ensure that providers would still be in compliance with critical laws concerning the prescribing and administering of controlled substances. We would also state that this rulemaking “only grants health care providers the ability to practice telehealth within the scope of their VA employment and does not otherwise grant health care providers additional authorities that go beyond the scope of the health care providers' State license, registration, or certification.”

    In proposed paragraph (b)(2)(i) through (vii) of § 17.417, we would provide situations where a health care provider's practice of telehealth could be inconsistent with a State law or State license, registration, or certification requirements while engaging in the practice of telehealth in VA. These examples would be consistent with the reasons VA is proposing to take this rulemaking action, as described above.

    Proposed paragraph (c) would expressly state the intended preemptive effect of § 17.417, to ensure that conflicting State and local laws, rules, regulations, and requirements related to health care providers' practice would have no force or effect when such providers are practicing telehealth while working within the scope of their VA employment. In circumstances where there is a conflict between Federal and State law, Federal law would prevail in accordance with Article VI, clause 2, of the U.S. Constitution (Supremacy Clause).

    Executive Order 13132, Federalism

    Section 4 of Executive Order 13132 (Federalism) requires an agency that is publishing a regulation that preempts State law to follow certain procedures. Section 4(b) requires agencies to “construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.” Section 4(c) states “Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.” Section 4(d) requires that when an agency “foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.” Section 4(e) requires that when an agency “proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” Section 6(c) states that “To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications and that preempts State law, unless the agency, prior to the formal promulgation of the regulation, (1) consulted with State and local officials early in the process of developing the proposed regulation; (2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and (3) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.”

    Because this proposed rule would preempt certain State laws, VA consulted with State officials in compliance with sections 4(d) and (e), as well as section 6(c) of Executive Order 13132. VA sent a letter to the National Governor's Association, Association of State and Provincial Psychology, National Council of State Boards of Nursing, Federation of State Medical Boards, Association of Social Work Boards, and National Association of State Directors of Veterans Affairs on July 12, 2017, to state VA's intent to allow VA health care providers to practice telehealth irrespective of the location of the health care provider or beneficiary in any State and regardless of State telehealth restrictions. In addition, the Director of the Federation of State Medical Boards solicited comments and input from the nation's State Medical Boards. The Wisconsin Medical Examining Board unanimously passed a motion in support of the rule. The Rhode Island Board of Medical Licensure & Discipline (BMLD) responded to our letter by stating that BMLD considers physicians employed by VA to be exempt from license requirements as long as such physician maintains a valid license in another U.S. jurisdiction. BMLD also indicated that the exemption does not necessarily extend to prescribing controlled substances without an appropriate DEA registration. In response to this caveat, we have stated in this proposed rule that, if finalized, VA health care providers would be subject to “the limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy.” The State of Utah Department of Commerce also stated that the Utah Occupations and Professions Licensing Act exempts from licensure requirements in Utah physicians, physician assistants, advanced practice nurses, psychologists or other health care provider who provide telehealth services as part of their VA employment as long as such health care provider is licensed in any State. Utah supports VA efforts to enhance telehealth services to all veterans. The Florida Board of Medicine stated that Florida does not prohibit the practice of telehealth except in certain circumstances and provided as an example that an in-person examination is required each time a physician issues a certification for medical marijuana. This proposed rule would supersede any State requirement regarding the practice of telehealth, such as the in-person examination requirement in Florida, and would maintain the restrictions imposed by Federal law and policy regarding the prescription of controlled substances. The North Carolina Medical Board recognizes the shortage of psychiatric care in rural and medically underserved communities and supports VA's initiative.

    The President of the National Association of State Directors of Veterans Affairs (NASDVA) sent an email to all of its State directors informing the directors of the association's intent to fully support VA's initiative. The NASDVA also formally responded to our letter, which fully supports VA's plans to amend its regulations and enhance access to health care via telehealth services. The National Council of State Boards of Nursing (NCSBN) fully supports VA's initiative for health care providers to deliver services via telehealth as long as such providers maintain a valid State license. However, the NCSBN does not support expanding VA State licensure exemptions to personal services contractors who practice telehealth. As stated in this proposed rulemaking, VA contractors would be excluded from providing telehealth services.

    The Chief Executive Officer of the Association of State and Provincial Psychology Boards formally responded to our letter and indicated that the proposed rule is in alignment with their current initiatives, specifically, Psychology Interjurisdictional Compact (PSYPACT) legislation, which has been adopted in three jurisdictions and is under active consideration in many more States. The PSYPACT legislation allows psychologists to provide telepsychology services across State lines via a compact without obtaining additional licenses. The Chief Executive Officer further stated that these services will be of assistance in addressing the delivery of telehealth services to veterans.

    The Veterans' Rural Health Advisory Committee (VRHAC) formally submitted a letter in support of the proposed rule. The letter stated that although VA leads the way in being the largest provider of telehealth in the country, there are barriers that affect many rural and highly rural areas, which includes limited internet or cellular access with sufficient bandwidth to support the required applications and also State legislations that restrict the practice of telehealth across State lines or into a veteran's home. The commenter strongly supports the proposed rule and further adds that expanding telehealth to rural and highly rural veterans across State lines would strengthen the delivery of care to enrolled veterans who live in rural and highly rural areas and supports the critical need for access to mental health care.

    The West Virginia Board of Osteopathic Medicine responded to VA's letter and indicated that West Virginia has made legislative changes to encourage physician participation in the VA system. The commenter stated that W.Va. Code 30-14-12c authorizes the West Virginia licensing boards to issue a license to a physician licensed in another State via reciprocity when the applicant presents proof that they are a VA employee working in a VA medical facility that is located in a county where a nursing home is operated by the West Virginia Department of Veteran's Assistance. Also, W.Va. Code 30-14-12d states the requirements for practicing telemedicine in West Virginia and defines that the practice of medicine occurs where the patient is located and defines what constitutes a physician-patient relationship. The commenter stated that the West Virginia Board of Osteopathic Medicine rarely knows when a VA physician is practicing in West Virginia without a West Virginia State license. However, the commenter cautioned that if a VA physician is licensed in West Virginia and does not follow state law and such action becomes known to the Board, the Board would file a complaint and investigate such action. The commenter stated that their telehealth law was written to protect patients and indicated that veterans deserved the same high quality care. As we have stated in this proposed rule, we are preempting State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

    The Pennsylvania State Board of Medicine responded to VA's letter and acknowledged the potential value for telehealth to expand access to health care, especially in rural and underserved areas. The commenter further stated that Pennsylvania law on the Interstate Medical Licensure Compact affirms that the practice of medicine occurs where the patient is located at the time of the health care encounter, which requires the physician to be under the jurisdiction of the State medical board where the patient is located. The commenter indicated that VA has oversight of its health care providers, however, the foundational principle that the physician should be licensed where the patient is located helps to assure the safety, quality, and accountability of the care provided. This proposed rule preempts State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

    The Michigan Department of Licensing and Regulatory Affairs responded to VA's letter by stating that Michigan law does not require a VA health care provider to hold a Michigan State license in the discharge of official duties. The commenter also stated that telehealth at a VA medical facility would be permitted. However, if the health care provider is delivering care to the beneficiary's home, such provider would need a Michigan State license. As we have indicated in this proposed rule, VA would preempt State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

    The Virginia Board of Medicine responded to VA's letter by stating that the Executive Committee of the Board met and supported the enhancement of access to care for veterans. The commenter stated that the proposed rule should benefit many beneficiaries that have little or no access to health care.

    The comments provided above will be placed on Regulations.gov for public inspection during the comment period. Stakeholders will also have an opportunity to provide comments during the notice and comment period.

    This proposed rule complies with Executive Order 13132 by (1) identifying where the exercise of State authority would directly conflict with the rule; (2) limiting preemption to these areas of conflict; (3) restricting preemption to the minimum level necessary to achieve the objectives of the statutes pursuant to which the rule is promulgated; (4) consulting with the external stakeholders listed in this rule; and (5) providing opportunity for all affected State and local officials to comment on this proposed rulemaking.

    Effect of Rulemaking

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

    Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

    Regulatory Flexibility Act

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

    Executive Orders 12866, 13563, and 13771

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

    OMB has determined that it is a significant regulatory action under Executive Order 12866 given the policy implications. In addition, under Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), this proposed rule is expected to be an E.O. 13771 deregulatory action, though VA is not able to quantify any cost savings associated with it. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published from FY 2004 Through Fiscal Year to Date.”

    Executive Order 12866 also directs agencies to “include a comment period of not less than 60 days.” Given the importance of telehealth in providing critical, and potentially lifesaving, access to health care for our beneficiaries, VA must act expeditiously, through this rulemaking, to ensure that it can expand its telehealth program. The primary barrier to the expansion of VA's telehealth program is that States' licensing boards have placed explicit restrictions on the use of telehealth in their States and have not made exceptions for VA providers, which ultimately inhibits VA providers from delivering VA health care to beneficiaries. Five of the States with the largest veteran populations, California, Texas, Florida, New York, and Ohio, have enacted laws and rules that restrict health care providers' ability to practice telehealth across State lines. See, 16 C.C.R. § 1815.5; Cal Bus & Prof Code §§ 2052, 2060; TX Occupation Code § 151.056; TX Admin Code, Title 22, § 172.12; FL Admin Code 64B8-9.0141; FL Admin Code 64B15-14.0081; NY Consolidated Law Service Public Health § 2805-u; OH Revised Code Annotated, Sec. 4731.296(C). As telehealth capabilities continue to expand, new State legislation and regulations across the country are enacted relating to the practice of telehealth. The possibility of sanctions to VA health care providers' State license, including fines and imprisonment for unauthorized practice of medicine has hindered VA's ability to expand its telehealth program. To protect VA health care providers from potential adverse actions by States, many VAMCs are currently not expanding some critical telehealth services if the health care service is provided outside Federal property (such as when the VA provider is delivering telehealth care from his or her home) or across State lines, or the care is delivered in a beneficiary's home. In addition many individual VA health care providers refuse to practice telehealth because of concerns over States taking action against their State license. This rule will supersede State restrictions on the practice of telehealth and allow VA health care providers to practice telehealth anywhere within a State (such as from the residence of the health care provider) and across State lines.

    In sum, providing a 60 day public comment period instead of a 30 day public comment period would be against public interest and the health and safety of VA beneficiaries because any restriction from a State or State licensing board on practicing telehealth, within the State or across State lines, could impede beneficiaries' access to health care, which will ultimately impact the health of the beneficiary. For the above reasons, the Secretary issues this rule with a 30 day public comment period. VA will consider and address comments that are received within 30 days of the date this proposed rule is published in the Federal Register.

    Unfunded Mandates

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

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.039 CHAMPVA; 64.040 VHA Inpatient Medicine; 64.041 VHA Outpatient Specialty Care; 64.042 VHA Inpatient Surgery; 64.043 VHA Mental Health Residential; 64.044 VHA Home Care; 64.045 VHA Outpatient Ancillary Services; 64.046 VHA Inpatient Psychiatry; 64.047 VHA Primary Care; 64.048 VHA Mental Health Clinics; 64.049 VHA Community Living Center; and 64.050 VHA Diagnostic Care.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on July 28, 2017 for publication.

    List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.

    Dated: September 26, 2017. Michael Shores, Director, Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, we propose to amend 38 CFR part 17 as follows:

    PART 17—MEDICAL 1. The authority citation for part 17 is amended by adding an entry for § 17.417 in numerical order to read in part as follows: Authority:

    38 U.S.C. 501, and as noted in specific sections.

    Section 17.417 also issued under 38 U.S.C. 1701 (note), 1709A, 1712A (note), 1722B, 7301, 7330A, 7401-7403; 7406 (note)).

    2. Revise the undesignated center heading immediately after § 17.412 to read as follows: Authority of Health Care Providers to Practice in the Department 3. Add § 17.417 to read as follows:
    § 17.417 Health care providers.

    (a) Definitions. The following definitions apply to this section.

    (1) Beneficiary. The term beneficiary means a veteran or any other individual receiving health care under title 38 of the United States Code.

    (2) Health care provider. The term health care provider means an individual who:

    (i) Is licensed, registered, or certified in a State to practice a health care specialty identified under 38 U.S.C. 7402(b);

    (ii) Is appointed to an occupation in the Veterans Health Administration that is listed in or authorized under 38 U.S.C. 7401(1) or (3);

    (iii) Maintains credentials (e.g., a license, registration, or certification) in accordance with the requirements of his or her medical specialty as identified under 38 U.S.C. 7402(b); and

    (iv) Is not a VA-contracted employee.

    (3) State. The term State means a State as defined in 38 U.S.C. 101(20), or a political subdivision of such a State.

    (4) Telehealth. The term telehealth means the use of electronic information or telecommunications technologies to support clinical health care, patient and professional health-related education, public health, and health administration.

    (b) Health care provider's practice. (1) Health care providers may provide telehealth services, within their scope of practice and in accordance with privileges granted to them by the Department, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located. Health care providers' practice is subject to the limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy. This section only grants health care providers the ability to practice telehealth within the scope of their VA employment and does not otherwise grant health care providers additional authorities that go beyond the scope of the health care providers' State license, registration, or certification.

    (2) Situations where a health care provider's VA practice of telehealth may be inconsistent with a State law or State license, registration, or certification requirements related to telehealth include when:

    (i) The beneficiary and the health care provider are physically located in different States during the episode of care;

    (ii) The beneficiary is receiving services in a State other than the health care provider's State of licensure, registration, or certification;

    (iii) The health care provider is delivering services in a State other than the health care provider's State of licensure, registration, or certification;

    (iv) The health care provider is delivering services either on or outside VA property;

    (v) The beneficiary is receiving services while she or he is located either on or outside VA property;

    (vi) The beneficiary has or has not previously been assessed, in person, by the health care provider; or

    (vii) Other State requirements would prevent or impede the practice of health care providers delivering telehealth to VA beneficiaries.

    (c) Preemption of State law. To achieve important Federal interests, including, but not limited to, the ability to provide the same complete medical and hospital service to beneficiaries in all States under 38 U.S.C. 7301, this section preempts conflicting State laws relating to the practice of health care providers when such health care providers are practicing telehealth within the scope of their VA employment. Any State law, rule, regulation or requirement pursuant to such law, is without any force or effect on, and State governments have no legal authority to enforce them in relation to, this section or decisions made by VA under this section.

    [FR Doc. 2017-20951 Filed 9-29-17; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2016-0406; FRL-9967-77-Region 6] Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque and Bernalillo County; Regional Haze Progress Report State Implementation Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve a revision to a State Implementation Plan (SIP) for the City of Albuquerque and Bernalillo County, New Mexico (the County) submitted by the Governor on June 24, 2016. The SIP revision addresses requirements of the Act and the EPA's rules that require the County to submit a periodic report assessing reasonable progress goals (RPGs) for regional haze with a determination of the adequacy of the existing regional haze SIP.

    DATES:

    Written comments must be received on or before November 1, 2017.

    ADDRESSES:

    Submit comments, identified by Docket No. EPA-R06-OAR-2016-0406, at http://www.regulations.gov or via email to [email protected] Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit any information electronically that is considered Confidential Business Information (CBI) or any other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment will be considered the official comment with multimedia submissions and should include all discussion points desired. The EPA will generally not consider comments or their contents submitted outside of the primary submission (i.e. on the web, cloud, or other file sharing systems). For additional submission methods, please contact James E. Grady, (214) 665-6745, [email protected] For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    James E. Grady, (214) 665-6745; [email protected] To inspect the hard copy materials, please schedule an appointment with James E. Grady or Mr. Bill Deese at 214-665-7253.

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” each mean “the EPA.”

    Table of Contents: I. Background on Regional Haze A. Visibility Protection B. Regulation Overview II. Requirements for Regional Haze Progress Report III. Evaluation of Regional Haze Progress Report A. Class I Areas B. Status of Control Strategies 1. SO2 Milestone and Backstop Trading Program 2. NOX and PM Control Strategies 3. Best Available Retrofit Technology (BART) 4. Mobile Source Emissions 5. Fire and Smoke Management 6. Fugitive and Unpaved Road Dust Measures 7. Additional Controls—Local State Regulations 8. Summary of Control Strategy Implementation C. Emission Reductions From Control Strategies D. Visibility Progress E. Emissions Progress F. Assessment of Changes Impeding Visibility Progress G. Assessment of Current Strategy To Meet RPGs H. Review of Visibility Monitoring Strategy I. Determination of Adequacy of Existing Regional Haze Plan IV. The EPA's Proposed Action V. Statutory and Executive Order Reviews I. Background on Regional Haze A. Visibility Protection

    Regional haze is visibility impairment that occurs over a wide geographic area primarily from the pollution of fine particles (PM2.5) in nature.1 Fine particles causing haze consist of sulfates, nitrates, organics, elemental carbon (EC), and soil dust.2 Airborne PM2.5 can scatter and absorb the incident light and, therefore, lead to atmospheric opacity and horizontal visibility degradation. Regional haze limits visual distance and reduces color, clarity and contrast of view. Emissions that affect visibility include a wide variety of natural and man-made sources. In New Mexico, the most important sources of haze-forming emissions are coal-fired power plants, oil and gas development, woodland fires, and windblown dust. Reducing PM2.5 and its precursor gases in the atmosphere is an effective method of improving visibility. PM2.5 precursors consist of sulfur dioxide (SO2), nitrogen oxides (NOX), ammonia (NH3) and volatile organic compounds (VOCs).

    1 Fine particles are less than or equal to 2.5 microns (µm) in diameter and usually form secondary in nature indirectly from other sources. Particles less than or equal to 10 µm in diameter are referred to as PM10. Particles greater than PM2.5 but less than PM10 are referred to as coarse mass. Coarse mass can contribute to light extinction as well and is made up of primary particles directly emitted into the air. Fine particles tend to be man-made, while coarse particles tend to have a natural origin. Coarse mass settles out from the air more rapidly than fine particles and usually will be found relatively close to emission sources. Fine particles can be transported long distances by wind and can be found in the air thousands of miles from where they were formed.

    2 Organic carbon (OC) can be emitted directly as particles, or formed through reactions involving gaseous emissions. Elemental carbon, in contrast to organic carbon, is exclusively of primary origin and emitted by the incomplete combustion of carbon-based fuels. They are especially prevalent in diesel exhaust and smoke from wild and prescribed fires.

    B. Regulation Overview

    In section 169A of the 1977 CAA Amendments, Congress declared as a national goal the prevention of any future, and the remedying of any existing, visibility impairment in mandatory class I Federal areas where impairment results from manmade air pollution.3 Congress added section 169B to the CAA in 1990 that added visibility protection provisions, and the EPA published final regulations addressing regional haze with the 1999 Regional Haze Rule (RHR).4 The RHR revised the existing visibility regulations and established a more comprehensive visibility protection program for mandatory Class I areas. The requirements for regional haze are found at 40 CFR 51.308 and 51.309. States must demonstrate reasonable progress toward meeting the national goal of a return to natural visibility conditions for mandatory Class I Federal areas both within and outside states by 2064. The requirement to submit a regional haze SIP applies to all fifty states, the District of Columbia, and the Virgin Islands. The City of Albuquerque and Bernalillo County,5 New Mexico must also submit a regional haze SIP separate from the State of New Mexico 6 to completely satisfy the requirements of section 110(a)(2)(D) of the CAA for the entire State under the New Mexico Air Quality Control Act (section 74-2-4).7

    3 Mandatory Class I Federal areas consist of national parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977. The EPA, in consultation with the Department of Interior, promulgated a list of 156 areas where visibility was identified as an important value. The extent of a mandatory Class I area includes subsequent changes in boundaries, such as park expansions. Although states and tribes may designate additional areas as Class I, the requirements of the visibility program set forth in the CAA applies only to “mandatory Class I Federal areas.” Each mandatory Class I Federal area is the responsibility of a “Federal Land Manager.” When the term “Class I area” is used in this action, it means “mandatory Class I Federal areas.” [See 44 FR 69122, November 30, 1979 and CAA Sections 162(a), 169A, and 302(i)].

    4 See July 1, 1999 Regional Haze Rule final action (64 FR 35714), as amended in July 6, 2005 (70 FR 39156), October 13, 2006 (71 FR 60631), June 7, 2012 (77 FR 33656) and in January 10, 2017 (82 FR 3079).

    5 Note that the City of Albuquerque and Bernalillo County is treated like a “state” for purposes of implementing the RHR, which is written specifically for states. The EPA regulates and funds Bernalillo County as it does any other state air agency. Enacted in 1967, the New Mexico State Air Quality Control Act [NMSA 1978 Sections 74-2-4, 74-2-5, and 74-2-7] allowed for the establishment of the Air Quality Control Board (AQCB) as a local board and empowered it with the authority to administer and enforce its air quality regulations within Bernalillo County. The AQCB has jurisdiction over all of Bernalillo County, (including the City of Albuquerque), except Indian lands. The State of New Mexico Environmental Improvement Board (EIB) has jurisdiction over all other counties in New Mexico.

    6 On December 31, 2003, New Mexico submitted a regional haze SIP with later revisions (July 5, 2011 and October 7, 2013) that addressed 40 CFR 51.309. The EPA approved both of the (2003 and 2011) submittals on November 27, 2012 (77 FR 70693) and approved a 2013 revision on October 9, 2014 with two separate rules (79 FR 60985 and 79 FR 60978). The New Mexico progress report was approved by the EPA on November 3, 2015 (see 80 FR 67682).

    7On November 12, 2003, the County first adopted its 40 CFR 51.309 regional haze SIP with later revisions (August 13, 2008; June 8, 2011). The EPA approved these submittals on Apr. 25, 2012 (77 FR 24768).

    II. Requirements for Regional Haze Progress Report

    The RHR requires a comprehensive analysis of each state's regional haze SIP every ten years and a progress report at five-year intervals. The five-year review is intended to provide an interim report on the implementation of, and, if necessary, mid-course corrections to, the regional haze SIP. The progress report provides an opportunity for public input on the County's (and the EPA's) assessment of whether the approved regional haze SIP is being implemented appropriately and whether reasonable visibility progress is being achieved consistent with the projected visibility improvement in the SIP. At a minimum, the required elements of the progress report under the RHR must include the following seven elements: 8

    8 See also General Principles for the 5-Year Regional Haze Progress Reports for the Initial Regional Haze State Implementation Plans (Intended to Assist States and EPA Regional Offices in Development and Review of the Progress Reports), April 2013, EPA-454/B-03-005, available at https://www.epa.gov/sites/production/files/2016-03/documents/haze_5year_4-10-13.pdf.

    (1) Provide a description of the status of implementation of all measures included in the regional haze SIP.

    (2) Summarize the emissions reductions achieved throughout the state.

    (3) Provide an assessment of current visibility conditions and the change in visibility impairment over the past five years.

    (4) Provide analysis tracking the change over the past five years in emissions of pollutants contributing to visibility impairment from all sources and activities within the state.

    (5) Provide an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility.

    (6) Provide an assessment of whether the current SIP elements and strategies are sufficient to enable the state (or other states with mandatory Class I areas affected by emissions from the state) to meet all established RPGs.

    (7) Provide a review of the state's visibility monitoring strategy and any modifications to the strategy as necessary.

    The City of Albuquerque and Bernalillo County, New Mexico submitted its progress report SIP for the County under 40 CFR 51.309 on June 24, 2016. Typically, progress report requirements of most states are covered under 40 CFR 51.308(g) and (h). 40 CFR 51.309 presents nine western states with an optional approach of fulfilling RHR requirements by adopting emission reduction strategies developed by the Grand Canyon Visibility Transport Commission (GCVTC). These strategies were designed primarily to improve visibility of sixteen Class I areas in the Colorado Plateau area.9 Three western states (New Mexico, Utah and Wyoming) including the City of Albuquerque and Bernalillo County, NM exercised the option provided in the RHR to meet alternative requirements contained in 40 CFR 51.309 for regional haze SIPs. For these states, the required content of the five-year progress report is identical with those for the other states, but are codified at 40 CFR 51.309(d)(10) instead of at 40 CFR 51.308 (g) and (h). This section specifies fixed due dates in 2013 and 2018 for these progress reports.10 In contrast, under 40 CFR 51.308, states must submit a progress report five years from submittal of the initial implementation plan. Under 40 CFR 51.309(d)(10)(ii), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions, as described in more detail in this proposal.

    9 The Colorado Plateau is a high, semi-arid tableland in Southeast Utah, Northern Arizona, Northwest New Mexico, and Western Colorado. The sixteen mandatory Class I areas are as follows: Grand Canyon National Park, Mount Baldy Wilderness, Petrified Forest National Park, Sycamore Canyon Wilderness, Black Canyon of the Gunnison National Park Wilderness, Flat Tops Wilderness, Maroon Bells Wilderness, Mesa Verde National Park, Weminuche Wilderness, West Elk Wilderness, San Pedro Parks Wilderness, Arches National Park, Bryce Canyon National Park, Canyonlands National Park, Capital Reef National Park, and Zion National Park.

    10 The 1999 RHR provided that these three states will eventually revert to the progress report due date requirements in 40 CFR 51.308 for the second implementation period. Recently, there was an extension of the second regional haze implementation period deadline from 2018 to 2021. (82 FR 3080, January 10, 2017).

    III. Evaluation of Regional Haze Progress Report

    On July 28 2011, the AQCB submitted a regional haze SIP for its own geographic area of Bernalillo County, New Mexico (including the City of Albuquerque) that addressed the requirements of 40 CFR 51.309.11 This SIP submittal was a necessary component of the regional haze plan for New Mexico to ensure that the requirements of section 110(a)(2)(D) of the CAA were satisfied for the whole state. On July 6, 2016, the EPA received the periodic report on progress for the County's regional haze SIP in the form of a SIP revision. This latest submission is the subject of this proposed approval. The periodic report was made in the first implementation period to assess visibility progression for Class I areas in and outside of the County that were negatively affected by emissions from within the County. The progress report included the County's determination that the existing regional haze SIP required no substantive revisions to achieve the established regional haze visibility improvement and emission reduction goals for 2018. The EPA agrees with the County's assessment and is proposing to approve its progress report SIP on the basis that it satisfies all requirements of 40 CFR 51.309(d)(10) as explained in further details in each subsequent section.

    11 See the EPA's proposed approval (77 FR 24768, April 25, 2012) and final rule (77 FR 71119, November 29, 2012) for the County.

    A. Class I Areas

    The City of Albuquerque and Bernalillo County does not formulate specific RPGs for particular Class I areas within its borders since no such areas exist.12 Therefore, the County is not required to identify RPGs or calculate baseline and natural visibility conditions at any Class I area. The County, however, is required to address the apportionment of visibility impact from the emissions generated by sources within the County at Class I areas outside of the County borders. As a result, the progress report addressed the emissions impact on RPGs and related emission reduction goals for nine Class I areas within the state of New Mexico that were identified as being close enough to the County that they could conceivably be affected by emissions from within the County. The nine Class I areas within New Mexico that were addressed in the progress report were: Bandelier Wilderness, Bosque del Apache National Wildlife Refuge, Carlsbad Caverns National Park, Gila Wilderness, Pecos Wilderness, Salt Creek Wilderness, Wheeler Peak Wilderness, White Mountain Wilderness, and San Pedro Parks Wilderness.13 Visibility impairment at New Mexico's nine Class I areas was tracked in units of deciviews (dv)14 as measured by eight monitors in the Interagency Monitoring of Protected Visual Environments (IMPROVE) Network. Through collaboration with the Western Regional Air Partnership (WRAP),15 the AQCB worked with New Mexico and other western states to assess state-by-state contributions to visibility impairment in specific Class I areas affected by Albuquerque and Bernalillo County, NM emissions. The determinations in the progress report relied on the technical analysis and emission inventories developed by the WRAP which is documented online and also appears in the technical appendices.16

    12 See 77 FR 24768, 24790 (Apr. 25, 2012).

    13 The Section 309 SIP submitted by New Mexico in December 2003 addressed only San Pedro Parks Wilderness Area and the other Class I areas were added in a later SIP revision under Section 309(g) in June 2011 and revised in October 2013. The EPA approved both of the (2003 and 2011) submittals on November 27, 2012 (77 FR 70693) and approved a 2013 revision on October 9, 2014 with two separate rules (79 FR 60985 and 79 FR 60978).

    14 A deciview is a haze index derived from calculated light extinction, such that uniform changes in haziness correspond to uniform incremental changes in perception across the entire range of conditions, from pristine to highly impaired. The preamble to the RHR provides additional details about the deciview (64 FR 35714, 35725, July 1, 1999).

    15 The WRAP is a collaborative effort of tribal governments, state governments and various federal agencies representing the western states that provides technical and policy tools for the western states and tribes to comply with the EPA's Regional Haze regulations. Detailed information regarding WRAP support of air quality management issues for western states is provided on the WRAP Web site (www.wrapair2.org). Data summary descriptions and tools specific to RHR support are available on the WRAP Technical Support System Web site (http://vista.cira.colostate.edu/tss/).

    16 The Western Regional Air Partnership Regional Haze Rule Reasonable Progress Summary Report technical support document has been prepared on behalf of the fifteen Western State members in the WRAP region to provide the technical basis for use by states to develop the first of their individual reasonable progress reports for the 116 Federal Class I areas located in the Western states.

    The EPA is proposing to find that the County has appropriately identified the Class I areas in this report which could be affected by emissions from within the County, as required by 40 CFR 51.309(g). This regulation provides a requirement for compliance with 40 CFR 51.308(d) to the extent that planning is necessary for areas other than the sixteen Class I areas on the Colorado Plateau addressed in the initial 2003 regional haze SIP. In the ensuing sections, the EPA addresses these Class I areas and the seven regulatory elements required by the progress report SIP; 17 how the County's progress report SIP addressed each element; and the EPA's analysis and proposed determination as to whether the County satisfied each part.

    17 See 40 CFR 51.309(d)(10)(i).

    B. Status of Control Strategies

    40 CFR 51.309(d)(10)(i)(A) requires a description of the status of implementation of all control measures included in the regional haze SIP for achieving RPGs for Class I areas both within and outside the state.

    The County evaluated the status of all control measures in its 2011 regional haze SIP in accordance with the requirements under 40 CFR 51.309(d)(10)(i)(A). The major control measures identified by the County in the progress report are as follows:

    • SO2 Milestone and Backstop Trading Program

    • NOX and PM Control Strategies

    • Best Available Retrofit Technology (BART)

    • Mobile Sources Emissions 18

    18 Under 40 CFR 51.309(d)(5)(ii), New Mexico is required to submit interim reports to the EPA and the public on the implementation status of the regional and local strategies to address mobile source emissions.

    • Fire and Smoke Management

    • Fugitive and Unpaved Road Dust Measures

    • Additional Controls—Local State Regulations

    The County identified ammonium sulfate, particulate organic matter, and coarse mass as the largest contributors to visibility impairment at New Mexico's Class I areas that need to be controlled.19 Many of the sources, however, that produce these visibility-impairing pollutants in New Mexico are natural, rather than anthropogenic in nature, and are not controllable. For the purpose of this progress report, the County focused on those emission sources that were anthropogenic in nature (as did New Mexico in its report). The primary sources of ammonium sulfate are point sources and mobile source emissions. Ammonium sulfate results from SO2 and NH3 precursor emissions. SO2 emissions in New Mexico are generally associated with anthropogenic point sources such as coal-fired power plants, other industrial sources like refineries and cement plants, and both on and off-road mobile sources. Particulate organic matter emissions in New Mexico are from natural and anthropogenic fire. Large wildfire events in the west dominate particulate organic aerosol emissions which are emitted directly into the air as particles instead of gases. Coarse mass emissions in New Mexico happen mainly as a result of windblown and fugitive dust. Coarse mass settles out of air more rapidly than fine particles, so strong wind events act as a transport vehicle to carry them long distances. Otherwise, they will typically be found close to the emission source.

    19 See the County's 2016 regional haze progress report submittal (page 9) which was reiterated in New Mexico's regional haze progress report (page 7).

    1. SO2 Milestone and Backstop Trading Program

    The progress report discussed the SO2 Milestone and Backstop Trading Program as a control measure to reduce emissions for major sources of SO2.20 The County has participated in this voluntary program since December 31, 2003.21 As part of this program, the Section 309 western states and the County must submit an annual report that compares tracked stationary sources of SO2 emissions to yearly milestones.22 A milestone is an established maximum level of annual emissions for a given year (from 2003-2018). The milestones help establish annual SO2 emission reduction targets. The annual targets represent RPGs in reducing visibility-impairing emissions. If states fail to meet the milestones, then the backstop-trading program is triggered to implement an emissions cap. The cap allocates emission allowances (or credits) to the affected sources based on the cap, and requires the sources to hold sufficient allowances to cover their emissions each year.

    20 Under Section 309, nine western states and the tribes within those states had the option of submitting plans to reduce visibility-impairing emissions at sixteen Class I areas on the Colorado Plateau. Five states (Arizona, New Mexico, Oregon, Utah, Wyoming) and the City of Albuquerque and Bernalillo County, NM exercised this option by submitting plans to the EPA by December 1, 2003. Oregon and Arizona have since elected to cease participation in the Milestone and Backstop Trading Program in 2006 and 2010, respectively. The tribes are not subject to any deadline and can still opt into the program at any time.

    21 The County cooperates with its WRAP partners to maintain an inventory of regional SO2 emissions, across the Section 309 states. The City of Albuquerque Air Quality Program (AQP) monitors SO2 ambient air concentrations in Bernalillo County consistent with EPA regulations. See the City of Albuquerque Environmental Health Department (EHD) Web site at https://www.cabq.gov/airquality/documents for Annual Network Reviews for Ambient Air Monitoring.

    22 See WRAP Web site at https://www.wrapair2.org/reghaze.aspx for the Regional Milestone reports. A final 2014 milestone report was posted on March 7, 2016 and a draft 2015 report was posted recently on March 20, 2017. Appendix G of the County progress report includes the 2013 Regional SO2 Emissions and Milestone Report.

    The regional haze SIP requires multiyear averaging of emissions for the milestone comparison. From 2005-2017, the three-year average, which includes the reporting year and the two previous years, is calculated and compared to the milestone. The regional milestone for 2013 was 185,795 tons SO2. The three-year average SO2 emissions for 2011, 2012, and 2013 was 105,402 tons SO2, which was 43 percent below the 2013 milestone. In table 1 below, 2014 and 2015 WRAP data shows similar SO2 reduction trends that continue beyond 2013 toward 2018. No triggering of the backstop trading program has been necessary and the likelihood of meeting the 2018 target means no changes in the program are needed at the moment. The compliance dates show that SO2 emissions have consistently been below each annual RPG and are currently tracking to be below the 2018 milestone.

    Table 1—SO2 Emission Milestones 23 Year Regional SO2
  • milestone tons per year
  • (tpy)
  • Average SO2 emissions to determine compliance with milestone SO2
  • (tpy)
  • 3-Year average
    2008 269,083 265,662 2006, 2007 and 2008. 2009 234,903 165,633 2007, 2008 and 2009. 2010 200,722 146,808 2008, 2009 and 2010. 2011 200,722 130,935 2009, 2010 and 2011. 2012 200,722 115,115 2010, 2011 and 2012. 2013 185,795 105,402 2011, 2012 and 2013. 2014 170,868 96,392 2012, 2013 and 2014. 2015 155,940 91,310 2013, 2014 and 2015. 2016 155,940 Not Available 2014, 2015 and 2016. 2017 155,940 Not Available 2015, 2016 and 2017. 2018 141,849 Not Available 2016, 2017 and 2018. 2019 forward 141,849 Not Available Annual; no averaging.
    2. NOX and PM Control Strategies

    23 The milestone numbers reflect the participation of Wyoming, Utah, and New Mexico (including the City of Albuquerque and Bernalillo County) in the 309 backstop trading program.

    The County included a report in its 2011 regional haze SIP that assessed emission control strategies for NOX and PM stationary sources, and the degree of visibility improvement that would result from their implementation.24 The report concluded that current and future NOX and PM emissions do not show to be major contributors to regional haze (typically about two percent on average) in the vast majority of western Class I areas. The report represented the initial assessment of stationary source NOX and PM strategies for regional haze, and was a starting point for a more extensive analysis in the future. The 2011 regional haze SIP stated that the progress report would assess the need for new NOX and PM control measures to address any new contributions to regional haze from stationary sources in the County. The County concluded in the progress report that it does not find new control measures necessary for NOX and PM stationary sources at this time. Stationary source NOX and PM emissions in the County have not impeded reasonable progress of emissions and visibility in New Mexico as a whole and are not likely to do so. Please refer to the emission reduction section of this report for more details regarding NOX and PM emissions.

    24 The report, Stationary Source NO X and PM Emissions in the WRAP Region: An Initial Assessment of Emissions, Controls, and Air Quality Impacts, was prepared by the WRAP and is included in Appendix H-O of the SIP.

    3. Best Available Retrofit Technology (BART) 25

    25 BART sources are those sources that have the potential to emit 250 tons or more of visibility-impairing pollutants, were put in place between August 7, 1962 and August 7, 1977, and whose operations fall within one or more of 26 specifically listed source categories.

    The regional haze SIP determined that there are no BART-eligible sources in the County, so there are no requirements to install BART controls.26 Even so, the progress report mentioned how the County must still specifically demonstrate that its SO2 milestone and backstop-trading program will achieve greater reasonable progress than would be achieved by implementation of BART controls.27 Under this approach, a section 51.309 regional haze SIP must establish declining SO2 emission milestones for each year of the program through 2018. The milestones must be consistent with the GCTVC's goal of fifty to seventy percent reduction in SO2 emissions by 2040. As demonstrated in the County's regional haze SIP, the SO2 milestones provide greater reasonable progress than BART and track at a sixty percent pace reduction of the 1990 SO2 emission levels.28 The actual annual SO2 emission reduction results outperformed this milestone pace. The progress report showed that the three-year average SO2 emissions for 2013 was 43 percent below the 2013 milestone at 105,402 tons SO2 (see Table 1). That represents a 71 percent reduction from the 1990 emission totals and is exceeding the GCVTC goal of fifty to seventy percent reduction. The regional SO2 emissions have continued to decline at a faster pace than called for by the SO2 milestones. Thus, as anticipated, the milestone program has actually continued to achieve greater reasonable progress than would be the case if BART were implemented.

    26 The WRAP identified three potential BART-eligible sources in the County. These were PNM Reeves Generating Station, GCC Rio Grande Inc., and Cobisa Person Power Project. The AQCB assessed whether these facilities were existing stationary facilities as defined at 40 CFR 51.301 and determined that all three sources were not BART-eligible. PNM Reeves and GCC Rio Grande were not in existence nor operating during the requisite time period, and Cobisa Person Power Project did not have emission units in the 26 source categories for BART. See the EPA's proposed approval for the County's regional haze SIP (77 FR 24768, 24782, April 25, 2012).

    27 40 CFR 51.309(d)(4)(i).

    28 See the County's 2011 regional haze SIP submittal (pages 112-124). SO2 emissions from sources in 1990 totaled 358,364 tpy and the 2018 milestone is 141,849 tpy, which represents sixty percent reduction.

    4. Mobile Source Emissions

    The progress report mentioned that the County is relying upon federal standards as long-term measures to achieve declines in mobile source emissions that contribute to regional haze.29 The County also committed itself in the SIP to monitoring mobile source emissions (through the WRAP) to assure a continuous decline in emissions as defined in 40 CFR 51.309(b)(6).30 A statewide inventory of baseline and future annual mobile source emissions has been compiled for the years 2003-2018 with assistance from the WRAP.31

    29 See the County's 2011 regional haze SIP (pages 56-58) and New Mexico's 2011 regional haze SIP (page 144) for ongoing implementation of federal mobile source regulations. The County regional haze SIP listed as a haze-control measure 20.11.104 NMAC, Emission Standards for New Motor Vehicles. This regulation was adopted in 2007 to implement California's clean car standards. At the time the regulation was adopted by New Mexico, the California standards were projected to substantially differ from federal motor vehicle emissions standards. Since that time, the California and federal programs for emissions standards for motor vehicles have become more aligned with each other than was expected by New Mexico when it adopted the State Mobile Source Regulation. For example, in 2009, the EPA and the National Highway Traffic Safety Administration (NHTSA) proposed “regulatory convergence” with California on motor vehicle fuel economy standards. See 74 FR 49454 (September 28, 2009). This was subsequently adopted, starting with model years 2012-2016. 75 FR 25323 (May 7, 2010). Therefore, 20.11.104 NMAC is currently redundant and is not being implemented.

    30 See the County's 2011 regional haze SIP (page 59).

    31 See WRAP 2013 Summary Report, pages 3-11 to 3-20, 4-1 to 4-2, and 6-222 to 6-233.

    5. Fire and Smoke Management

    The County is relying on fire and smoke management programs under 20.11.21 NMAC, Open Burning, in order to help control anthropogenic fire related emissions of VOCs, NOX, elemental carbon, organic carbon, and PM2.5. This regulation requires that most open burning in Bernalillo County be conducted under a permit from the City of Albuquerque EHD subject to specific requirements, including: reporting of emissions for use in emissions inventories; consideration of alternatives to burning; use of enhanced smoke management techniques recommended by the WRAP; and use of specific emission reduction techniques. The programs in this measure are generally designed to limit increases in emissions, rather than to reduce existing emissions.

    6. Fugitive and Unpaved Road Dust Measures

    The progress report mentioned measures that provide for control of PM10 and PM2.5 emissions from unpaved roads and from stationary fugitive dust sources.32 The EHD implements this requirement through 20.11.20 NMAC, Fugitive Dust Control, which requires the use of reasonably available control measures (RACM) to reduce fugitive dust that impairs visibility or adversely affects public health, welfare, and safety.33 The measure prevents fugitive dust from leaving sites where it is produced, and thus reduces the amount of those emissions. The regulation requires sources to obtain permits and pay related fees, limits construction activity, and has an active enforcement program in place to implement the provisions on an ongoing basis. In addition, the AQCB tracks road dust emissions with the assistance of the WRAP. They provide updates, including modeling and monitoring information, on paved and unpaved road dust emission impacts on visibility in the sixteen Colorado Plateau Class I Areas.

    32 For more information on the WRAP modeling and assessment of road dust impacts, see section F of the County regional haze SIP (pages 69-71).

    33 The City of Albuquerque EHD also has delegated authority to enforce applicable federal standards related to particulate matter, as promulgated in 40 CFR Sections 60, 61, and 63.

    7. Additional Controls—Local State Regulations

    The County lists several local regulations that are being used to aid in controlling emissions that contribute to the formation of regional haze at Class I areas. These regulations, and the pollutants targeted by them, appear in table 2 below. The EHD implements and enforces these regulations on a continuing basis.

    Table 2—County Regulations Applicable to Regional Haze 34 Regulation Description Pollutant controlled 20.11.22 NMAC Wood burning CO, PM. 20.11.65 NMAC Volatile Organic Compounds VOCs. 20.11.66 NMAC Process Equipment PM. 20.11.67 NMAC Equipment, Emissions, Limitations SO2, NOX, PM. 20.11.71 NMAC Municipal Solid Waste Landfills CO. 20.11.100 NMAC Motor Vehicle Inspection, Decentralized CO, PM, hydrocarbons. 20.11.102 NMAC Oxygenated Fuels CO. 20.11.103 NMAC Motor Vehicle Visible Emissions PM. 8. Summary of Control Strategy Implementation

    34 See the County Web site for a listing of the NMAC rules at http://164.64.110.239/nmac/_title20/T20C011.htm.

    The EPA proposes to conclude that the County adequately addressed the status of control measures in its regional haze SIP, as required by the provisions under 40 CFR 51.309(d)(10)(i)(A) for the first implementation period. The County's progress report documented the status of all control measures included in its regional haze SIP and described additional measures that came into effect since the County's regional haze SIP was completed, including state regulations and various federal measures. All major control measures were identified and the strategy behind each control was explained. The County included a summary of the implementation status associated with each control measure and quantified the benefits where possible. In addition, the progress report SIP adequately outlined the compliance timeframe for all controls

    C. Emission Reductions From Control Strategies

    The provisions under 40 CFR 51.309(d)(10)(i)(B) require the state to provide a summary of the emission reductions achieved in the state through the control measures subject to the requirements under 40 CFR 51.309(d)(10)(i)(A). As mentioned previously, the County identified ammonium sulfate, particulate organic matter, and coarse mass as the largest contributors historically to visibility impairment at New Mexico's Class I areas for the initial round of regional haze SIPS. Many of the sources, however, that produce these visibility-impairing pollutants in New Mexico are natural, rather than anthropogenic in nature, and are not controllable. As a result, the New Mexico progress report focused on emission reductions from point sources because they represent the anthropogenic sources in New Mexico.35 The New Mexico report showed that these pollutants have mostly been contributing less to visibility impairment at New Mexico Class I areas over time, and the anthropogenic point source emissions related to these pollutants have also been declining in areas of the state outside the County.36

    35 See the 2014 New Mexico Regional Haze Progress Report (page 7).

    36 See Figure 3.6 from the 2014 New Mexico Regional Haze Progress Report (page 15).

    For comparison, in its progress report, the County took the same approach as New Mexico and reported anthropogenic point source emission data (see table 3) from the County for NOX, SO2, PM10, and PM2.5 and compared it to WRAP 2018 projections for the 2008-2013 time-period.

    37 See the 2016 County Regional Haze Progress Report (page 21).

    Table 3—The County Stationary Point Source Emissions Compared to 2018 WRAP Projections 37 Year NOX (tpy) SO2 (tpy) PM10 (tpy) PM2.5 (tpy) 2008 1,139 57 1,222 239 2011 1,120 74 186 110 2012 1,167 132 351 116 2013 1,401 165 323 117 2018 WRAP Projections 3,402 1,612 411 23

    The County noted that pollutant emissions from the County have not impeded reductions in the rest of the state. SO2 and NOX county emission trends have increased slightly since 2008 but have remained well below the WRAP 2018 projections for point sources and were just a fraction of the levels observed in the rest of the state (see table 4). PM10 emission levels for the County were below the WRAP 2018 projections while PM2.5 levels were above the WRAP predictions. Although the PM2.5 levels were above WRAP 2018 projections, PM emission levels from the County have decreased in a downward trend for both fine particulates and coarse mass since 2008. When comparing pollutant emission contributions of NOX, SO2, PM10, and PM2.5 from the County to the statewide national emission inventory (NEI), the County concluded that it is improbable that the County emissions have had significant impacts on nearby Class I areas. The reported point source amounts from the County remain low in comparison to those from the rest of the state as seen from the statewide NEI data in table 4.

    38 As reported in the online EPA Emissions Inventory System (EIS) Gateway database for point sources only.

    Table 4—NEI Point Source Emission Data for New Mexico for 2002-2014 38 Year NOX (tpy) SO2 (tpy) PM10 (tpy) PM2.5 (tpy) 2002 95,493 36,392 6,558 5,511 2005 72,707 18,532 3,611 2,994 2008 57,461 22,868 2,953 1,754 2011 47,497 19,987 2,545 1,722 2014 42,623 12,535 3,091 1,538

    The NEI data shows that the emission trend of each major contributor to visibility impairment in New Mexico has decreased significantly since 2002. NOX emissions have decreased by 55 percent and SO2 emissions have decreased by 65 percent. PM reductions also reduced considerably from their NEI baseline totals (52% for PM10 and 72% for PM2.5) and remain below the 2018 WRAP projections for New Mexico, although not especially pronounced.39 A more-detailed breakdown of the distribution of each contributing pollutant species can be seen in section E of this report.

    39 See Figure 3.6 from the 2014 New Mexico Regional Haze Progress Report (page 15).

    The EPA proposes to conclude that the County adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(B) with its summary of emission reductions of visibility impairing pollutants. Overall, the County demonstrated the emission reductions achieved in the major contributing visibility impairing pollutants in the County for the first implementation period. Anthropogenic emissions of haze related pollutants from stationary point sources in the County are unlikely to reverse the larger, favorable statewide emission trends, because over time such local emissions have remained at a fraction of the levels seen in the rest of the state. Furthermore, such county emissions are under or close to the WRAP 2018 projections for those pollutants.40

    40 See the 2016 County Regional Haze Progress Report (pages 15-22).

    D. Visibility Progress

    The provisions under 40 CFR 51.309(d)(10)(i)(C) require that states with Class I areas provide the following information for the most impaired and least impaired days 41 for each area, with values expressed in terms of five-year averages of these annual values: (1) Current visibility conditions; (2) the difference between current visibility conditions and baseline visibility conditions; and (3) the change in visibility impairment over the past five years. The County does not have any Class I areas within its borders; therefore, no visibility data is required to be analyzed for this element. In regard to New Mexico's Class I areas outside of the County, please note that when comparing baseline to current visibility conditions, the New Mexico progress report showed that New Mexico is currently on track, if not exceeding, the visibility impairment emission reductions needed to achieve RPG's for 2018.42

    41 The most and least impaired days in the regional haze rule refers to the average visibility impairment (measured in deciviews) for the 20 percent of monitored days in a calendar year with the highest and lowest amount of visibility impairment, respectively, averaged over a five-year period (see 40 CFR 51.301).

    42 See table 2.1 of New Mexico Regional Haze Progress Report (page 5).

    E. Emissions Progress

    The provisions under 40 CFR 51.309(d)(10)(i)(D) require an analysis tracking emission changes of visibility impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emission inventory. In its progress report SIP, the County presented WRAP emission inventories for 2002, 2008, and 2011, as well as projected inventories for 2018, in accordance with the requirements of 40 CFR 51.309(d)(10)(i)(D). The pollutant inventories included SO2, NOX, NH3, VOCs, organic carbon, elemental carbon, coarse mass, and soil dust. The inventories were categorized for all major visibility-impairing pollutants under major source groupings either as anthropogenic or natural. The anthropogenic source categorization included point and area sources; on and off-road mobile sources; area oil and gas; fugitive and road dust; and anthropogenic fire. The natural source categorization included natural fire, wind-blown dust, and biogenic sources. A breakdown of the total anthropogenic emissions for the County and state can be seen below in table 5. The table shows the percent apportionment of County emissions for each of the key haze-causing pollutants related to the rest of the state.

    43 The emission totals for the County are taken from the County regional haze progress report (tables 3.22-3.29). Emission totals for the entire state of New Mexico are taken from the New Mexico Regional Haze progress report (tables 3.23-3.30). Detailed inventory descriptions for development of the WRAP Base02b, plan02c and plan02d inventories are available on the WRAP TSS Web site http://vista.cira.colostate.edu/TSS/Results/Emissions.aspx and archived on the original WRAP Web site http://www.wrapair.org/forums/ssjf/pivot.html.

    Table 5—Comparison of County and State Anthropogenic Emissions to WRAP 2018 Projections 43 Pollutant species Inventory 2002 Total
  • baseline
  • emissions
  • (tons/year)
  • 2008 Total emissions
  • (tons/year)
  • 2011 Total emissions
  • (tons/year)
  • WRAP 2018 projections
  • (tons/year)
  • SO2 County 4,772 (10%) 291 1,250 (6%) 13,770 State 48,354 27,392 21,624 NOX County 33,661 (11%) 16,960 14,760 (9%) 26,819 State 295,266 211,132 168,008 NH3 County 1,400 (4%) 856 682 (2%) 1,683 State 32,266 43,840 37,071 VOCs County 25,573 (7%) 19,137 14,574 (7%) 23,891 State 344,077 268,792 214,360 PM2.5 County 2,229 (18%) 4,112 5,777 (7%) 2,433 State 12,573 61,587 85,576 Coarse Mass County 16,387 (25%) 36,982 56,655 (7%) 17,369 State 66,096 511,327 830,697

    The WRAP data showed that the percentage of County emissions contributing to the total state emissions has decreased for each pollutant species from the 2002 baseline to 2011. The WRAP emission inventories were previously identified in the SIP as reflecting overestimates of actual emissions in key source categories. Even so, there has not been a drastic, sudden spike in the percentages, which would be a cause for concern for visibility degradation at the Class I areas. The decreasing WRAP percentages are indicators that the County “conservative” emission estimates have improved throughout the first implementation period and are contributing less and less to visibility impairment at Class I areas outside of its borders from 2002-2011. The County concluded that it is unlikely that the County emissions had significant impacts on nearby Class I areas as a result. The County's contribution of emissions compared to the New Mexico emission inventory, as estimated by the WRAP, is six percent of the State SO2 emissions; nine percent of the State NOX emissions; two percent of the State NH3 emissions; seven percent of the State VOC emissions; seven percent of the State PM2.5 emissions; and seven percent of the State coarse mass emissions. These percentages are all down from their 2002 baseline levels. PM2.5 and coarse mass 2011 total emissions are higher than the WRAP 2018 projections, but their decreasing percent contributions are better indicators of the progress made since emissions have increased statewide, yet their percentages have decreased from eighteen and 25 percent respectively, in 2002, to seven percent each in 2011.

    The EPA is proposing to find that the County adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(D). The EPA concludes that the County presented an adequate analysis tracking emission trends for the key visibility impairing pollutants. The analysis provided the most recent period of approximately five years for which data was available in practical terms (2002-2008), and provided an additional update for 2011 that presented further information covering approximately two five-year periods (2002-2011). The trends indicate that it was improbable that sources located within the County caused or contributed to visibility impairment in any Class I area located outside of the County. The emission trends declined within the County compared to 2002 baseline levels and the percent contributions related to the rest of the state have all continued to decline over time.

    F. Assessment of Changes Impeding Visibility Progress

    The provisions under 40 CFR 51.309(d)(10)(i)(E) require an assessment of whether any significant emission changes have occurred within the state over the five-year period since the SIP was submitted, and whether emission increases outside the state are affecting a Class I area within the state adversely. A “significant change” could be either a substantial unexpected increase in anthropogenic emissions that occurred over the five-year period or a significant expected reduction in anthropogenic emissions that did not occur in the analysis for the SIP.

    The EPA proposes to conclude that the County adequately addressed the provisions under 40 CFR 51.309(d)(10)(i)(E). The County does not have any Class I areas within its borders, so there is no requirement to assess impacts in the County from sources outside of its boundaries. Furthermore, the County sources do not impact any of the Class I areas outside of its borders, as was stated in the County's regional haze SIP revision, which the EPA approved on April 25, 2012.44 In conjunction with that previous action, the EPA's current analysis of emission reductions to meet the provisions of 40 CFR 51.309(d)(10)(i)(B) and 40 CFR 51.309(d)(10)(i)(D) show that no “significant changes” in emissions within the County have occurred to impede visibility improvement or have adversely affected the nine Class I areas in New Mexico.45 Emission trends for the key visibility impairing pollutants were confirmed to be decreasing from the baseline to 2018 by statewide NEI data and reported County emissions. Additionally, the WRAP data showed that emissions from the County have remained at the same percentage levels over time or decreased relative to emissions from elsewhere in the state.

    44 See 77 FR (24768, 24791).

    45 Changes in wildfires are not a “change” to report under 51.309(d)(10)(i)(E) per EPA guidance, General Principles for the 5-Year Regional Haze Progress Reports for the Initial Regional Haze State Implementation Plans (page 15).

    G. Assessment of Current Strategy To Meet RPGs

    The provisions under 40 CFR 51.309(d)(10)(i)(F) require an assessment of whether the current regional haze SIP is sufficient to enable the state, or other states, to meet the RPGs for Class I areas affected by emissions from the state. The County does not contain any Class I areas, and emissions from the County were found to not impact any Class I areas outside of its borders. As discussed previously, the NEI data showed that the total emissions of each major contributor to visibility impairment in New Mexico has decreased significantly since 2002. The total County emissions have remained at a fraction of the levels seen in the rest of the state and are under or close to the WRAP 2018 RPGs when looking at the cumulative anthropogenic emissions.

    The County provided a breakdown showing whether or not every key pollutant in each source category was meeting its 2018 RPGs for annual emissions.46 Of the 56 individual RPGs for the County, 42 were either being met or referred to pollutants that showed declining emissions since 2002. Fourteen of the County goals were not yet being met as of the 2011 WRAP inventory, but nine of those annual goals showed reported emission levels less than 200 tpy, and one was just under 500 tpy. Those ten goals were associated with point sources and on and off road mobile source categories. The County concluded that those ten reported emissions were unlikely to impede New Mexico's progress toward achieving statewide goals for emissions and visibility since the emission levels represented a negligible portion of total statewide emissions.

    46 Showed in tables 3.22-3.29 of the County Regional Haze Progress Report.

    The four remaining annual emission goals that were not being met covered coarse mass, organic carbon, and PM2.5 pollutants. The increased contributions from these pollutants were associated with fugitive/road dust and area (non-point) source categories. Annual emissions with higher levels of organic matter, elemental carbon, PM2.5 and coarse mass with a lower contribution from ammonium sulfate are heavily dominated from wildfires and particulate matter. High coarse mass was measured during the spring, which was indicative of high-wind events that occurred during the late winter and spring months in New Mexico. Wildfires or high-wind events might again affect annual emissions in the 2018 timeframe, but the County showed that it is meeting nearly all of its annual emission goals even with experienced annual emission increases from natural events that still have not hindered New Mexico from meeting its RPGs beyond the County borders. The County expects further reduction of SO2 and NO2 emissions, the primary pollutant species associated with anthropogenic sources, to continue their broad declines in the same areas.

    The EPA proposes to conclude that the County has addressed 40 CFR 51.309(d)(10)(i)(F) because its current regional haze SIP is sufficient to enable the state of New Mexico and other nearby states to meet their RPGs, particularly as the County was not identified as contributing to any impairment in such Class I areas. The fairly constant proportion of County emissions compared to the rest of the state are negligible. In spite of natural events, the County showed that it is meeting nearly all of its annual emission goals and the annual emission increases from natural events still have not hindered New Mexico from meeting its RPGs beyond the County borders.

    H. Review of Visibility Monitoring Strategy

    The provisions under 40 CFR 51.309(10)(i)(G) require a review of a state's visibility monitoring strategy for visibility impairing pollutants and an assessment of whether any modifications to the strategy are necessary. In its progress report SIP, the County stated that there are no Class I areas within its boundaries, and therefore it was not required to fulfill this provision. The EPA proposes to conclude that the County is exempt from addressing the requirements of 40 CFR 51.309(10)(i)(G), as that requirement is solely for states with Class I areas in their borders.47

    47 The New Mexico progress report concluded (pages 46-47) that no changes in the state's visibility monitoring strategy are needed because the IMPROVE network has continued to provide adequate monitoring data to support implementation of the RHR.

    I. Determination of Adequacy of Existing Regional Haze Plan

    Under 40 CFR 51.309(d)(10)(ii), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. 40 CFR 51.309(d)(10)(ii) requires states to take one of the following actions:

    (1) Submit a negative declaration to the EPA that no further substantive revision to the State's existing regional haze SIP is needed.

    (2) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another state(s) which participated in a regional planning process, the State must provide notification to the EPA and to the other state(s) which participated in the regional planning process with the states. The State must also collaborate with the other state(s) through the regional planning process for developing additional strategies to address the plan's deficiencies.

    (3) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another country, the State shall provide notification, along with available information, to the Administrator.

    (4) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources within the State, then the State shall revise its implementation plan to address the plan's deficiencies within one year.

    The City of Albuquerque and Bernalillo County, New Mexico has provided the information required under 40 CFR 51.309(d)(10)(i) in the five-year progress report. Based upon this information, the County stated in its progress report SIP that it believes that the current Section 309 and Section 309(g) regional haze SIPs are adequate to meet the State's 2018 RPGs and require no further revision at this time. Thus, the EPA has received a negative declaration from the City of Albuquerque and Bernalillo County, NM.

    IV. The EPA's Proposed Action

    The EPA is proposing to approve the City of Albuquerque and Bernalillo County, New Mexico's regional haze five-year progress report SIP revision (submitted June 24, 2016) as meeting the applicable regional haze requirements set forth in 40 CFR 51.309(d)(10). The EPA is proposing to approve the City of Albuquerque and Bernalillo County, New Mexico's determination that the current regional haze SIP is adequate to meet the State's 2018 RPGs.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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 CAA. Accordingly, this action merely proposes to approve 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), 13563 (76 FR 3821, January 21, 2011), and 13771 (82 FR 9339, February 2, 2017);

    • 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). 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 proposed 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Best Available Retrofit Technology, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Regional haze, Sulfur dioxide, Visibility, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 26, 2017. Samuel Coleman, Acting Regional Administrator, Region 6.
    [FR Doc. 2017-21006 Filed 9-29-17; 8:45 am] BILLING CODE 6560-50-P
    SURFACE TRANSPORTATION BOARD 49 CFR Part 1102 [Docket No. EP 739] Ex Parte Communications in Informal Rulemaking Proceedings AGENCY:

    Surface Transportation Board.

    ACTION:

    Notice of Proposed Rulemaking.

    SUMMARY:

    In this decision, the Surface Transportation Board (the Board) proposes to modify its regulations to permit, subject to disclosure requirements, ex parte communications in informal rulemaking proceedings. The Board also proposes other changes to its ex parte rules that would clarify and update when and how interested persons may communicate informally with the Board regarding pending proceedings other than rulemakings. The intent of the proposed regulations is to enhance the Board's ability to make informed decisions through increased stakeholder communications while ensuring that the Board's record-building process in rulemaking proceedings remains transparent and fair.

    DATES:

    Comments are due by November 1, 2017. Replies are due by November 16, 2017.

    ADDRESSES:

    Comments and replies may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at “www.stb.gov” at the “E-FILING” link. Any person submitting a filing in paper format should send an original and 10 paper copies of the filing to: Surface Transportation Board, Attn: Docket No. EP 739, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments and replies will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

    FOR FURTHER INFORMATION CONTACT:

    Jonathon Binet at (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    The Board's current regulations at 49 CFR 1102.2 generally prohibit most informal communications between the Board and interested persons concerning the merits of pending Board proceedings. These regulations require that communications with the Board or Board staff regarding the merits of an “on-the-record” Board proceeding not be made on an ex parte basis (i.e., without the knowledge or consent of the parties to the proceeding). See 49 CFR 1102.2(c); 49 CFR 1102.2(a)(3). The current regulations detail the procedures required in the event an impermissible communication occurs and the potential sanctions for violations. See 49 CFR 1102.2(e), (f).

    The Board's predecessor agency, the Interstate Commerce Commission (ICC), determined that the general prohibition on ex parte communications in proceedings should include the informal rulemaking proceedings the Board uses to promulgate regulations.1 See Revised Rules of Practice, 358 I.C.C. 323, 345 (1977) (“[E]x parte communication during a rulemaking is just as improper as it is during any other proceeding. The Commission's decisions should be influenced only by statements that are a matter of public record.”). Accordingly, it has long been the agency's practice to prohibit meetings with individual stakeholders on issues that are the topic of pending informal rulemaking proceedings.

    1 The Administrative Procedure Act (APA), 5 U.S.C. 551-559, governs two categories of agency rulemaking: Formal and informal. Formal rulemaking is subject to specific procedural requirements, including hearings, presiding officers, and a strict ex parte prohibition. See 5 U.S.C. 556-57. But most federal agency rulemakings, including the Board's, are informal rulemaking proceedings subject instead to the less restrictive “notice-and-comment” requirements of 5 U.S.C. 553.

    The Board has determined that it is appropriate to revisit the agency's strict prohibition on ex parte communications in informal rulemaking proceedings for several reasons. First, the case law governing the propriety of ex parte communications in informal rulemakings has evolved, and agencies now have more flexibility to engage in such communications and establish procedures to govern them. Second, a recent consensus recommendation of the Administrative Conference of the United States (ACUS), the body charged by Congress with recommending agency best practices, encourages greater use of ex parte communications in informal rulemaking proceedings so long as agencies devise appropriate safeguards. Third, the Board's own experiences in two recent rulemaking proceedings in which the Board waived its ex parte prohibitions to permit stakeholder meetings have demonstrated that informal meetings between the Board and stakeholders can aid the Board's decision-making process while still being conducted in a transparent and fair manner.

    The Board has also determined that certain other aspects of its ex parte regulations that apply to proceedings other than rulemakings could be clarified and updated to reflect current practices and better guide stakeholders and agency personnel.

    Case Law Developments Regarding Ex Parte Communications in Informal Rulemaking Proceedings

    In the late 1970s, several court decisions expressed the view that ex parte communications in informal rulemaking proceedings were inherently suspect.2 Courts expressed concerns that the written administrative record did not reflect the possible “undue influence” exerted by those stakeholders who had engaged in ex parte communications, HBO v. FCC, 567 F.2d at 54, and that ex parte communications “violate[d] the basic fairness of a hearing which ostensibly assures the public a right to participate in agency decision making,” foreclosing effective judicial review, National Small Shipments Traffic Conference v. ICC, 590 F.2d 345, 351 (D.C. Cir. 1978). At the same time, however, other court decisions were more tolerant of ex parte communications in informal rulemaking proceedings, so long as the proceeding was not quasi-adjudicative in nature and the process remained fair.3 The ICC determined that its ex parte prohibition should apply equally to rulemaking proceedings. Revised Rules of Practice, 358 I.C.C. at 345.

    2See, e.g., Home Box Office v. Fed. Commc'ns Comm'n (HBO v. FCC), 567 F.2d 9, 51-59 (D.C. Cir. 1977) (finding that ex parte communications that occurred after the notice of proposed rulemaking (NPRM) violated the due process rights of the parties who were not privy to the communications); see also Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959) (finding that undisclosed ex parte communications between agency commissioners and a stakeholder were unlawful because the informal rulemaking involved “resolution of conflicting private claims to a valuable privilege, and that basic fairness requires such a proceeding to be carried on in the open”).

    3See, e.g., Action for Children's Television v. Fed. Commc'ns Comm'n, 564 F.2d 458 (D.C. Cir. 1977) (upholding the agency's decision not to issue proposed rules and finding no APA violation for ex parte discussions where the agency provided a meaningful opportunity for public participation and the proceeding did not involve competing claims for a valuable privilege).

    Despite these initial misgivings by the courts, the D.C. Circuit's 1981 decision in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), significantly clarified and liberalized treatment of this issue. That case involved an informal rulemaking conducted by the Environmental Protection Agency pursuant to the Clean Air Act, in which the agency had received numerous written and oral ex parte communications after the close of the comment period. The court considered the “timing, source, mode, content, and the extent of . . . disclosure” of ex parte communications received after the close of the comment period to determine whether those communications violated the Clean Air Act or due process. Id. at 391. The court noted that the Clean Air Act itself did not prohibit ex parte communications, although it did require documents of “central relevance” be placed on the public docket.4 Id. at 397. Because the agency had docketed most of the ex parte communications and none of the comments were docketed “so late as to preclude any effective public comment,” the court held that the agency satisfied its statutory requirements. Id. at 398.

    4 The court also made clear that the APA does not impose any prohibition of, or requirements related to, ex parte communications in informal rulemaking. Sierra Club, 657 F.2d at 402 (noting that Congress declined to extend the ex parte prohibition applicable to formal rulemakings to informal rulemakings despite being urged to do so).

    As for constitutional due process, the court in Sierra Club found there was “questionable utility” in insulating the decisionmaker in informal rulemakings (in contrast to quasi-judicial and quasi-adjudicatory rulemakings) from ex parte communications because the decisionmaker in such cases is not resolving “conflicting private claims to a valuable privilege.” Id. at 400. The court declined to prohibit ex parte communications in such rulemaking on due process grounds, and even held that not all ex parte communications must necessarily be docketed (implicitly concluding that whether such communications require docketing depends on case-specific circumstances). Id. at 402-04.

    Today, Sierra Club is considered the most recent influential decision on ex parte communications in informal rulemakings and is often cited by courts for the proposition that ex parte communications in informal agency rulemaking are generally permissible.5

    5See, e.g., Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d. 313, 327 (5th Cir. 2001) (“Generally, ex parte contact is not shunned in the administrative agency arena as it is in the judicial context. In fact, agency action often demands it.”); Ammex, Inc. v. United States, 23 Ct. Int'l Trade 549, 569 n.16 (1999) (noting that the decision at issue “constitutes an exercise of `informal' rulemaking under the [APA] and, as such, is not subject to the prohibition on ex parte communications set forth in 5 U.S.C. 557(d)(1) (1994)”); Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1545-46 (9th Cir. 1993) (“The decision in [Sierra Club] that the contacts were not impermissible was based explicitly on the fact that the proceeding involved was informal rulemaking to which the APA restrictions on ex parte communications are not applicable.”).

    2014 ACUS Recommendation

    In 2014, ACUS provided best-practices guidance to agencies that a general prohibition on ex parte communications in informal rulemaking proceedings is neither required nor advisable. Ex Parte Commc'ns in Informal Rulemaking Proceedings, 79 FR 35,988, 35,994 (June 25, 2014). ACUS examined both the potential benefits and risks of ex parte communications in informal rulemaking proceedings. Regarding potential benefits, ACUS concluded that such communications

    convey a variety of benefits to both agencies and the public. . . . These meetings can facilitate a more candid and potentially interactive dialogue of key issues and may satisfy the natural desire of interested persons to feel heard. In addition, if an agency engages in rulemaking in an area that implicates sensitive information, ex parte communications may be an indispensable avenue for agencies to obtain the information necessary to develop sound, workable policies.

    Id. But ACUS also acknowledged that fairness issues can arise if certain groups have, or are perceived to have, “greater access to agency personnel than others” and that “[t]he mere possibility of non-public information affecting rulemaking creates problems of perception and undermines confidence in the rulemaking process.” Id.

    In balancing these competing considerations, ACUS urged agencies to consider placing few, if any, restrictions on ex parte communications that occur before an NPRM because communications at this stage are less likely to cause harm and more likely to “help an agency gather essential information, craft better regulatory proposals, and promote consensus building among interested persons.” Id. However, ACUS recommended that agencies establish clear procedures ensuring that all ex parte communications occurring after an NPRM, whether planned or unplanned, be disclosed. Written communications should be placed in the docket, and oral communications should be summarized and placed in the docket. Written summaries of oral communications should include the date, location, and participants of any meeting, as well as “adequate disclosure” of the communication (prepared by agency staff or private parties, with the ultimate responsibility for adequacy falling on the agency). Id. at 35,995. ACUS also suggested that agencies exercise special care regarding communications that contain “any significant new information that its decisionmakers choose to consider or rely upon.” Id.

    Board Rationale for Revising its Ex Parte Regulations

    Starting in 2015, the Board began to look at the possibility of conducting ex parte meetings in order to gain even more stakeholder input in the informal rulemaking process. As a result, the Board waived the ex parte prohibition to permit Board Members or designated Board staff to participate in ex parte communications in two proceedings.6 See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (STB served July 27, 2016); 7 U.S. Rail Serv. Issues—Performance Data Reporting (U.S. Rail Serv. Issues Nov. 2015 Decision), EP 724 (Sub-No. 4), slip op. at 2-3 (STB served Nov. 9, 2015). In both proceedings, the Board established when ex parte meetings could be scheduled and specific instructions for the scheduling and disclosure of the meetings. The Board has required written meeting summaries be prepared and docketed, although it has taken slightly different approaches in each proceeding. In EP 724 (Sub-No. 4), where stakeholder meetings were held with Board staff (rather than Board Members), the meeting summaries were prepared by Board staff and placed in the rulemaking docket. (See, e.g., Summary of Ex Parte Meeting between CSX Transp., Inc. & STB Staff, Dec. 16, 2015, U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4).) In comparison, in EP 711 (Sub-No. 1), where stakeholder meetings are being held with individual Board Members, the Board has directed the parties requesting the ex parte meetings to prepare the written summaries, which are provided, along with any handouts, to the office of the Board Member with whom the party met within two business days of the meeting and then placed in the rulemaking docket within 14 days of the meeting. (See, e.g., Summary of Ex Parte Meeting Between INEOS USA LLC & STB Member, Feb. 7, 2017, Reciprocal Switching, EP 711 (Sub-No. 1).) In both proceedings, the Board has ensured that the meeting summaries contain the date of the meeting and a list of attendees; a summary of the arguments, information, and data presented; and a copy of any handout given or presented to the Board. See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 29; see also U.S. Rail Serv. Issues Nov. 2015 Decision, EP 724 (Sub-No. 4), slip op. at 3. The Board has also ensured that meeting summaries are submitted and docketed promptly. See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (requiring meetings summaries to be submitted by parties within two business days of the meeting and noting that the Board expects to docket the meeting summaries within 14 days of the meeting); see also U.S. Rail Serv. Issues—Performance Data Reporting, Docket No. EP 724 (Sub-No. 4) (meeting summaries prepared by Board staff were generally docketed within 14 days of a meeting).

    6 Greater use of ex parte meetings in Board rulemaking proceedings was also a topic of the U.S. Senate Committee on Commerce, Science, and Transportation's August 11, 2016 hearing. See Freight Rail Reform: Implementation of the STB Reauthorization Act of 2015: Field Hearing Before the S. Comm. on Commerce, Sci., & Transp., 114th Cong. 32, 35, 46, 50-52, 57, 69, 72 (2016), https://www.thefederalregister.org/fdsys/pkg/CHRG-114shrg23228/pdf/CHRG-114shrg23228.pdf.

    7 In the Board's July 27, 2016 decision, which embraced Petition for Rulemaking to Adopt Revised Competitive Switching Rules, Docket No. EP 711, the Board terminated the proceeding in Docket No. EP 711, and all meetings with Board Members are taking place under Reciprocal Switching, Docket No. EP 711 (Sub-No. 1).

    Many stakeholders in these proceedings have expressed appreciation for the opportunity to meet with Board Members or Board staff regarding the merits of the proposed rules. See, e.g., Summary of Ex Parte Meeting Between Packaging Corp. of Am. & Acting Chairman Begeman at 3, Aug. 3, 2017, Reciprocal Switching, EP 711 (Sub-No. 1) (“The meeting concluded with . . . an acknowledgement that the ex parte meeting process on EP 711 has allowed for valuable input from shippers and their perspective on the need for a competitive rail-pricing environment that ultimately serves the public interest.”); Summary of Ex Parte Meeting Between CSX Transp. & STB Staff at 1, Dec. 16, 2015, U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4) (“CSXT hopes that there will be additional opportunities for informal discussions on Board initiatives in the future and noted that it has many informal discussions with the Federal Railroad Administration, which also does rulemakings.”). In these meetings, parties have been able to respond directly to questions from Board staff on the feasibility and utility of certain aspects of the Board's proposal. As a result of the written comments and ex parte meetings in Docket No. EP 724 (Sub-No. 4), the Board issued a supplemental NPRM significantly revising its proposed rules. See U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4), slip op. at 3 (STB served Apr. 29, 2016). Because the ex parte meetings in that proceeding better informed the agency about the often highly technical service reporting issues that were most important to commenters, the Board believes that the ultimate final rule was a better reflection of the needs and concerns of all stakeholders. The Board has every reason to expect that the ongoing meetings in EP 711 (Sub-No. 1) will prove similarly helpful and informative. The Board believes its experiences in these two cases indicate a strong desire among stakeholders to interact with the Board more informally.

    Both the developments in case law related to ex parte communications and the Board's own experiences waiving its ex parte prohibitions in the two recent proceedings discussed above provide the Board with ample support to re-examine and update its ex parte regulations to permit and govern ex parte communications in informal rulemaking proceedings. The Board's removal of its prohibition on ex parte communications would also be consistent with the more liberal approach to ex parte communications in informal rulemakings allowed under Sierra Club. First, the Board's informal rulemaking proceedings are the type of proceedings in which the court in Sierra Club found ex parte communications are not prohibited on strict due process grounds. Specifically, the Board's informal rulemakings are legislative in nature, in that they focus on policy or law to be implemented in the future and are based on various factors designed to determine what prospective rule would be most beneficial. See U.S. Rail Serv. Issues Nov. 2015 Decision, EP 724 (Sub-No. 4), slip op. at 2 n.4. The Board's informal rulemaking proceedings thus generally do not involve competing claims to a specific “valuable privilege,” which the court in Sierra Club warned would trigger due process concerns.8 Accordingly, the strict due process considerations that motivate blanket ex parte restrictions in other cases would not apply to the Board's informal rulemaking proceedings.

    8 Claims involving specific valuable privilege are more typically resolved in Board adjudications, such as rate reasonableness or unreasonable practice cases, where ex parte communications would remain prohibited.

    Second, as in Sierra Club, the Board's authorizing statute creates no procedural impediments regarding ex parte communications in informal rulemaking proceedings. The statutory authority for most of the Board's rules, the Interstate Commerce Act, does not itself prohibit ex parte communications. Indeed, 49 U.S.C. 11324(f) explicitly permits ex parte communications in major rail merger proceedings, subject to prompt placement in the public docket of the written communication or a summary of the oral communication. And 49 U.S.C. 11123 exempts the Board from the requirements of the APA altogether in emergency situations requiring immediate Board action to provide relief for service inadequacies.

    In determining whether and to what extent to permit ex parte communications in informal rulemaking proceedings, the Board must appropriately balance the benefits of allowing ex parte communications with institutional concerns regarding transparency and fairness. The benefits are evident: Ex parte communications would provide the Board with the opportunity to informally engage stakeholders, gather information, and receive the benefit of industry data and stakeholder expertise. Such informal discussions would help ensure the Board thoroughly understands stakeholder perspectives and would ultimately aid the Board in developing the most appropriate regulations. Ex parte communications would also allow stakeholders to further explain or clarify data and arguments submitted in written comments and would enable the Board to explore the nuances of those arguments by asking follow-up questions, as needed. As noted in Sierra Club, government administrators must be open, accessible, and amenable to the needs and ideas of the public. Sierra Club, 657 F.2d at 400-01. Indeed, the Board's policy decisions in informal rulemaking proceedings are guided by stakeholder input, and, as the Board has experienced in Docket Nos. EP 711 (Sub-No. 1) and EP 724 (Sub-No. 4), ex parte meetings provide a meaningful and direct way for stakeholders to share their views and for the Board Members and/or Board staff to ask specific questions, thus promoting an increased dialogue about particular issues.

    The Board recognizes that ex parte communications can also raise concerns, including that decisionmakers may be influenced by communications made in private; that interested persons may be unable to reply effectively to information presented in ex parte communications; and that certain parties may be perceived to have greater access to the agency. See infra at 7 (discussing ACUS report). However, the Board believes that these concerns can be remedied by implementing safeguards to ensure that the public record adequately reflects the evidence and argument provided during the ex parte meetings and that parties have an opportunity to respond. Such safeguards would include requiring the disclosure of any written or oral ex parte communication in a meeting summary that would be posted to the public docket and providing parties an opportunity to submit written comments in response to the summaries at the conclusion of the ex parte meeting period. Moreover, the Board could address concerns regarding the accessibility of the process by permitting ex parte meetings via telephone or video-conferencing.9

    9 Any parties in need of assistance understanding or complying with the Board's ex parte regulations—for example, locating example summaries from prior cases on the Board's Web site—would be able to contact the Board's Rail Customer and Public Assistance Program (RCPA). Among other things, RCPA assists Board stakeholders seeking guidance in complying with Board decisions and regulations. Matters brought to RCPA are handled informally by Board staff who are not reasonably expected to participate in Board decisions, and guidance offered through RCPA is not binding on the agency.

    With safeguards in place, the Board believes that the ability to communicate directly with stakeholders in informal rulemaking proceedings would enhance the Board's deliberations and better enable it to issue the most appropriate regulations in accordance with a transparent and fair record-building process. Accordingly, the Board proposes to revise its ex parte regulations to permit ex parte communications in informal rulemaking proceedings, but also to implement procedural safeguards that ensure the rulemaking process remains fair and transparent. Moreover, the Board seeks to clarify certain other aspects of its ex parte regulations that apply to proceedings other than informal rulemakings, to ensure that they provide clear guidance on how stakeholders can communicate with Board Members and staff during such proceedings.

    The Proposed Rule

    The Board proposes to make the following modifications, organized here by topic, to the Board's regulations at 49 CFR 1102.2 regarding ex parte communication. The Board proposes changes to the definitions set out in paragraph (a) of the regulations; changes to communications that are and are not prohibited; and changes to the procedures required upon receipt of prohibited communications. The Board also proposes new rules governing ex parte communications in informal rulemaking proceedings. The Board invites comment on the proposed revisions.

    Changes to Definitions

    The Board proposes to modify paragraph (a) to reflect that the revised regulations would govern, rather than prohibit all, ex parte communications. Under the existing regulations, ex parte communications are prohibited in “on-the-record proceedings.” The term “on-the-record proceeding” is defined in existing § 1102.2(a)(1) to include formal rulemaking and adjudicatory proceedings under §§ 556-57 of the APA (5 U.S.C. 556-57), as well as any matter required by the Constitution, statute, Board rule, or by decision to be decided solely on the record made in a Board proceeding. As discussed above, informal rulemaking proceedings are not expressly covered by this definition. Rather, the ICC, in effect, extended the ex parte prohibition to informal rulemaking proceedings in Revised Rules of Practice, 358 I.C.C. at 345. The proposed regulations, however, would essentially reverse this extension by no longer completely prohibiting ex parte communications in informal rulemaking proceedings, while also ensuring any ex parte communications post-NPRM would be disclosed in a transparent manner.

    To accomplish this, the Board proposes to add two new definitions to § 1102.2(a): “informal rulemaking proceeding” and “covered proceedings.” “Informal rulemaking proceeding” would include any proceeding to issue, amend, or repeal rules pursuant to 49 CFR part 1110 and 5 U.S.C. 553. “Covered proceedings” would encompass both on-the-record proceedings and informal rulemaking proceedings following the issuance of an NPRM.10 As discussed in more detail below, ex parte communications would be permitted in informal rulemaking proceedings (subject to disclosure requirements for those communications occurring post-NPRM), but would remain prohibited in on-the-record proceedings.

    10 Accordingly, the Board proposes to replace references to “on-the-record proceedings” with “covered proceedings,” as appropriate, throughout § 1102.2.

    The proposed language would also redefine an ex parte communication as “an oral or written communication that concerns the merits or substantive outcome of a pending proceeding; is made without notice to all parties and without an opportunity for all parties to be present; and could or is intended to influence anyone who participates or could reasonably be expected to participate in the decision.” This new definition would alter the existing definition in two significant ways. First, the existing concept that communications are only ex parte if made “by or on behalf of a party” would be removed. The Board proposes eliminating this phrase because communications that concern the merits or substantive outcome of a proceeding, even if they are not made by a formal party to the proceeding or on behalf of such a party, could nonetheless have the potential to impact a proceeding. Second, the proposed new definition would remove the suggestion that an ex parte communication that is made with the “consent of any other party” could be permissible. The Board believes it is more appropriate for the Board, rather than other parties, to determine whether to permit ex parte communications.11

    11 The Board also proposes some modifications for syntax purposes. In particular, to reflect the revised definition of “ex parte communication,” which incorporates the fact that ex parte communications “concern[ ] the merits or the substantive outcome of a pending proceeding,” the Board proposes to remove the phrase “concerning the merits of a proceeding” (and the like) from the remainder of § 1102.2. For example, where existing paragraph (c)(2) states “knowingly entertain any ex parte communication concerning the merits of a proceeding,” the proposed rules would only state “knowingly entertain any ex parte communication.”

    These revisions would not change the generally understood concept that certain communications, by their very nature, do not concern the merits or substantive outcome of pending proceedings or are not made to Board Members or staff who are reasonably expected to participate in Board decisions. For example, communications that do not raise issues include communications about purely procedural issues; public statements or speeches by Board Members or staff that merely provide general and publicly available information about a proceeding; communications that solely concern the status of a proceeding; and communications with the Board's RCPA.

    Communications That Are Not Prohibited

    Paragraph (b), as currently written, permits certain types of communications that do not appear to threaten transparency or fairness but that may also have an impact on a proceeding. Such communications include information from the news media and facts or contentions that are general in nature. See 49 CFR 1102.2(b)(2), (3). The Board proposes to amend this paragraph to include additional categories of ex parte communications that are permissible and would not be subject to the proposed disclosure requirements of proposed paragraphs (e) and (g), discussed below. Proposed additions to this category include communications related to an informal rulemaking proceeding prior to the issuance of an NPRM; communications related to the Board's implementation of the National Environmental Policy Act and related environmental laws; and communications concerning judicial review of a matter that has already been decided by the Board made between parties to the litigation and the Board or Board staff involved in that litigation.

    Regarding ex parte communications prior to the issuance of an NPRM, the proposed rules would allow for unconstrained ex parte communications in informal rulemaking proceedings until an NPRM is issued. The Board believes that free-flowing communications with stakeholders should be encouraged during the exploratory, pre-NPRM phase of a rulemaking proceeding. Some rulemaking proceedings have been initiated by the Board with a general request for comments or an informational hearing designed to allow the Board to obtain preliminary stakeholder input regarding certain broad topics. See R.R. Revenue Adequacy, EP 722 (STB served April 2, 2014); Review of Rail Access & Competition Issues—Renewed Pet. of the W. Coal Traffic League, EP 575 (STB served June 2, 2006); see also Review of the STB's Gen. Costing Sys., EP 431 (Sub-No. 3) (STB served Apr. 6, 2009). When such preliminary or general decisions have been issued, the applicability of the Board's ex parte prohibitions has been unclear, and this ambiguity has caused confusion. The Board proposes to clarify that, during the pre-NPRM phase of an informal rulemaking proceeding, it is not necessary to limit (or subject to strict disclosure requirements) informal communications with individual stakeholders regarding such general topics because, as noted by ACUS, pre-NPRM ex parte communications do not implicate administrative or due process concerns. Information gathered in a pre-NPRM ex parte meeting that the Board incorporates or relies upon in its proposal should be evident in the NPRM itself, and the public would have the opportunity to examine and respond to that information.12 For these reasons, the Board believes that such communications, which could assist the Board in the preliminary stages of a rulemaking proceeding, should be encouraged.

    12 For example, in Docket No. EP 733, Expediting Rate Cases, Board staff held informal meetings with stakeholders in April 2016 to explore ideas on how the Board could expedite rate reasonableness cases. The goal of the informal discussions was to enhance Board staff's perspective on strategies and pathways to expedite and streamline rate cases. The Board utilized feedback received during the informal meetings to generate ideas, which were incorporated into an advance notice of proposed rulemaking. Expediting Rate Cases, EP 733, slip op. at 2 (STB served June 15, 2017); see also id. at 3 (proposing standardized discovery requests in light of statements by several stakeholders in the informal meetings that standardizing discovery would help expedite rate cases and reduce the number of disputes). Parties were permitted to comment on the details of the proposal, including those stemming from feedback gathered in the informal meetings. Id. at 1.

    Additionally, communications related to environmental laws and communications regarding judicial review of matters already decided by the Board are being added to codify existing and well-accepted practices. The Board's environmental review process “is necessarily informal and all-inclusive and depends on cooperative consultations with the [license] applicant as well as other agencies and other interested parties with expertise, so that all possible environmental information, issues, and points of view will come before the agency.” San Jacinto Rail Ltd. Constr. Exemption & BNSF Operation Exemption—Build-Out to the Bayport Loop Near Houston, Harris Cty., Tex., FD 34079, slip op. at 3 (STB served Dec. 3, 2002) (finding that a letter sent as part of the environmental review process did not constitute an ex parte communication). Accordingly, the Board proposes to clarify that communications related solely to the preparation of environmental review documents, such as Environmental Impact Statements and Environmental Assessments, are not ex parte communications. In addition, once a Board decision has been appealed in court, it is both necessary and proper for there to be communication between the agency and other litigants concerning litigation issues.

    Lastly, paragraph (b)(1) of the current regulation permits any communication “to which all the parties to the proceeding agree.” The Board proposes to modify the existing regulations to remove this language because, as noted above, the Board believes it is more appropriate for the Board, rather than other parties, to determine whether to permit ex parte communications.

    Communications That Are Prohibited

    The Board proposes to make changes in paragraph (c) that either clarify the existing regulations or modify them to reflect that some ex parte communications, such as those in informal rulemakings, would be permitted under the proposed amendments.

    In paragraph (c)(1), the Board proposes to add an introductory clause, “[e]xcept to the extent permitted by these rules” to reflect the fact that the revised rules would govern, but not entirely prohibit, ex parte communications.

    The Board also proposes to amend paragraph (d) to clarify when the ex parte prohibitions take effect. The language of the existing regulations ties ex parte communications governance to the noticing for oral hearing or the taking of evidence by modified procedure. The Board believes that more general “docketing” triggers would better reflect the various ways Board proceedings are initiated. Thus, under the proposed rule, the prohibitions against ex parte communications in on-the-record proceedings would apply when the first filing or Board decision in a proceeding is posted to the public docket or when the person responsible for a communication knows that the first filing has been filed with the Board, whichever occurs first. In informal rulemaking proceedings, except as provided in the new paragraph (g), discussed in more detail below, the prohibitions on ex parte communications would apply when the Board issues an NPRM.

    The Board also proposes to clarify that ex parte prohibitions in covered proceedings remain in effect until the proceeding is no longer subject to administrative reconsideration under 49 U.S.C. 1322(c) or judicial review.

    Procedures Upon Receipt of Prohibited Ex Parte Communications

    The Board proposes revisions to paragraphs (e) and (f), which entail the procedures required of Board Members and employees upon receipt of prohibited ex parte communications and sanctions, to reflect the fact that some ex parte communications would be permissible under the revised regulation. First, the proposed rules would clarify that the procedures in paragraphs (e)(1) and (2) apply to “[a]ny Board Member, hearing officer or Board employee” who receives an ex parte communication. Second, the procedures set forth in existing paragraphs (e) and (f) would now apply only to communications not otherwise permitted by the regulation. Lastly, the Board proposes to amend the provision in paragraph (e)(1), which requires the Chief of the Office of Proceedings' Section of Administration to place any written communication or a written summary of an oral communication not permitted by these regulations in the public correspondence file, to also require that such placements be made “promptly” and contain a label indicating that the prohibited ex parte communication is not part of the decisional record of the proceeding.

    Ex Parte Communications in Informal Rulemaking Proceedings

    The Board proposes to add a new paragraph (g) specifically governing ex parte communications in informal rulemaking proceedings that occur following the issuance of an NPRM, at which point disclosure requirements would attach. Under the proposed rule, ex parte communications with Board Members in informal rulemaking proceedings following the issuance of an NPRM would be permitted, subject to disclosure requirements, until 20 days before the deadline for reply comments to the NPRM, unless otherwise specified by the Board. The Board may delegate its participation in such ex parte communications to Board staff. See e.g., U.S. Rail Serv. Issues Nov. 2015 Decision, EP 724 (Sub-No. 4). Ex parte communications in informal rulemaking proceedings that occur outside of the permitted meeting period, that occur with Board staff where such participation has not been delegated, or that do not comply with the required disclosure requirements would be subject to the sanctions provided in paragraph (f). To schedule meetings, parties should contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or the Board Member office with whom the meeting is requested, unless otherwise specified by the Board.

    As discussed in more detail above, prompt and effective disclosure of ex parte communications in informal rulemaking proceedings would balance the Board's desire to obtain more stakeholder input through informal interactions while ensuring transparency and fairness. Accordingly, the proposed rules would require that the substance of each ex parte meeting be disclosed by the Board by posting in the docket of the proceeding a written meeting summary of the arguments, information, and data presented at each meeting and a copy of any handouts given or presented. The meeting summary would also disclose basic information about the meeting including the date and location of the ex parte communication (or means of communication in the case of telephone calls or video-conferencing) and a list of attendees/participants.

    The proposed rules would also provide that the meeting summaries be sufficiently detailed to describe the substance of the ex parte communication. The Board's intent is to create a requirement that ensures that summaries are not merely lists of the topics discussed but rather contain the arguments made and information presented. The proposed rules provide that presenters may be required to resubmit summaries that are insufficiently detailed or that contain inaccuracies as to the substance of the presentation, thus ensuring that the Board attendees at the meeting retain the responsibility of adequate disclosure, as recommended by ACUS. It is the Board's preliminary view that stakeholders do not need further formal instructions in order to provide appropriately detailed summaries, but parties may comment on whether more specific instructions on the format or content of meeting summaries would be appropriate.13

    13 In addition, stakeholders may find the Board-staff prepared summaries in U.S. Rail Serv. Issues—Performance Data Reporting, Docket No. EP 724 (Sub-No. 4), to be helpful examples regarding the appropriate level of detail.

    The proposed rules provide that a single meeting summary may be submitted to the Board even if multiple parties, persons, or counsel are involved in the same ex parte meeting. In such instances, it would be the responsibility of the person submitting the summary to ensure that all other parties at the meeting agree to the form and content of the summary. This provision is intended to provide an efficient way for parties with aligned interests to make joint presentations to Board Members or Board staff in the same way they are able to make such presentations via written pleadings. Likewise, the proposed rules would permit parties to present confidential information during ex parte meetings. If the presentations contain material that a party asserts is confidential under an existing protective order governing the proceeding, parties would be required to present a public version and a confidential version of ex parte summaries and any handouts. Just as parties use the redacted, public versions of written filings to vet arguments presented in written comments, parties likewise could use redacted, public versions of the meeting summaries to vet the arguments and information shared with the Board during ex parte meetings. Parties would have the opportunity to respond to any information contained in the meeting summaries in their written NPRM reply comments. To ensure that parties have sufficient time to respond to the meeting summaries, as noted, the Board is proposing that the meetings occur at least 20 days before the deadline for reply comments to the NPRM, unless otherwise specified by the Board. If a protective order has not been issued in the proceeding at the time the presenter seeks to file a meeting summary or handout containing confidential information, the presenting party must file a request with the Board seeking such an order no later than the date it submits its meeting summary.

    The Board also believes it is important that meeting summaries be submitted as soon after the meetings occur as practicable. The entire substance of communications is best recalled if they are recorded soon after the meeting or presentation. Moreover, if meeting summaries are submitted promptly, the Board will be able to post them promptly, which will ensure that all interested stakeholders will have sufficient time to review the summaries. Accordingly, the proposed rules would require parties to submit summaries within two business days of an ex parte presentation or meeting. The rules also provide that the Board would post the summaries within seven days of submission of a summary that is complete for posting.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. §§ 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, § 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” § 605(b). Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The proposed regulation would not create a significant impact on a substantial number of small entities.14 The proposed regulations provide for participation in ex parte communications with the Board in informal rulemaking proceedings to provide stakeholders with an alternative means of communicating their interests to the Board in a transparent and fair manner. When a party chooses to engage in ex parte communications with the Board in an informal rulemaking proceeding, the requirements contained in these proposed regulations do not have a significant impact on participants, including small entities. While the proposed rules would require parties to provide written summaries of the ex parte communications, based on the Board's experiences in EP 711 (Sub-No. 1) and EP 724 (Sub-No. 4), the summary documentation is a minimal burden. The meeting summaries are generally only a few pages long (excluding copies of handouts from the meetings that were attached). For example, the meeting summaries the Board received in EP 724 (Sub-No. 4) ranged from two to six pages in length. Of those summaries, nearly half were just two pages long. Likewise, in EP 711 (Sub-No. 1), the meeting summaries range from one to four pages in length, with the majority of those summaries being three or fewer pages long. For these reasons, the proposed rule would not place any significant burden on small entities.

    14 Effective June 30, 2016, for the purpose of RFA analysis for rail carriers subject to Board jurisdiction, the Board defines a “small business” as only including those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member Begeman dissenting). Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $35,809,698 or less when adjusted for inflation using 2016 data. Class II rail carriers have annual operating revenues of less than $250 million in 1991 dollars or less than $447,621,226 when adjusted for inflation using 2016 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.

    List of Subjects in 49 CFR Part 1102

    Administrative practice and procedure.

    It is ordered:

    1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register.

    2. The procedural schedule is established as follows: Comments regarding the proposed rules are due by November 1, 2017; replies are due by November 16, 2017.

    3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    4. This decision is effective on the day of service.

    Decided: September 26, 2017.

    By the Board, Board Member Begeman, Elliott, and Miller.

    Jeffrey Herzig, Clearance Clerk.

    For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend 49 CFR part 1102 as follows:

    49 CFR PART 1102—COMMUNICATIONS 1. The authority citation for part 1102 is revised to read as follows: Authority:

    49 U.S.C. 1321.

    2. Amend § 1102.2 as follows: a. Revise the section heading; b. In paragraph (a), redesignate paragraphs (a)(2) and (3) as paragraphs (a)(4) and (5) and add new paragraphs (2) and (3); c. Revise newly redesignated paragraph (a)(5); d. Revise paragraph (b) introductory text; e. Revise paragraph (b)(1); f. Redesignate paragraphs (b)(2) and (3) as paragraphs (b)(3) and (4), and add new paragraphs (b)(2), (5), and (6); g. Revise newly designated paragraphs (b)(3) and (4); h. Revise paragraphs (c) introductory text, (c)(1), (c)(2), and (d); i. Revise paragraph (e); j. In paragraph (f)(1), remove “concerning the merits of a proceeding”; k. In paragraph (f)(2), add “covered” before the word “proceeding”; l. Revise paragraph (f)(3); and m. Add a new paragraph (g).

    The revisions and additions read as follows:

    § 1102.2 Procedures governing ex parte communications.

    (a) * * *

    (2) “Informal rulemaking proceeding” means a proceeding to issue, amend, or repeal rules pursuant to 5 U.S.C. 553 and part 1110 of this chapter.

    (3) “Covered proceedings” means on-the-record proceedings and informal rulemaking proceedings following the issuance of a notice of proposed rulemaking.

    (5) “Ex parte communication” means an oral or written communication that concerns the merits or substantive outcome of a pending proceeding; is made without notice to all parties and without an opportunity for all parties to be present; and could or is intended to influence anyone who participates or could reasonably be expected to participate in the decision.

    (b) Ex parte communications that are not prohibited and need not be disclosed.

    (1) Any communication that the Board formally rules may be made on an ex parte basis;

    (2) Any communication occurring in informal rulemaking proceedings prior to the issuance of a notice of proposed rulemaking;

    (3) Any communication of facts or contention which has general significance for a regulated industry if the communicator cannot reasonably be expected to have known that the facts or contentions are material to a substantive issue in a pending covered proceeding in which it is interested;

    (4) Any communication by means of the news media that in the ordinary course of business of the publisher is intended to inform the general public, members of the organization involved, or subscribers to such publication with respect to pending covered proceedings;

    (5) Any communications related solely to the preparation of documents necessary for the Board's implementation of the National Environmental Policy Act and related environmental laws, pursuant to part 1105 of this chapter;

    (6) Any communication concerning judicial review of a matter that has already been decided by the Board made between parties to the litigation and the Board or Board staff who are involved in that litigation.

    (c) General Prohibitions.

    (1) Except to the extent permitted by these rules, no party, counsel, agent of a party, or person who intercedes in any covered proceeding shall engage in any ex parte communication with any Board Member, hearing officer, or Board employee who participates, or who may reasonably be expected to participate, in the decision in the proceeding.

    (2) No Board Member, hearing officer, or Board employee who participates, or is reasonably expected to participate, in the decision in a covered proceeding shall invite or knowingly entertain any ex parte communication or engage in any such communication to any party, counsel, agent of a party, or person reasonably expected to transmit the communication to a party or party's agent.

    (d) When prohibitions take effect. In on-the-record proceedings, the prohibitions against ex parte communications apply from the date on which the first filing or Board decision in a proceeding is posted to the public docket by the Board, or when the person responsible for the communication has knowledge that such a filing has been filed, or at any time the Board, by rule or decision, specifies, whichever occurs first. In informal rulemaking proceedings, except as provided in paragraph (g) of this section, the prohibitions against ex parte communications apply following the issuance of a notice of proposed rulemaking. The prohibitions in covered proceedings continue until the proceeding is no longer subject to administrative reconsideration under 49 U.S.C. 1322(c) or judicial review.

    (e) Procedure required of Board Members and Board staff upon receipt of prohibited ex parte communications.

    (1) Any Board Member, hearing officer, or Board employee who receives an ex parte communication not permitted by these regulations must promptly transmit either the written communication, or a written summary of the oral communication with an outline of the surrounding circumstances to the Chief, Section of Administration, Office of Proceedings, Surface Transportation Board. The Section Chief shall promptly place the written material or summary in the correspondence section of the public docket of the proceeding with a designation indicating that it is a prohibited ex parte communication that is not part of the decisional record.

    (2) Any Board Member, hearing officer, or Board employee who is the recipient of such ex parte communication may request a ruling from the Board's Designated Agency Ethics Official as to whether the communication is a prohibited ex parte communication. The Designated Agency Ethics Official shall promptly reply to such requests. The Chief, Section of Administration, Office of Proceedings, shall promptly notify the Chairman of the Board of such ex parte communications sent to the Section Chief. The Designated Agency Ethics Official shall promptly notify the Chairman of all requests for rulings sent to the Designated Agency Ethics Official. The Chairman may require that any communication be placed in the correspondence section of the docket when fairness requires that it be made public, even if it is not a prohibited communication. The Chairman may direct the taking of such other action as may be appropriate under the circumstances.

    (f) * * *

    (1) The Board may censure, suspend, or revoke the privilege of practicing before the agency of any person who knowingly and willfully engages in or solicits prohibited ex parte communication.

    (2) The relief or benefit sought by a party to a covered proceeding may be denied if the party or the party's agent knowingly and willfully violates these rules.

    (3) The Board may censure, suspend, dismiss, or institute proceedings to suspend or dismiss any Board employee who knowingly and willfully violates these rules.

    (g) Ex parte communications in informal rulemaking proceedings; disclosure requirements.

    (1) Notwithstanding paragraph (c) of this section, ex parte communications with Board Members in informal rulemaking proceedings are permitted after the issuance of a notice of proposed rulemaking and until 20 days before the deadline for reply comments set forth in the notice of proposed rulemaking, unless otherwise specified by the Board in procedural orders governing the proceeding. The Board may delegate its participation in such ex parte communications to Board staff. All such ex parte communications must be disclosed in accordance with paragraph (g)(4) of this section. Any person who engages in such ex parte communications must comply with any schedule and additional instructions provided by the Board in the proceeding. Communications that do not comply with this section or with the schedule and instructions established in the proceeding are not permitted and are subject to the procedures and sanctions in paragraphs (e) and (f) of this section.

    (2) To schedule ex parte meetings permitted under paragraph (g)(1) of this section, parties should contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance or the Board Member office with whom the meeting is requested, unless otherwise specified by the Board.

    (3) Parties seeking to present confidential information during an ex parte communication must inform the Board of the confidentiality of the information at the time of the presentation and must comply with the disclosure requirements in paragraph (g)(4)(iv) of this section.

    (4) The following disclosure requirements apply to ex parte communications permitted under paragraph (g)(1) of this section:

    (i) Any person who engages in ex parte communications in an informal rulemaking proceeding shall submit to the Board Member office or delegated Board staff with whom the meeting was held a memorandum that states the date and location of the communication; lists the names and titles of all persons who attended (including via phone or video) or otherwise participated in the meeting during which the ex parte communication occurred; and summarizes the data and arguments presented during the ex parte communication. Any written or electronic material shown or given to Board Members or Board staff during the meeting must be attached to the memorandum.

    (ii) Memoranda must be sufficiently detailed to describe the substance of the presentation. Board Members or Board staff may ask presenters to resubmit memoranda that are not sufficiently detailed.

    (iii) If a single meeting includes presentations from multiple parties, counsel, or persons, a single summary may be submitted so long as all presenters agree to the form and content of the summary.

    (iv) If a memorandum, including any attachments, contains information that the presenter asserts is confidential, the presenter must submit a public version and a confidential version of the memorandum. If there is no existing protective order governing the proceeding, the presenter must, at the same time the presenter submits its public and redacted memoranda, file a request with the Board seeking such an order pursuant to § 1104.14 of this chapter.

    (v) Memoranda must be submitted to the Board in the manner prescribed no later than two business days after the ex parte communication.

    (vi) Ex parte memoranda submitted under this section will be posted on the Board's Web site in the docket for the informal rulemaking proceeding within seven days of submission. If a presenter has requested confidential treatment for all or part of a memorandum, only the public version will appear on the Board's Web site. Persons seeking access to the confidential version must do so pursuant to the protective order governing the proceeding.

    [FR Doc. 2017-21093 Filed 9-29-17; 8:45 am] BILLING CODE 4915-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R6-ES-2016-0013: FXES11130900000C6-178-FF09E30000] RIN 1018-BB41 Endangered and Threatened Wildlife and Plants; Removing Astragalus desereticus (Deseret Milkvetch) From the Federal List of Endangered and Threatened Plants AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule and 12-month petition finding; request for comments.

    SUMMARY:

    The best available scientific and commercial data indicate that threats to Astragalus desereticus (Deseret milkvetch) identified at the time of listing in 1999 are not as significant as originally anticipated and are being adequately managed. Therefore, the species no longer meets the definition of an endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). Consequently, we, the U.S. Fish and Wildlife Service (Service), propose to remove (delist) Astragalus desereticus from the Federal List of Endangered and Threatened Plants (List). This determination is based on a thorough review of all available information, which indicates that this species' population is much greater than was known at the time of listing in 1999 and that threats to this species have been sufficiently minimized. This document also serves as the 12-month finding on a petition to remove this species from the List. We are seeking information, data, and comments from the public on the proposed rule to remove the Astragalus desereticus from the List.

    DATES:

    We will accept comments received or postmarked on or before December 1, 2017. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES below), must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by November 16, 2017.

    ADDRESSES:

    You may submit written comments on the proposed rule and the draft post-delisting monitoring plan by one of the following methods:

    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R6-ES-2016-0013, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on the blue “Comment Now!” box. If your comments will fit in the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our comment review procedures. If you attach your comments as a separate document, our preferred file format is Microsoft Word. If you attach multiple comments (such as form letters), our preferred formation is a spreadsheet in Microsoft Excel.

    By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-6-ES-2016-0013; U.S. Fish and Wildlife Service; MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you submit written comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below for more details).

    Document availability: This proposed rule and supporting documents, including a copy of the draft post-delisting monitoring plan referenced throughout this document, are available on http://www.regulations.gov at Docket No. FWS-R6-ES-2016-0013. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours at the Utah Ecological Services Field Office; 2369 Orton Circle, Suite 50; West Valley City, Utah 84119, telephone: 801-975-3330. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    FOR FURTHER INFORMATION CONTACT:

    Larry Crist, Field Supervisor, telephone: 801-975-3330. Direct all questions or requests for additional information to: DESERET MILKVETCH QUESTIONS, U.S. Fish and Wildlife Service; Utah Ecological Services Field Office; 2369 Orton Circle, Suite 50; West Valley City, Utah 84119. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 800-877-8337 for TTY assistance.

    SUPPLEMENTARY INFORMATION: Executive Summary

    Why we need to publish a rule. Under the Act, if a species is determined no longer to be threatened or endangered throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. Removing a species from the List can only be completed by issuing a rule.

    This document proposes delisting Astragalus desereticus. This proposed rule assesses the best available information regarding status of and threats to the species.

    The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any one or more of five factors or the cumulative effects thereof: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. We have determined that Astragalus desereticus no longer meets the definition of an endangered or threatened species under the Act.

    We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on our listing proposal. Because we will consider all comments and information received during the comment period, our final determination may differ from this proposal.

    Information Requested Public Comments

    We want any final rule resulting from this proposal to be as accurate as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible. We particularly seek comments concerning:

    (1) Reasons why we should or should not remove Astragalus desereticus from the List of Endangered and Threatened Plants (i.e., “delist” the species) under the Act;

    (2) New biological or other relevant data concerning any threat (or lack thereof) to this species (for example, those associated with climate change);

    (3) New information on any efforts by the State or other entities to protect or otherwise conserve the species;

    (4) New information concerning the range, distribution, and population size or trends of this species;

    (5) New information on the current or planned activities in the habitat or range that may adversely affect or benefit the species; and

    (6) Information pertaining to the requirements for post-delisting monitoring of Astragalus desereticus.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, may not meet the standard of information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.), which directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.

    You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES.

    We will post your entire comment--including your personal identifying information--on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES. We will schedule public hearings on this proposal, if any are requested, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

    Peer Review

    In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate and independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. We will ensure that the opinions of peer reviewers are objective and unbiased by following the guidelines set forth in the Director's Memo, which updates and clarifies Service policy on peer review (U.S. Fish and Wildlife Service 2016). The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, our final decision may differ from this proposal.

    Previous Federal Actions

    In 1975, the Smithsonian Institution prepared a report on plants considered to be endangered, threatened, or extinct. On July 1, 1975, we published a notice in the Federal Register accepting the Smithsonian report as a petition to list those taxa named, including Astragalus desereticus (40 FR 27823). On June 16, 1976, we published a proposed rule to designate approximately 1,700 vascular plants, including Astragalus desereticus, as endangered pursuant to section 4 of the Act (41 FR 24523). On December 10, 1979, we published a notice of withdrawal for species that had not had a final rule published, including Astragalus desereticus (44 FR 70796). On December 15, 1980, we published a revised notice of review for native plants designating Astragalus desereticus as a category 1 candidate species (taxa for which we had sufficient information to support preparation of listing proposals); Astragalus desereticus was also identified as a species that may have recently become extinct (45 FR 82480). In 1981, a population of Astragalus desereticus was re-discovered. On November 28, 1983, we published a revised notice of review in which Astragalus desereticus was included as a category 2 candidate species for which additional information on distribution and abundance was needed (48 FR 53640). That designation was maintained in two subsequent notices of review (50 FR 39526, September 27, 1985, and 55 FR 6184, February 21, 1990). Following additional surveys, the species was reclassified as a category 1 candidate on September 30, 1993 (58 FR 51144). On February 28, 1996, we ceased using category designations and included Astragalus desereticus as a candidate species (61 FR 7596). A final rule listing Astragalus desereticus as threatened published in the Federal Register on October 20, 1999 (64 FR 56590); the rule was effective November 19, 1999. The final listing rule included a determination that the designation of critical habitat for Astragalus desereticus was not prudent.

    On July 5, 2005, the Center for Native Ecosystems, Forest Guardians, and the Utah Native Plant Society filed a complaint in the U.S. District Court for the District of Columbia challenging our October 20, 1999, determination that designating critical habitat was not prudent due to the lack of benefit to Astragalus desereticus (Center for Native Ecosystems, Forest Guardians, and Utah Native Plant Society v. Gale Norton (05-CV-01336-RCL)). In response to a stipulated settlement agreement, on January 25, 2007, we published an advanced notice of proposed rulemaking stating that designating critical habitat would not be beneficial to the species and recommending removal of the species from the List of Endangered and Threatened Plants because threats to the species identified in the final listing rule were not as significant as earlier believed and were managed such that the species was not likely to become in danger of extinction throughout all or a significant portion of its range in the foreseeable future (72 FR 3379).

    In 2011, we completed a 5-year review of the species to evaluate its status and determined that threats to the species either were not as significant as we had anticipated or had failed to develop; consequently, we recommended delisting (U.S. Fish and Wildlife Service 2011, entire). On October 6, 2015, we received a petition (Western Area Power Administration 2015) to delist the species based on our 2007 recommendation to remove the species from the List of Endangered and Threatened Plants and supported by additional surveys and by recommendations to delist in our 2011 5-year review for the species (72 FR 3379, January 25, 2007; U.S. Fish and Wildlife Service 2011, p. 22). On March 16, 2016, we published a notice of petition findings and initiation of status reviews for 29 species, including Astragalus desereticus, which found that the petition presented substantial information indicating that delisting may be warranted (81 FR 14058). This proposed rule presents our conclusions from a status review of the species and serves as the 12-month finding on the petition to delist the species.

    Species Description and Habitat Information

    Astragalus desereticus was first collected in 1893, again in 1909, then not located again until 1981 (Barneby 1989, p. 126; Franklin 1990, p. 2). The gap in collections may be due to confusion regarding initial records, which were wrongly attributed to Sanpete County, Utah (Franklin 1990, p. 2). The 1964 description and classification of Astragalus desereticus by Barneby is the accepted taxonomic status (Barneby 1989, p. 126; ITIS 2015).

    Astragalus desereticus is a perennial, herbaceous plant in the legume family with silvery-gray pubescent leaves that are 2-5 inches (in) (4-12 centimeters (cm)) long and flower petals that are white to pinkish with lilac-colored tips (Barneby 1989, p. 126). The flower structure indicates an adaptation to pollination primarily by large bees, likely bumblebees (Bombus spp.), which are generalist pollinators (Stone 1992, p. 4). The species appears to be tolerant of drought (Stone 1992, p. 3). A more detailed description of the biology and life history of Astragalus desereticus can be found in our 5-year review of the species (U.S. Fish and Wildlife Service 2011, pp. 5-7).

    Astragalus desereticus is endemic to Utah County in central Utah, with the only known population near the town of Birdseye (Stone 1992, p. 2). It occurs exclusively on sandy-gravelly soils weathered from the Moroni geological formation, which is limited to an area of approximately 100 square miles (mi2) (259 square kilometers (km2)) (Franklin 1990, p. 4; Stone 1992, p. 3). The species is known to occur at elevations of 5,400-5,700 feet (ft) (1,646-1,737 meters (m)) (Stone 1992, p. 2; Anderson 2016, pers. comm.; Fitts 2016, pers. comm.). Based upon the species' narrow habitat requirements it has likely always been rare, with minimal additional potential habitat (Franklin 1990, p. 6; Stone 1992, p. 6).

    Astragalus desereticus is typically is found on steep south- and west-facing slopes with scattered Colorado pinyon pine (Pinus edulis) and Utah juniper (Juniperus osteosperma) (Franklin 1990, p. 2). It also can grow well on west-facing road-cuts where plants are typically larger than those found in undisturbed habitat (Franklin 1990, p. 2). The species' habitat is typically sparsely vegetated (SWCA Environmental Consultants 2015, p. 7). The species is an apparent associate of the pinyon-juniper plant community; it is not shade-tolerant, but is found in open areas between trees where the geologic substrate is most likely the habitat feature to which these plants respond (Goodrich et al. 1999, p. 265).

    Astragalus desereticus is probably a relatively new species on the scale of geologic time that has always occurred in a restricted habitat (a localized neoendemic) based on the ability of the genus to colonize disturbed or unstable habitats in dry climates. This ability has likely hastened evolution of the genus and given rise to many species of Astragalus that are sharply differentiated and geographically restricted (Stone 1992, p. 6). Astragalus desereticus appears to tolerate at least some disturbance, such as that caused by road maintenance activities (Franklin 1990, p. 2; Fitts and Fitts 2009, p. 5).

    Species Abundance, Distribution, and Trends

    In 1990, surveys for Astragalus desereticus estimated fewer than 5,000 plants in a single population (Franklin 1990, p. 3). A subsequent visit to the same site in 1992 estimated more than 10,000 plants, indicating that a large seed bank likely exists (Stone 1992, p. 7). Consequently, at the time of listing we estimated a total population of 5,000-10,000 plants (64 FR 56591, October 20, 1999).

    A combination of survey and census was conducted by the Utah Natural Heritage Program in 2008 to visit unsurveyed, suitable habitat and to provide a total population estimate for the species (Fitts 2008, p. 1). The surveyors found new plant sites (hereafter referred to as a colony) to the north and west of the previously known population. Due to higher plant numbers than expected, only small colonies and one large colony were censused; plant numbers at the remaining large colonies were estimated based on a partial census of 20 percent of the site. The total population estimate was 152,229 plants--including seedlings, juveniles, and adults (Fitts and Fitts 2009, p. 4). It was also noted that the number of plants counted in the original area surveyed in 1990 was greater in 2008 than numbers counted previously (Fitts and Fitts 2009, p. 4). In 2009, surveys were expanded and the updated total population estimate was 197,277-211,915 juvenile and adult plants (Fitts and Fitts 2010, p. 6). More plants likely occurred on private land with exposed Moroni Formation outcrops, but the land owner did not give permission to survey (Fitts and Fitts 2010, p. 7). These surveys may have overestimated the species' population using the partial census method due to extrapolation from earlier hand-drawn colony boundaries; the small number of transects; and the inclusion of seedlings, which have a high rate of mortality (U.S. Fish and Wildlife Service 2011, p. 10). If only adults were counted, the population estimate was 86,775-98,818 plants (U.S. Fish and Wildlife Service 2011, p. 10). In 2016, surveys were conducted; those data are still being analyzed. However, we expect to have the 2016 survey results included in the final delisting determination.

    At the time of listing, we estimated the occupied habitat of Astragalus desereticus to include approximately 300 acres (ac) (122 hectares (ha)) in an area 1.6 mi (2.6 km) × 0.3 mi (0.5 km) (64 FR 56591, October 20, 1999). The most recent occupied habitat estimate is approximately 345 ac (140 ha) in an area 2.8 mi (4.5 km) × 0.3 mi (0.5 km) (Fitts and Fitts 2010, p. 6; SWCA Environmental Consultants 2015, p. 2). The species remains known from one population (Birdseye) of scattered colonies on the Moroni formation soils near Birdseye, Utah (U.S. Fish and Wildlife Service 2011, p. 8).

    The limited number of surveys and censuses completed for Astragalus desereticus, as well as differences in the size of area investigated, prevent a detailed assessment of population trends. However, the available information indicates a larger population since at least 1990 when the first surveys were conducted.

    Land Ownership

    An estimated 230 ac (93 ha) (67 percent) of the 345 ac (140 ha) of total habitat for Astragalus desereticus are in the Birdseye Unit of the Northwest Manti Wildlife Management Area owned by the Utah Division of Wildlife Resources (UDWR); the Utah Division of Transportation (UDOT) owns 25 ac (10 ha) (7 percent); and 90 ac (36 ha) (26 percent) are privately owned (UDWR et al. 2006, p. 4). Utah School and Institutional Trust Lands Administration (SITLA) owns most of the mineral rights in the species' habitat (UDWR et al. 2006, p. 7). Surveys in 1990 and 2016 did not locate the species on Federal lands (Franklin 1990, pp. 3-4; Anderson 2016, pers. comm.).

    Conservation Efforts

    A recovery plan for Astragalus desereticus was not prepared; therefore, specific delisting criteria were not developed for the species. However, in 2005, we invited agencies with management or ownership authorities within the species' habitat to serve on a team to develop an interagency conservation agreement for Astragalus desereticus intended to facilitate a coordinated conservation effort between the agencies (UDWR et al. 2006, entire). The Conservation Agreement for Deseret milkvetch (Astragalus desereticus) (Conservation Agreement) was signed and approved by UDWR, UDOT, SITLA, and the Service in 2006 and will remain in effect for 30 years. The Conservation Agreement provides guidance to stakeholders to address threats and establish goals to ensure long-term survival of the species (UDWR et al. 2006, p. 7). Conservation actions contained in the Conservation Agreement (in italics), efforts to accomplish these actions, and their current status are described below.

    Maintain species' habitat within the Wildlife Management Area in its natural state, restricting habitat disturbance: This action is successful and ongoing. UDWR acquired the Birdseye Unit of the Northwest Manti Wildlife Management Area in 1967; prior to this acquisition, livestock grazing occurred for more than 50 years in the vicinity (UDWR et al. 2006, p. 6). Since acquisition, livestock grazing has been used on a limited basis as a management tool by UDWR; however, Astragalus desereticus occupied habitat is not suitable for grazing, and impacts to the species have been negligible (UDWR et al. 2006, p. 7). This habitat has not been grazed by livestock since 2002 (U.S. Fish and Wildlife 2011, p. 17). Future grazing within occupied habitat is unlikely due to the steep terrain (Howard 2016, pers. comm.). A draft wildlife management plan completed by UDWR proposes closing some unauthorized unpaved roads within the Wildlife Management Area, which likely would further benefit the species by reducing habitat fragmentation (as plants reestablish themselves) and reducing future access to the population (Howard 2016, pers. comm.). We anticipate that the plan will be finalized within the next year (Howard 2017 pers. comm.). Because this plan is currently only in draft, we do not rely on it in this proposal to delist the species. However, it provides an indication of future management intentions of UDWR. Removal of juniper may occur as a habitat improvement for grazing, but not within habitat occupied by the species to avoid plant damage and mortality associated with this surface-disturbing activity (Howard 2016, pers. comm.). The steep terrain associated with Astragalus desereticus habitat makes grazing, juniper removal, and other land-disturbing activities associated with livestock grazing unlikely.

    Retain species' habitat within the Wildlife Management Area under management of UDWR: This action is successful and ongoing. The UDWR continues to manage species' habitat within the Wildlife Management Area in its natural state, with minimal disturbance, as stipulated in the Conservation Agreement (Howard 2016, pers. comm.).

    Evaluate feasibility of acquiring conservation easements or fee title purchases on small private land parcels between U.S. Highway 89 and the existing Wildlife Management Area as resources and willing sellers become available: No easements or property have been acquired, and we do not rely on this conservation action in our proposal to delist the species. However, UDWR has a statewide initiative to acquire additional lands, so future acquisition may be possible (Howard 2016, pers. comm.).

    Avoid using herbicides in species' habitat managed by UDOT: This action is successful and ongoing. The UDOT does not use herbicides in species' habitat within highway rights-of-way, and has committed to continuing this action as stipulated in the Conservation Agreement (Kisen 2016, pers. comm.).

    Avoid disturbing plants during highway maintenance and construction carried out by UDOT: This action is successful and ongoing. The UDOT has not disturbed the species during highway maintenance and construction, and no highway widening projects are anticipated through at least 2040, which is as far as their planning extends (Kisen 2016, pers. comm.).

    Service will monitor populations on an annual basis as needed: This action is successful and ongoing. Surveys were conducted in May 2016 by Utah Natural Heritage Program personnel, and they are currently analyzing the data.

    UDWR and the Service will continue discussions on the development and review of management plans and habitat restoration that may affect species' habitat on the Wildlife Management Area: This action is successful and ongoing. The Service's Utah Field Office is actively engaged with UDWR in the development and review of actions that may affect the species, and meets periodically to implement the protections identified in the Conservation Agreement.

    In summary, most of the conservation actions described in the Conservation Agreement have been successfully achieved and are part of an ongoing management strategy for conserving Astragalus desereticus. Potential threats from residential development, livestock grazing, and highway maintenance and widening are addressed by conservation actions on approximately 74 percent of all occupied habitat owned and managed by either UDWR or UDOT. Conservation measures initiated under the Conservation Agreement will continue through at least 2036.

    As described above, we have new information for Astragalus desereticus since our listing decision and the species' status has improved. This improvement is likely due to expanded surveys as well as the amelioration of threats and an improved understanding of the stressors affecting the species (see five-factor discussion in the following section). In addition to the conservation actions identified in the Conservation Agreement, new opportunities for conservation of the species may be used in the future. For example, a new power line proposed near the species' habitat will use the same corridor as an existing transmission line (see Factor A).

    Survey results from 2009 (the most recent estimate), determined that the total population estimate was 197,277-211,915 juvenile and adult plants occurring on approximately 345 ac (140 ha) of habitat, which is a significant increase compared to estimates of 5,000-10,000 plants occurring on approximately 300 ac (122 ha) at the time of listing. We anticipate that the 2016 survey results will confirm that the population remains stable. The majority of the species' occupied habitat (74 percent) is managed by UDWR and UDOT, and we have no information that indicates the species faces significant threats on private lands. Active participation on conservation actions specified in the Conservation Agreement has fluctuated due to funding and staffing since it was established in 2006 (U.S. Fish and Wildlife Service 2011, p. 4). However, all of the associated conservation actions for UDWR and UDOT managed habitat have been successfully implemented, with the exception of acquiring conservation easements. Additionally, as described below, threats identified at the time of listing in 1999 are not as significant as originally anticipated (U.S. Fish and Wildlife Service 2011, p. 21).

    Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider these same five factors in delisting a species. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the removal of the Act's protections. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.

    Astragalus desereticus is currently listed as threatened. Section 3(20) of the Act defines a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1532). We consider “foreseeable future” as that period of time within which a reliable prediction can be reasonably relied upon in making a determination about the future conservation status of a species, as described in the Solicitor's opinion dated January 16, 2009. We consider 20 years to be a reasonable period of time within which reliable predictions can be made for the species. This time period includes multiple generations of the species, coincides with the duration of the Conservation Agreement, and falls within the planning period used by UDOT. We consider 20 years a conservative timeframe in view of the much longer term protections in place for 67 percent of the species' occupied habitat occurring within the UDWR Wildlife Management Area.

    A recovered species has had threats removed or reduced to the point that it no longer meets the Act's definition of threatened or endangered. A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. For the purposes of this analysis, we will evaluate whether or not the currently listed species, Astragalus desereticus, should continue to be listed as a threatened species, based on the best scientific and commercial information available.

    In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the five-factor threats analysis, we attempt to determine how significant a threat it is. The threat is significant if it drives or contributes to the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could affect a species negatively may not be sufficient to justify a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat is likely to materialize and that it has the capacity (sufficient magnitude and extent) to affect the species' status such that it meets the definition of endangered or threatened under the Act. This determination does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered species or threatened species under the Act. The following analysis examines the five factors currently affecting Astragalus desereticus, or that are likely to affect it within the foreseeable future.

    A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    Factor A requires the Service to consider present or threatened destruction, modification, or curtailment of Astragalus desereticus habitat or range. The species is found in three different land use zones, as categorized by Utah County Land Use Ordinance (Jorgensen 2016b, pers. comm.; Utah County 2016, Chapter 5). Approximately 74.6 percent of the species' habitat occurs in Critical Environment Zone 1, which has the primary purpose of supporting water resources for culinary use, irrigation, recreation, natural vegetation, and wildlife. Approximately 16.7 percent occurs in Residential Agricultural Zone 5, which has the primary purpose of preserving agricultural lands. The remaining 8.6 percent occurs in Critical Environment Zone 2, which has the primary purpose of preserving fragile environmental uses (Jorgensen 2016b, pers. comm.). These zones do not strictly regulate management and land use and, therefore, are not discussed under Factor D; however, the Ordinance prioritizes uses and provides management guidance for all lands in Utah County, unless specifically exempted (Utah County 2016, Chapter 5). All of the conservation actions in place for the species meet the guidelines under their respective land use zone, and we are not aware of any occupied habitat specifically exempted from the guidance described for the aforementioned land use zones.

    The following potential stressors were identified for this species at the time of listing: (1) Residential development, (2) highway maintenance and widening, and (3) livestock grazing and trampling. During the current status review we also considered: (4) mineral development, (5) transmission lines, and (6) climate change. Each of these stressors are assessed below.

    Residential Development

    In our final rule listing Astragalus desereticus, substantial human population growth and urban expansion were predicted in the Provo, Spanish Fork, and Weber River drainages east of the Wasatch Mountains. Increased residential development was considered a threat to the species due to the potential for loss of plants and habitat that results from construction of roads, buildings, and associated infrastructure (e.g., utilities) (64 FR 56591, October 20, 1999). However, counter to the predictions of the Quality Growth Efficiency Tools Technical Committee cited in our final listing rule, residential development in these areas has been very limited since listing. Despite the recent construction of a house and a barn adjacent to Astragalus desereticus occupied habitat (Fitts 2016, pers. comm.), all other nearby development that has already occurred or is planned for the future is located several miles from the species' habitat as described in the following paragraph.

    The nearest community, Birdseye, is unincorporated and has not been included in recent U.S. Census Bureau surveys; therefore, no recent population estimates are available. We are aware of only three proposed development properties in this area. One property has potential for 95 lots and is 2.8 mi (4.5 km) from known occupied habitat. The other two developments would be single dwelling properties approximately 4 mi (6 km) and 5 mi (8 km) from known occupied habitat (Larsen 2016, pers. comm.; Jorgensen 2016a, pers. comm.). These three proposed developments are located near Thistle Creek, upstream from Astragalus desereticus habitat (Jorgensen 2016a, pers. comm.). However, the species' habitat occurs on steep upland slopes that are not vulnerable to potential impacts from changes in downstream flows. Residential development at this scale and distance from Astragalus desereticus population is not likely to impact the species or its habitat now or within the foreseeable future.

    The majority of Astragalus desereticus habitat occurs on steep, rocky, erosive slopes that are not favorable for development; consequently, we do not anticipate any future residential development in the species' occupied habitat (Fitts 2016, pers. comm.). Additionally, as previously noted, approximately 230 ac (93 ha)--67 percent of total habitat for the species—are in a Wildlife Management Area owned by the UDWR that is protected from residential development as described under Factor D.

    We conclude, based on the available information, that residential development is not a threat to Astragalus desereticus currently or within the foreseeable future due to: (1) The minimal disturbance from residential development that has occurred on the species' habitat to date and is anticipated to be minimal in the future; (2) the steep, rocky, erosive nature of the species' habitat, which precludes most development; and (3) the amount of habitat (67 percent) that is protected from residential development.

    Highway Widening and Maintenance

    In our final rule listing Astragalus desereticus, potential widening of Highway 89 was considered a threat to plants growing in the highway right-of-way (64 FR 56592, October 20, 1999). Highway widening would result in the loss of plants and habitat directly adjacent to Highway 89. Regular highway maintenance activities include herbicide use to control weeds that could result in the loss of plants within the right-of-way and adjacent habitat. Additionally, road improvement projects may generate dust that can affect nearby plants. However, widening of Highway 89 has not occurred and is not anticipated by UDOT through at least 2040, which is as far as planning extends (Kisen 2016, pers. comm.).

    The nearest highway development project is a modification of the intersection of Highway 89 and Highway 6 planned for 2017 (Kisen 2016, pers. comm.). This project will take place approximately 7 mi (11 km) north of Birdseye and 4 mi (6 km) north of the nearest occurrence of the species. Therefore, we do not anticipate any direct or indirect impacts to the species. No other projects are currently planned within 20 mi (32 km) of Birdseye (Kisen 2016, pers. comm.).

    Road maintenance is ongoing; however, as committed to in the Conservation Agreement, UDOT avoids herbicide use and other disturbance in the species' habitat (Lewinsohn 2016, pers. comm.; UDWR et al. 2006, p. 9). In instances where herbicides must be used, UDOT will not apply by aerial application within 500 ft (152.5 m) of occupied habitat and will maintain a 100-ft (30-m) buffer for hand application of herbicides around individual plants (UDWR et al. 2006, p. 9). The species appears to tolerate some levels of disturbance related to road maintenance because it recolonizes areas that have been disturbed by tracked vehicles, road grading equipment, and road cuts (Franklin 1990, p. 2; Fitts and Fitts 2009, p. 5; SWCA 2015, p. 7).

    In summary, highway widening and maintenance can destroy habitat and fragment populations, but based upon information provided by UDOT, impacts from these activities are not projected to occur across the range of Astragalus desereticus within the foreseeable future. We are not aware of planned road-widening construction projects in or near the species' habitat, and UDOT has committed to avoiding herbicide use and other disturbance in occupied Astragalus desereticus habitat during maintenance activities (Lewinsohn 2016, pers. comm.; UDWR et al. p. 9). Therefore, based on the available information, we conclude that highway widening and maintenance is not a threat to Astragalus desereticus currently or within the foreseeable future.

    Livestock Grazing and Trampling

    In our final rule listing Astragalus desereticus, livestock grazing and trampling were considered threats to the species because of direct consumption of plants, trampling of plants and the burrows of ground-dwelling pollinators, and soil erosion (64 FR 56591, October 20, 1999). In contrast to many species of Astragalus, this species apparently is not toxic to livestock, and is palatable and may be consumed (Stone 1992, p. 6; Tilley et al. 2010, p. 1).

    Prior to UDWR acquiring the Northwest Manti Wildlife Management Area in 1967, livestock grazing occurred for more than 50 years on habitat occupied by Astragalus desereticus, and may explain why attempts to locate the species were unsuccessful for decades (UDWR et al. 2006, p. 6). Once UDWR acquired the land, they chained (removed scrub growth) and seeded level land upslope of the species' habitat to improve grazing for wild ungulates and livestock; impacts from grazing in the form of trails and trampling were noted at the southern end of Astragalus desereticus habitat (Franklin 1990, p. 4, U.S. Fish and Wildlife 2011, p. 16). However, cattle tended to concentrate upslope of the species' habitat in the chained and seeded area where forage production was higher, and by 1992, there were no signs of recent grazing in the species' habitat (Stone 1992, p. 8). The last cattle grazing on the Wildlife Management Unit occurred in 2002 (U.S. Fish and Wildlife 2011, p. 17).

    The UDWR does not currently allow livestock grazing on the Birdseye Unit of the Wildlife Management Area, and does not plan for any future grazing within the portion of the Wildlife Management Area that contains Astragalus desereticus habitat (Howard 2016, pers. comm.). Avoidance of livestock grazing in species' habitat that is managed by UDWR is stipulated in the Conservation Agreement (UDWR et al. 2006, p. 8). Additionally, the species' habitat is not well-suited to grazing due to sparse forage and steep slopes. Some private lands where the species occurs allow livestock grazing; however, when last visited, there was no evidence of impacts to the species (U.S. Fish and Wildlife 2011, p. 17).

    In summary, livestock grazing and trampling were considered a threat to Astragalus desereticus in our final listing rule because grazing occurred historically over much of the species' habitat and we were concerned about trampling and erosion impacts to the species from livestock use, especially in light of the small population size known at the time. However, changes in land ownership and management due to establishment of the Birdseye Unit of the Northwest Manti Wildlife Management Area reduced the level of livestock use within 67 percent of the species habitat managed now by UDWR. Permitted cattle grazing on the Wildlife Management Area ceased in 2002, and UDWR remains committed to avoiding impacts within the species' habitat (Howard 2016, pers. comm.). Additionally, occupied habitat on both private and protected lands is steep and rocky, with sparse forage. Consequently, minimal grazing impacts have been documented. We conclude, based on the available information, that livestock grazing and trampling are not a threat to Astragalus desereticus currently or within the foreseeable future.

    Mineral Development

    Impacts from mineral development were not considered in the final rule to list Astragalus desereticus (64 FR 56590, October 20, 1999). At the time the Conservation Agreement was signed there was no information indicating that mineral development was going to occur (UDWR et al. 2006, p. 7). SITLA owns the mineral rights on most of the land occupied by Astragalus desereticus, and the agency has not had any inquiries regarding mineral development in the species' habitat since the Conservation Agreement was signed (UDWR et al. 2006, p. 7; Wallace 2016, pers. comm.). In the Conservation Agreement, which will remain in effect through 2036, SITLA agreed to alert any energy and mineral developers to the presence of occupied habitat and recommend surface use stipulations that avoid disturbance and provide mitigation for unavoidable effects to plants or their habitat (UDWR et al. 2006, p. 8). However, there is a low potential for mineral development in the area; consequently, no future development is anticipated (Wallace 2017, pers. comm.).

    In summary, developers have not expressed any interest in mineral development within the range of Astragalus desereticus. Additionally, there is a low potential for mineral development in the area; consequently, no future development is anticipated (Wallace 2017, pers. comm.). Therefore, based on the available information, we conclude that mineral development is not a threat to Astragalus desereticus currently or within the foreseeable future.

    Transmission Lines

    Impacts from transmission lines were not considered in the final rule to list the species (64 FR 56590, October 20, 1999). The Mona to Bonanza high-voltage transmission line is an existing power line near Astragalus desereticus habitat located at the easternmost extent of the known range of the species (Miller 2016, pers. comm.). A new power line proposed in the area is the TransWest Express transmission line. This proposed transmission line would use the same corridor as the existing Mona to Bonanza transmission line (SWCA Environmental Consultants 2015, p. 1). TransWest Express estimated that approximately 10.9 ac (4.4 ha) of potential or occupied habitat for the species occurs within 300 ft (91 m) of proposed transmission structures, and approximately 0.25 ac (0.10 ha) would be directly disturbed (SWCA Environmental Consultants 2015, p. 17). This estimate included some habitat above 6,000 ft (1,829 m) that was likely misidentified as occupied habitat (Fitts 2016, pers. comm.). Therefore, actual disturbance estimates may be slightly less than 0.25 ac (0.10 ha). We estimate that up to one percent of the species' total population could be impacted if no measures to minimize impacts were taken (U.S. Fish and Wildlife Service 2016, p. 29). However, minimal impacts are expected to result from the transmission line installation because dust abatement measures would be implemented, the proposed route is located farther away from Astragalus desereticus populations than the existing Mona to Bonanza transmission line, and existing access roads would be used within the species' habitat (U.S. Fish and Wildlife Service 2016, pp. 25-31). Consequently, impacts from the proposed TransWest Express transmission line are not anticipated to result in a population-level effect to the species based upon the localized extent of impacts and the currently robust status of the species (see Species Abundance, Distribution, and Trends). In addition, the species is able to tolerate some levels of disturbance, and plants have recolonized disturbed areas (Fitts and Fitts 2009, p. 5; Franklin 1990, p. 2).

    In summary, Astragalus desereticus maintains a large, robust population next to the existing Mona to Bonanza transmission line, and only a very minimal amount of habitat (less than 0.25 ac (0.10 ha)) would be disturbed by the proposed future construction of the TransWest transmission line. We conclude, based on the available information, that transmission lines are not a threat to Astragalus desereticus currently or within the foreseeable future.

    Climate Change

    Impacts from climate change were not considered in the final rule to list the species (64 FR 56590, October 20, 1999). Our current analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

    The current rate of a decade-long drought in the southwestern United States is one per century (Ault et al. 2013, p. 7538). This equates to a 50 percent chance over a 50 year interval. Estimates regarding the risk of future persistent droughts in the southwestern United States over the time period from 2050 to 2100 increase to 50-90 percent over the 50 year interval (Ault et al. 2013, pp. 7541-7547). In other words, the likelihood of future drought in the southwestern United States is stable to increasing when compared to current conditions. Climate models that predict future temperatures over three different time periods in the 21st century for the southwestern United States show the greatest warming in summer months (3.5-6.5 degrees Fahrenheit (°F)) (1.9-3.6 degrees Celsius (°C)), with a localized maximum increase in temperatures in central Utah (Kunkel et al. 2013, p. 72). Nationwide, Utah ranks eighth in rate of warming since 1912, with a 0.233 °F (0.129 °C) increase per decade; and seventh in rate of warming since 1970, with a 0.588 °F (0.327 °C) increase per decade (Tebaldi et al. 2012, pp. 3 and 5). We do not have information regarding the increased likelihood of drought or temperature increases at the more detailed scale of the range of Astragalus desereticus--a range that encompasses only a portion of one county in central Utah. Therefore, more site specific predictions are not possible.

    The Astragalus genus has the ability to colonize disturbed or unstable habitats in progressively dry climates and thus appears to be adapted to drought (Stone 1992, p. 6). Generally plant numbers decrease during drought years and recover in subsequent seasons that are less dry. For example, many plants of Astragalus desereticus appeared to die-off in response to the 2012 drought, but have since repopulated the area from the seed bank (Fitts 2016, pers. comm.). Astragalus desereticus and other species in the bean family typically have persistent seed banks with at least some proportion of the seed bank being long-lived because the seeds are physically dormant for long periods of time (Dodge 2009, p. 3; Orscheg and Enright 2011, p. 186; Segura et al. 2014, p. 75). Dormant seeds have a seed coat that imposes a physical barrier between water and the embryo, and this type of dormancy provides an ecological advantage by staggering germination over a long period of time, protecting the embryo from microbial attack, and increasing the longevity of seeds within the soil (Fulbright 1987, p. 40). Species with physically dormant seeds typically have seeds germinating over many years, which increases the probability of the species' persistence in an unpredictable environment and has been termed a “bet-hedging strategy” (Simons 2009, pp. 1990-1991; Williams and Elliott 1960, pp. 740-742). This strategy buffers a population against catastrophic losses and negative effects from environmental variation (Tielbörger et al. 2014, p. 4). Astragalus desereticus can be dormant and not detectable for some years, but later detected in the same area given favorable precipitation conditions (Fitts 2016, pers. comm.). This pattern provides some evidence the species has a persistent seed bank and possibly other life stages that remain dormant during drought conditions. As a result, multiple years of surveys may be necessary to determine if Astragalus desereticus is present within suitable habitat.

    Astragalus desereticus appears well-adapted to a dry climate and can quickly colonize after disturbance. Plants growing in high-stress landscapes (e.g., poor soils and variable moisture) are generally adapted to stress and thus may experience lower mortality during severe droughts (Gitlin et al. 2006, pp. 1477 and 1484). Furthermore, plants and plant communities of arid and semi-arid systems may be less vulnerable to the effects of climate change if future climate conditions are within the historic natural climatic variation experienced by the species (Tielbörger et al. 2014, p. 7). The species likely has experienced multiple periods of prolonged drought conditions in the past as documented from reconstructed pollen records in sagebrush steppe lands (Mensing et al. 2007, pp. 8-10). Natural climatic variation in the Southwest for the last 500 years included periodic major droughts (Kunkle et al. 2013, p. 14). Therefore, it is likely that the species will be able to withstand future periods of prolonged drought.

    In summary, climate change is affecting and will continue to affect temperature and precipitation events. We expect that Astragalus desereticus, like other narrow endemics, could experience future climate change-related drought. However, current data are not sufficiently reliable at the local level to predict the scope of effects of future climate change-related drought. The information we do have indicates the species and the genus are adapted to drought and are able to re-colonize disturbed areas. Therefore, based upon available information, we conclude that climate change is not a threat to Astragalus desereticus currently or within the foreseeable future.

    Summary of Factor A

    The following stressors warranted consideration as possible current or future threats to Astragalus desereticus under Factor A: (1) Residential development, (2) highway maintenance and widening, (3) livestock grazing and trampling, (4) mineral development, (5) transmission lines, and (6) climate change. However, these stressors either have not occurred to the extent anticipated at the time of listing, are being adequately managed, or the species is tolerant of the stressor as described below.

    • Minimal disturbance from residential development has occurred on the species' habitat to date and is anticipated in the future because of the steep, rocky, erosive nature of the species' habitat. In addition, 67 percent of the species' habitat is protected from residential development due to its inclusion in a State wildlife management area.

    • No highway widening is anticipated by UDOT in occupied habitat, and herbicide use and other disturbances are avoided in habitat for the species.

    • The steep, rocky nature of the species' habitat and sparse forage minimize livestock grazing, and 67 percent of all habitat is carefully managed by UDWR to restrict it from grazing.

    • The lack of inquiries and low potential regarding mineral development indicate that mineral development is not a threat.

    • The existing transmission line is not a threat to the species, and activity associated with the proposed transmission line occurring within the species' occupied habitat will be confined to existing access roads.

    • The species and its genus are likely adapted to drought related to climate change.

    • The species appears able to readily re-colonize disturbed areas.

    Therefore, based on the available information, we do not consider there to be any threats now, nor are there likely to be any threats in the future, related to the present or threatened destruction, modification, or curtailment of habitat or range of Astragalus desereticus.

    B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Factor B requires the Service to consider overutilization of Astragalus desereticus for commercial, recreational, scientific, or educational purposes. Overutilization for any purpose was not considered a threat in the final rule to list the species (64 FR 56593, October 20, 1999). The only collections of the species that we are aware of were for scientific purposes. An unknown number of seeds were collected in 2007 and approximately 850 seeds were collected from 45 plants in 2008. In addition, 1,016 seeds were collected from 55 plants in 2009 for germination trials and long-term seed storage at Red Butte Gardens and Arboretum in Salt Lake City, Utah, and the National Center for Genetic Resources Preservation in Fort Collins, Colorado (Dodge 2009, p. 4). This amount of collection is insignificant given the current population estimates for the species, and overall it is beneficial because it will improve our understanding of species propagation and ensure genetic preservation. We are not aware of any other utilization of the species. Therefore, based on the available information, we do not consider there to be any threats now, nor are there likely to be any threats in the future, related to overutilization for commercial, recreational, scientific, or educational purposes of Astragalus desereticus.

    C. Disease or Predation

    Factor C requires the Service to consider impacts to Astragalus desereticus from disease and predation. Disease and predation were not considered threats in the final rule to list the species (64 FR 56593, October 20, 1999). We are not aware of any issues or potential stressors regarding disease or insect predation. As described in more detail under Factor A, grazing--which could be considered a form of predation--is limited in the species' habitat and it does not affect the species throughout its range or at a population level. Therefore, based on the available information, we do not consider there to be any threats now, nor are there likely to be any threats in the future, related to disease or predation of Astragalus desereticus.

    D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to Astragalus desereticus discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require us to consider relevant Federal, State, and Tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in the threats analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations; an example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

    For currently listed species that are being considered for delisting, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. We examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.

    In our discussion under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. Regulatory mechanisms may reduce or eliminate the impacts from one or more identified threats.

    As previously discussed, conservation measures initiated by UDWR, SITLA, and UDOT under the Conservation Agreement manage potential threats caused by residential development, highway maintenance and widening, and livestock grazing and trampling, as well as the more recently identified proposed transmission line. In addition to these conservation measures, relevant Utah State statutes and UDWR administrative rules that will remain in effect regardless of the species' status under the Act include:

    1. Title 23--Wildlife Resources Code of Utah, Chapter 21--Lands and Waters for Wildlife Purposes, Section 5--State-owned lands authorized for use as wildlife management areas, fishing waters, and for other recreational activities. This statute authorizes the creation, operation, maintenance, and management of wildlife management areas including the Birdseye Unit of the Northwest Manti Wildlife Management Area. The Birdseye Unit contains 67 percent of all known habitat occupied by Astragalus desereticus. Consequently, two-thirds of all known habitat is currently managed and will continue to be managed as wildlife habitat regardless of the species' status under the Act.

    2. UDWR Administrative Rule R657-28--Use of Division Lands. This administrative rule describes the lawful uses and activities on UDWR lands including Birdseye Unit of the Northwest Manti Wildlife Management Area. These uses cannot conflict with the intended land use or be detrimental to wildlife or wildlife habitat. This administrative rule provides further support to beneficial management on the 67 percent of occupied habitat managed by UDWR, regardless of the species' status under the Act.

    We are not aware of any Astragalus desereticus occupied habitat on Federal lands. We anticipate that the conservation measures initiated by UDWR, SITLA, and UDOT under the Conservation Agreement will continue through at least 2036. Consequently, we find that conservation measures along with existing State regulatory mechanisms are adequate to address these specific stressors absent protections under the Act.

    E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Factor E requires the Service to consider any other factors that may be affecting Astragalus desereticus. Under this factor, we discuss: (1) Rarity, (2) stochastic events, and (3) cumulative effects.

    Rarity

    In our final rule listing Astragalus desereticus, small population size was considered a concern for the species because of the potential for low levels of genetic diversity as compared to other more widespread related species (64 FR 56593, October 20, 1999). A species may be considered rare due to: (1) a Limited geographic range, (2) occupation of specialized habitats, or (3) small population numbers (Primack 1998, p. 176). This species meets each of these qualifications.

    Astragalus desereticus is likely a localized neoendemic, that is, it is a relatively new species on the scale of geologic time and likely has always been geographically restricted (rare) (Stone 1992, p. 6). A species that has always been rare, yet continues to survive, could be well-equipped to continue to exist into the future. Many naturally rare species exhibit traits that allow them to persist for long periods within small geographic areas, despite their small population size. Consequently, the fact that a species is rare does not necessarily indicate that it may be endangered or threatened. Rarity alone, in the absence of other stressors, is not a threat. Despite the species' unique habitat characteristics and limited range, its current population numbers and preliminary demographic analyses show that its known population (via information at monitored sites) is much larger than in 1990 when the first surveys were conducted and will likely be sustained due to the species' resiliency and the absence of significant stressors. Additionally, as noted under Factor B, seeds have been collected for long-term seed storage at Red Butte Gardens and Arboretum in Salt Lake City, Utah, and the National Center for Genetic Resources Preservation in Fort Collins, Colorado (Dodge 2009, p. 4). This collection provides added security for the species.

    Stochastic Events

    In our final rule listing Astragalus desereticus, stochastic events--particularly fire, drought, and disease--were considered a threat because of the species' small population size and highly restricted range (64 FR 56593, October 20, 1999). Because rare species may be vulnerable to single event occurrences, it is important to have information on how likely it is such an event may occur and how it may affect the species. Demographic stochasticity--random events in survival and reproductive success--and genetic stochasticity--from inbreeding and changes in gene frequency--are not significant threats based on limited abundance trends and the known population size of the species (Stone 1992, pp. 8-10). The same author noted that environmental stochasticity--such as fire, drought, and disease--may be a threat to the species (Stone 1992, p. 10). However, we have since concluded that fire is unlikely in the open, sparsely wooded habitat that the species favors (72 FR 3379, January 25, 2007; U.S. Fish and Wildlife 2011, p. 21). As noted in the discussion of climate change under Factor A, the species appears to be drought tolerant, showing an ability to rebound following drought and re-colonize disturbed areas in progressively dry climates. Lastly, as noted under Factor C, there is no evidence of disease or insect pests. Since listing, survey data has shown the species' known range is somewhat larger and its population numbers are much higher than previously thought, which indicates a tolerance to stochastic events. These increases are likely due to a combination of expanded surveys and increases in population.

    Summary of Factor E

    Given the lack of threats within the Astragalus desereticus population and the robust population size, we conclude that rarity and stochastic events are not threats now, nor are they likely to be threats in the future, to Astragalus desereticus.

    Cumulative Effects

    Many of the stressors discussed in this analysis could work in concert with each other resulting in a cumulative adverse effect to Astragalus desereticus, e.g., one stressor may make the species more vulnerable to other threats. For example, stressors discussed under Factor A that individually do not rise to the level of a threat could together result in habitat loss. Similarly, small population size in combination with stressors discussed under Factor A could present a potential concern. However, most of the potential stressors we identified either have not occurred to the extent originally anticipated at the time of listing in 1999 or are adequately managed as described in this proposal to delist the species. Furthermore, those stressors that are evident, such as drought and rarity, appear well-tolerated by the species. In addition, we do not anticipate stressors to increase on UDWR lands that afford protections to the species on 67 percent of occupied habitat for the reasons discussed in this delisting proposal. Furthermore, the increases documented in the abundance and distribution of the species since it was listed do not support a conclusion that cumulative effects threaten the species.

    Proposed Determination of Species Status Introduction

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for determining whether a species is an endangered species or threatened species and should be included on the Federal Lists of Endangered and Threatened Wildlife and Plants (listed). The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” The phrase “significant portion of its range” (SPR) is not defined by the Act, and, since the Service's policy interpreting the phrase was vacated by the court in Center for Biological Diversity v. Sally Jewel, No. 14-cv-02506-RM (D. Ariz. Mar. 29, 2017), we currently do not have a binding interpretation that addresses: (1) The outcome of a determination that a species is either in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range; or (2) what qualifies a portion of a range as “significant.” We have examined the plain language of the Act and court decisions addressing the Service's application of the SPR phrase in various listing decisions, and for purposes of this rulemaking we are applying the following interpretation for the phrase “significant portion of its range” and its context in determining whether or not a species is an endangered species or a threatened species.

    Two district court decisions have evaluated whether the outcomes of the Service's determinations that a species is in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range were reasonable. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010) (appeal dismissed as moot because of public law vacating the listing, 2012 U.S. App. LEXIS 26769 (9th Cir. Nov. 7, 2012)); WildEarth Guardians v. Salazar, No. 09-00574-PHX-FJM, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30, 2010). Both courts found that once the Service determines that a “species”—which can include a species, subspecies, or DPS under ESA Section 3(16)—meets the definition of “endangered species” or “threatened species,” the species must be listed in its entirety and the Act's protections applied consistently to all members of that species (subject to modification of protections through special rules under sections 4(d) and 10(j) of the Act). See Defenders, 729 F. Supp. 2d at 1222 (delisting the Northern Rocky Mountain DPS of gray wolf except in the Wyoming portion of its range (74 FR 15123, April 2, 2009) was unreasonable because the ESA unambiguously prohibits listing or protecting part of a DPS); WildEarth Guardians, 2010 U.S. Dist. LEXIS 105253, at 15-16 (the Service's finding that listing the Gunnison's prairie dog in the “montane portion” of its range was warranted (73 FR 6660, February 5, 2008) was unreasonable because the Service “cannot determine that anything other than a species, as defined by the ESA, is an endangered or threatened species”). The issue has not been addressed by a Federal Court of Appeals.

    For the purposes of this rule, we interpret the phrase “significant portion of its range” (SPR) in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Therefore, the consequence of finding that a species is in danger of extinction or likely to become so throughout a significant portion of its range is that the entire species will be listed as an endangered species or threatened species, respectively, and the Act's protections will be applied to all individuals of the species wherever found.

    Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this rule, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that such a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation.

    For the purposes of this rule, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether, without that portion, the species in the remainder of its range warrants listing (i.e., is in danger of extinction or likely to become so in the foreseeable future). Conversely, we would not consider the portion of the range at issue to be “significant” if the species would not warrant listing in the remainder of its range even if the population in that portion of the range in question became extirpated (extinct locally).

    We interpret the term “range” to be the general geographical area within which the species is currently found, including those areas used throughout all or part of the species' life cycle, even if not used on a regular basis. We consider the “current” range of the species to be the range occupied by the species at the time the Service makes a determination under section 4 of the Act. The phrase “is in danger” in the definition of “endangered species” denotes a present-tense condition of being at risk of a current or future undesired event. Hence, to say a species “is in danger” in an area where it no longer exists—i.e., in its historical range where it has been extirpated—is inconsistent with common usage. Thus, “range” must mean “current range,” not “historical range.” A corollary of this logic is that lost historical range cannot constitute a significant portion of a species' range where a species is in danger of extinction or likely to become so within the foreseeable future (i.e., it cannot be currently in danger of extinction in a portion of its range where it is already extirpated). While we conclude that a species cannot be in danger of extinction in its lost historical range, taking into account the effects of loss of historical range on a species is an important component of determining a species' current and future status.

    In implementing these independent bases for listing a species, as discussed above, we list any species in its entirety either because it is in danger of extinction now or likely to become so in the foreseeable future throughout all of its range or because it is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range. With regard to the text of the Act, we note that Congress placed the “all” language before the SPR phrase in the definitions of “endangered species” and “threatened species.” This suggests that Congress intended that an analysis based on consideration of the entire range should receive primary focus. Thus, the first step in our assessment of the status of a species is to determine its status throughout all of its range. Depending on the status throughout all of its range, we will subsequently examine whether it is necessary to determine its status throughout a significant portion of its range.

    Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These five factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

    Astragalus Desereticus--Determination of Status Throughout All of Its Range

    We conducted a review of the status of Astragalus desereticus and assessed the five factors to evaluate whether Astragalus desereticus is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. We also consulted with species experts and land management staff with UDWR and UDOT who are actively managing for the conservation of the species. We carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the species. We considered all of the stressors identified at the time of listing as well as newly identified potential stressors such as mineral development, transmission lines, and climate change. As previously described, the stressors considered in our five-factor analysis fall into one or more of the following categories:

    • Stressors including residential development, highway widening, and livestock grazing and trampling have not occurred to the extent anticipated at the time of listing, and existing information indicates that the extent of impact will not change in the future.

    • Stressors including highway maintenance, livestock grazing, transmission lines, and mineral development are adequately managed through the Conservation Agreement and measures described in the Biological Opinion for the TransWest Express Transmission Line Project, and existing information indicates that this management will not change in the future.

    • The species is tolerant of stressors including climate change, transmission lines, rarity, stochastic events, and cumulative effects, and existing information indicates that this tolerance will not change in the future.

    These conclusions are supported by the available information regarding species abundance, distribution, and trends and are in agreement with information presented in our advanced notice of proposed rulemaking (72 FR 3379, January 25, 2007) and in our 5-year review (U.S. Fish and Wildlife Service 2011). Thus, after assessing the best available information, we conclude that Astragalus desereticus is not in danger of extinction throughout all of its range, nor is it likely to become so in the foreseeable future.

    Determination of Status Throughout a Significant Portion of Its Range

    Consistent with our interpretation that there are two independent bases for listing species as described above, after examining the species' status throughout all of its range, we now examine whether it is necessary to determine its status throughout a significant portion of its range. We must give operational effect to both the “throughout all” of its range language and the SPR phrase in the definitions of “endangered species” and “threatened species.” The Act, however, does not specify the relationship between the two bases for listing. As discussed above, to give operational effect to the “throughout all” language that is referenced first in the definition, consideration of the species' status throughout the entire range should receive primary focus and we should undertake that analysis first. In order to give operational effect to the SPR language, the Service should undertake an SPR analysis if the species is neither in danger of extinction nor likely to become so in the foreseeable future throughout all of its range, to determine if the species should nonetheless be listed because of its status in an SPR. Thus, we conclude that, to give operational effect to both the “throughout all” language and the SPR phrase, the Service should conduct an SPR analysis if (and only if) a species does not warrant listing according to the “throughout all” language.

    Because we determined that Astragalus desereticus is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we will consider whether there are any significant portions of its range in which the species is in danger of extinction or likely to become so.

    Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, as noted above, for the purposes of this rule, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that such a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation.

    We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation because decreases in the redundancy, resiliency, and representation of a species lead to increases in the risk of extinction for the species. Redundancy (having multiple resilient populations considering genetic and environmental diversity) may be needed to provide a margin of safety for the species to withstand catastrophic events. Resiliency describes the characteristics of a species that allow it to recover from stochastic events or periodic disturbance. Representation (the range of variation found in a species) ensures that the species' ability to adapt to changing environments is conserved. Redundancy, resiliency, and representation are not independent of each other, and some characteristics of a species or area may contribute to all three. For example, distribution across a wide variety of habitats is an indicator of representation, but it may also indicate a broad geographic distribution contributing to redundancy (decreasing the chance that any one event affects the entire species), and the likelihood that some habitat types are less susceptible to certain threats, contributing to resiliency (the ability of the species to recover from disturbance). None of these concepts is intended to be mutually exclusive, and a portion of a species' range may be determined to be “significant” due to its contributions under any one of these concepts.

    For the purposes of this rule, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether, without that portion, the representation, redundancy, or resiliency of the species would be so impaired that the species would have an increased vulnerability to threats to the point that the overall species would be in danger of extinction or likely to become so in the foreseeable future (i.e., would be an “endangered species” or a “threatened species”). Conversely, we would not consider the portion of the range at issue to be “significant” if there is sufficient resiliency, redundancy, and representation elsewhere in the species' range that the species would not be in danger of extinction or likely to become so throughout its range even if the population in that portion of the range in question became extirpated (extinct locally).

    We recognize that this definition of “significant” establishes a threshold that is relatively high. Given that the outcome of finding a species to be in danger of extinction or likely to become so in an SPR would be to list the species and apply protections of the Act to all individuals of the species wherever found, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: Listing would be rangewide, even if only a portion of the range with minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently in danger of extinction or likely to become so. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).

    The definition of “significant” used in this rule carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions would be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “throughout a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the Defenders litigation. Under that interpretation, the portion of the range would have to be so important that the current species level of imperilment in the portion results in the species currently being in danger of extinction or likely to become so throughout all of its range. Under the definition of “significant” used in this rule, the portion of the range need not rise to such an exceptionally high level of biological significance. (We recognize that, if the species is imperiled in a portion that rises to that higher level of biological significance, then we should conclude that the species is in fact imperiled throughout all of its range, and that we would not need to rely on the SPR language for such a listing.) Rather, under this interpretation we ask whether the species would be in danger of extinction or likely to become so everywhere without that portion, i.e., if that portion were hypothetically completely extirpated. In other words, the portion of the range need not be so important that being merely in danger of extinction in that portion or likely to become so would be sufficient to cause the species to be in danger of extinction or likely to become so in the foreseeable future throughout all of its range. Instead, we evaluate whether the complete extirpation (in a hypothetical future) of the species in that portion would at that point cause the species throughout its remaining range to be in danger of extinction or likely to become so in the foreseeable future.

    We are aware that the court in Center for Biological Diversity v. Sally Jewel found that this definition of “significant” does not give sufficient independent meaning to the SPR phrase. However, the court's decision was based on two misunderstandings about the interpretation of “significant.” First, the court's decision was based on its finding that, as with the interpretation that the court rejected in Defenders, the definition of significant does not allow for an independent basis for listing. However, this definition of significant is not the same as the definition applied in Defenders, which looked at the current status within the portion and asked what the effect on the remainder of the species was. By contrast, this definition of significance uses a hypothetical test of loss of the portion and asks what the effect on the remainder of the species would be; the current status of the species in that portion is relevant only for determining the listing status if the portion has been determined to be significant. This definition of “significant” establishes a lower threshold than requiring that the species' current status in that portion of its range causes the species to be in danger of extinction throughout all of its range or likely to become so in the foreseeable future.

    The second misunderstanding was the court's characterization of the listing determination for the African coelacanth as an indication the Services have had difficulty accurately applying this definition of “significant.” However, in that listing determination, the conclusion was that the species was not in danger of extinction throughout all of its range or likely to become so in the foreseeable future but it did warrant listing because of its status in a significant portion of its range. The only reason for not listing the entire species was that the population in that portion of the range met the definition of a distinct population segment (DPS), and therefore the agency listed the DPS instead of the entire species. The population in an SPR is not automatically a DPS so, contrary to the court's reasoning the definition of “significant” can be applied and result in listing a species that would not otherwise be listed. In light of these flaws, we are currently seeking reconsideration of the district court's decision.

    To undertake this analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that there are any portions of the species' range: (1) That may be “significant,” and (2) where the species may be in danger of extinction or likely to become so in the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required.

    In practice, one key part of identifying portions for further analysis may be whether the threats or effects of threats are geographically concentrated in some way. If a species throughout its range is not in danger of extinction or likely to become so in the foreseeable future and the threats to the species are essentially uniform throughout its range, then the species is not likely to be in danger of extinction or likely to become so in the foreseeable future in any portion of its range. Moreover, if any concentration of threats applies only to portions of the species' range that are not “significant,” such portions will not warrant further consideration.

    If we identify any portions that may be both (1) significant and (2) where the species may be in danger of extinction or likely to become so in the foreseeable future, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is in danger of extinction or likely to become so in the foreseeable future. We must go through a separate analysis to determine whether the species is in danger of extinction or likely to become so in the SPR. To make that determination, we will use the same standards and methodology that we use to determine if a species is in danger of extinction or likely to become so in the foreseeable future throughout all of its range.

    Once we have identified portions of the species' range for further analysis, depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is in danger of extinction or likely to become so in the foreseeable future there; if we determine that the species is not in danger of extinction or likely to become so in a portion of its range, we do not need to determine if that portion is “significant.”

    Astragalus desereticus—Determination of Significant Portion of Its Range

    Applying the process described above, to identify whether any portions warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. To identify portions that may be in danger of extinction or likely to become so in the foreseeable future, we consider whether there is substantial information to indicate that any threats or effects of threats are geographically concentrated in any portion of the species' range. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions will not warrant further consideration.

    We evaluated the range of Astragalus desereticus to determine if any area could be considered a significant portion of its range. As mentioned above, one way to identify portions for further analyses is to identify portions that might be of biological or conservation importance, such as any natural, biological divisions within the range that may, for example, provide population redundancy or have unique ecological, genetic, or other characteristics. Based on the small range of the species—approximately 345 ac (140 ha) in an area 2.8 mi (4.5 km) × 0.3 mi (0.5 km)—we determined that the species is a single, contiguous population and that there are no separate areas of the range that are significantly different from others or that are likely to be of greater biological or conservation importance than any other areas due to natural biological reasons alone. Therefore, there is not substantial information that logical, biological divisions exist within the species' range.

    After determining there are no natural biological divisions delineating separate portions of the Astragalus desereticus population, we next examined whether any threats are geographically concentrated in some way that would indicate the species could be in danger of extinction, or likely to become so, in that area. There is some difference in livestock grazing between State and private lands, with little or no grazing on the 67 percent of habitat occurring on State lands and occasional potential grazing on the remaining private lands. However, steep topography limits grazing everywhere, and there are not fences separating State and private lands (U.S. Fish and Wildlife Service 2011, p. 17). We have reviewed other potential threats and conclude that none of them are concentrated in any portion of the species' range so as to affect the representation, redundancy, or resiliency of the species.

    We did not identify any portions where Astragalus desereticus may be in danger of extinction or likely to become so in the foreseeable future. Therefore, no portions warrant further consideration to determine whether the species may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range. We conclude that the species is, therefore, not an endangered species or threatened species based on its status in a significant portion of its range.

    Astragalus desereticus—Determination of Status

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to Astragalus desereticus. Because the species is not in danger of extinction now or in the foreseeable future throughout all of its range or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species.

    Effects of the Rule

    This proposal, if made final, would revise 50 CFR 17.12(h) to remove Astragalus desereticus from the Federal List of Endangered and Threatened Plants. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect Astragalus desereticus. There is no critical habitat designated for this species.

    Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

    We are proposing delisting for Astragalus desereticus based on new information we have received as well as recovery actions taken. Since delisting will be due in part to recovery, we have prepared a draft post-delisting monitoring (PDM) plan for Astragalus desereticus. The PDM plan was prepared in coordination with the Utah Department of Natural Resources (UDNR) and UDWR. Monitoring will be a joint effort between UDNR and the Service. The PDM plan discusses the current status of the species and describes the methods proposed for monitoring if the species is removed from the Federal List of Endangered and Threatened Plants. Monitoring will occur annually for at least 5 years. Given the uncertainty of potential effects from climate change-related drought, we have developed three possible scenarios for PDM as follows. At the end of 5 years, the species' population status will be evaluated, with three possible outcomes: (1) If the population is stable or increasing with no new or increasing stressors, PDM will conclude; (2) if the population is decreasing, but may be correlated with precipitation levels and remains above 20,000 plants on the Wildlife Management Area, PDM will be extended for an additional 3-5 years and then the population status will be reevaluated; or (3) if the population is decreasing without correlation to precipitation levels and there are fewer than 20,000 plants on the Wildlife Management Area, a formal status review will be initiated. The reasoning behind the second and third options ties back to our conclusion that current information indicates the species and genus are adapted to drought and are able to re-colonize disturbed areas. Therefore, if the population numbers are decreasing but may be fluctuating due to decreased rainfall or drought, additional monitoring may show that the population bounces back during the extended monitoring period allowed for in scenario two. However, if the population is decreasing beyond what might occur as a result of drought, a formal status review would be immediately initiated as described in scenario three.

    It is our intent to work with our partners towards maintaining the recovered status of Astragalus desereticus. We seek public and peer review comments on the draft PDM plan, including its objectives and procedures (see Public Comments, above), with the publication of this proposed rule.

    Required Determinations Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that are easy to understand. We invite your comments on how to make this proposal easier to understand including answers to questions such as the following: (1) Is the discussion in the SUPPLEMENTARY INFORMATION section of the preamble helpful to your understanding of the proposal? (2) Does the proposal contain technical language or jargon that interferes with its clarity? (3) Does the format of the proposal (groupings and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? What else could we do to make the proposal easier to understand? Send a copy of any comments on how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. You may also email the comments to this address: [email protected]

    National Environmental Policy Act

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribes will be affected by this rule because there are no tribal lands within or adjacent to Astragalus desereticus habitat.

    References Cited

    A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2016-0013, or upon request from the Utah Ecological Services Field Office (see ADDRESSES).

    Authors

    The primary authors of this proposed rule are staff members of the Service's Mountain Prairie Region and the Utah Ecological Services Field Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless otherwise noted.

    § 17.12 [Amended]
    2. Section 17.12(h) is amended by removing the entry for “Astragalus desereticus” under “FLOWERING PLANTS” from the List of Endangered and Threatened Plants. Dated: September 7, 2017. James W. Kurth, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2017-21073 Filed 9-29-17; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 36 [Docket No. FWS-R7-NWRS-2017-0058; FF07R00000 178 FXRS12610700000] Refuge-Specific Regulation; Public Use; Kenai National Wildlife Refuge AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Regulatory review.

    SUMMARY:

    The U.S. Fish and Wildlife Service (FWS) intends to initiate a rulemaking process that will consider changes to public use regulations that are applicable to Kenai National Wildlife Refuge and that were promulgated on May 5, 2016.

    DATES:

    October 2, 2017.

    ADDRESSES:

    The final rule that is the subject of this document may be found at www.regulations.gov in Docket No. FWS-R7-NWRS-2017-0058.

    FOR FURTHER INFORMATION CONTACT:

    Ryan Mollnow, Division of Natural Resources Chief, National Wildlife Refuge System—Alaska, 1011 E. Tudor Road, Anchorage, AK 99503; telephone: (907) 786-3326; facsimile: (907) 786-3901; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    On May 5, 2016, the FWS published a final rule to amend its regulations in title 50 of the Code of Federal Regulations (CFR) in part 36 regarding public use of Kenai National Wildlife Refuge (81 FR 27030). The final rule became effective on June 6, 2016. The provisions of the final rule:

    (1) amended regulations regarding use of aircraft, motorboats, motorized vehicles, and snowmobiles;

    (2) codified historic restrictions on hunting and trapping within the Skilak Wildlife Recreation Area (WRA) consistent with the 2007 Skilak WRA final revised management plan;

    (3) expanded a prohibition on the discharge of firearms to include areas of intensive public use along the Russian and Kenai Rivers;

    (4) clarified the intent of existing regulations that require a special use permit for hunting black bears over bait by specifying that only the take of black bears is authorized under this requirement;

    (5) amended regulations associated with camping, use of public use cabins, and public use facilities;

    (6) established permanent regulations for managing wildlife attractants in the Russian River Special Management Area to reduce potential for human-bear conflicts; and

    (7) established regulations allowing for noncommercial gathering of edible wild foods and shed antlers.

    The FWS intends to initiate a rulemaking process that will consider changes to the May 5, 2016, final rule (81 FR 27030) that was codified at 50 CFR part 36. Throughout this process, the FWS will consider the purposes of Secretarial Order 3347 (“Conservation Stewardship and Outdoor Recreation”): Enhanced conservation stewardship, increased opportunities for outdoor recreation, including hunting and fishing, for all Americans, and improved management of game species and their habitat. The FWS will also identify ways to improve cooperation, consultation, and communication with State of Alaska wildlife managers regarding recreational hunting and fishing.

    At this time, the FWS is not accepting comments on the upcoming rulemaking process. When we publish a proposed rule in the Federal Register, the FWS will comply with all applicable laws governing the rulemaking process, including the requirement under 5 U.S.C. 553 to provide an opportunity for public comment on any proposed regulatory changes.

    Authority: 16 U.S.C. 460k et seq., 668dd-668ee, 3101 et seq.

    Todd Willens, Acting Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2017-21124 Filed 9-29-17; 8:45 am] BILLING CODE 4333-15-P
    82 189 Monday, October 2, 2017 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request September 27, 2017.

    The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC; New Executive Office Building, 725—17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602.

    Comments regarding these information collections are best assured of having their full effect if received by November 1, 2017. Copies of the submission(s) may be obtained by calling (202) 720-8681.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Agricultural Marketing Service

    Title: Report Forms under a California Federal Milk Marketing Order (from Milk Handlers and Milk Marketing Cooperatives); Referendum Procedures.

    OMB Control Number: 0581-New.

    Summary of Collection: The Agricultural Marketing Agreement Act of 1937 (AMAA) as amended, (7 U.S.C. 601-674, and 7253), authorizes the Federal Milk Marketing Order (FMMO) Program. The authority for conducting a producer referendum to ascertain whether the issuance of an order is approved or favored is outlined in 7 U.S.C. 608c(9). The California dairy industry requested promulgation of a FMMO for California similar, to the 10 existing FMMO's throughout the United States. The proposed FMMO incorporates the entire state of California and would adopt the same dairy product classification and pricing provisions used throughout the current FMMO system. AMS will issue a Final Decision on promulgating a California FMMO.

    Need and Use of the Information: A referendum will be conducted and the information collected would be used by the Agricultural Marketing Service Dairy Program to determine whether producers and/or cooperative associations support implementation of the California FMMO. If the collection is not conducted, producers and/or cooperative associations would be unable to vote on the California FMMO. The referendum is necessary to determine whether the California FMMO should be established.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 1,453.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 363.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2017-21023 Filed 9-29-17; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request September 2, 2017.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by November 1, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8681.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    National Agricultural Statistics Service

    Title: Livestock Slaughter.

    OMB Control Number: 0535-0005.

    Summary of Collection: The primary functions of the National Agricultural Statistics Service (NASS) are to prepare and issue current official State and national estimates of crop and livestock production, disposition and prices and to collect information on related environmental and economic factors. General authority for data collection activities is granted under U.S. Code Title 7, Section 2204(a). This statue specifies the “The Secretary of Agriculture shall procure and preserve all information concerning agriculture which he can obtain . . . by the collection of statistics . . . and shall distribute them among agriculturists”. Information from federally and non-federally inspected slaughter plants are used to estimate total red meat production. NASS will use a Federally and non-Federally-inspected livestock slaughter survey to collect data.

    Need and Use of the Information: NASS will combine information collected from both types of plants to estimate total red meat production, consisting of the number of head slaughtered plus live weights of cattle, calves, hogs, sheep, goats, and bison. Accurate and timely livestock estimates provide USDA and the livestock industry with basic data to project future meat supplies and producer prices. Agricultural economists in both the public and private sectors use this information in economic analysis and research.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 1,000.

    Frequency of Responses: Reporting: Monthly, Quarterly and Annually.

    Total Burden Hours: 1,748.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2017-21024 Filed 9-29-17; 8:45 am] BILLING CODE 3410-20-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2017-0071] Availability of an Environmental Assessment for the Biological Control of Yellow Toadflax AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice of availability and request for comments.

    SUMMARY:

    We are advising the public that the Animal and Plant Health Inspection Service has prepared a draft environmental assessment relative to the control of yellow toadflax (Linaria vulgaris). The environmental assessment considers the effects of, and alternatives to, the field release of a stem gall weevil, Rhinusa pilosa, into the continental United States for use as a biological control agent to reduce the severity of yellow toadflax infestations. We are making the environmental assessment available to the public for review and comment.

    DATES:

    We will consider all comments that we receive on or before November 1, 2017.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0071.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2017-0071, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0071 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Colin D. Stewart, Assistant Director, Pests, Pathogens, and Biocontrol Permits, Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2327, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Yellow toadflax is an invasive plant in pastures and crops, particularly in the northern prairies of North America. First introduced to northeastern North America in the 1600s, yellow toadflax has since spread throughout the United States. Invasions of yellow toadflax in pastures and rangelands displace native and planted—and more valued and nutritious—forage species. Yellow toadflax is difficult to control using chemical, mechanical, cultural, or existing biological control practices, and infestations of the plant have caused economically significant losses to peppermint producers, mainly because chemical control is generally incompatible with production cropping practices. The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the field release of a stem gall weevil, Rhinusa pilosa, into the continental United States to reduce the severity of yellow toadflax infestations and to reduce economic losses in the areas of greatest impact since other alternatives are not effective or feasible.

    APHIS' review and analysis of the proposed action are documented in detail in a draft environmental assessment (EA) entitled “Field release of the stem gall weevil Rhinusa pilosa (Coleoptera: Curculionidae) for classical biological control of yellow toadflax (Linaria vulgaris) (Plantaginaceae) in the contiguous United States” (March 2017). We are making this EA available to the public for review and comment. We will consider all comments that we receive on or before the date listed under the heading DATES at the beginning of this notice.

    The EA may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for a link to Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the EA by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT. Please refer to the title of the EA when requesting copies.

    The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

    Done in Washington, DC, this 26th day of September 2017. Michael C. Gregoire, Acting Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2017-21105 Filed 9-29-17; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Forest Service Happy Camp/Oak Knoll Ranger District; California; Elk Creek Watershed Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an Environmental Impact Statement.

    SUMMARY:

    The purpose of the Elk Creek Watershed Project is to address the need to manage forest stands to be more resilient to future disturbances, improve water quality to maintain and restore riparian and aquatic habitat, improve terrestrial habitat for northern spotted owl and Roosevelt elk, reduce fuel accumulations, and improve the vigor and prevalence of Karuk cultural resources.

    DATES:

    Comments concerning the scope of the analysis must be received by November 16, 2017. The Draft Environmental Impact Statement is expected June 2018 and the Final Environmental Impact Statement is expected February 2019.

    ADDRESSES:

    Send written comments to P.O. Box 377, Happy Camp, CA 96039. Comments may also be sent via email to [email protected], or via facsimile to (530) 493-1796. Submit electronic comments at the Klamath National Forest's project Web page: http://www.fs.fed.us/nepa/fs-usda-pop.php/?project=46553.

    FOR FURTHER INFORMATION CONTACT:

    Dock Chastain, (530) 493-1742, [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION: Purpose and Need for Action

    The purpose and need for this project is to:

    • Reduce fuel accumulations and create ridgetop fuel breaks to increase options for managing planned and unplanned ignitions;

    • Improve water quality to maintain and restore riparian and aquatic habitat;

    • Maximize efficiency of system roads and trails that provide public access to the Forest while minimizing resource impacts;

    • Manage forest stands to be more resilient to future disturbances and improve terrestrial habitat for northern spotted owl and Roosevelt elk;

    • Contribute to local and regional economies by providing forest products and enhancing recreational opportunities; and

    • Improve the vigor and prevalence of Karuk cultural resources that were historically present in the planning area.

    Proposed Action

    The proposed action was designed to meet the purpose and need of the project. The proposed action would treat about 10,550 acres within the 45,992-acre project boundary. Acres by treatment type are described below and do not account for overlap in treatment types (acres receiving multiple treatments may be double counted). Treatment acreages are approximate at this point and may be adjusted and refined following scoping. The proposed action also addresses the existing condition of the National Forest Transportation System (Forest System) by treating legacy sites, changing road maintenance levels, and decommissioning roads. All treatments would manage for improving the health and vigor of hardwood species according to the Klamath National Forest Land and Resource Management Plan (Forest Plan). Riparian Reserves within and adjacent to treatment units would be evaluated on a site-by-site basis for treatment, and would include equipment and treatment exclusion zones.

    This project would include the following eight types of vegetation treatments: (1) Commercial thinning; (2) noncommercial thinning; (3) hardwood enhancement; (4) meadow enhancement; (5) fuels reduction adjacent to private property; (6) defensible fuel profile zones; (7) roadside fuels reduction; and (8) underburning. This project would use a travel analysis for recommending management levels of existing Forest System roads and would develop new opportunities for recreation through the addition of new trails.

    (1) Commercial Thinning (1,782 acres): Commercial thinning is an intermediate harvest with the objective of reducing stand density primarily to improve growth, enhance forest health, and other resources objectives. Treatment can recover potential mortality while producing merchantable material.

    (2) Noncommercial Thinning (1,256 acres): Noncommercial thinning is an intermediate harvest which removes the less desirable trees of any species in a stand of poles or larger trees primarily to improve the composition and quality of the stand.

    (3) Hardwood Enhancement (76 acres): Hardwood enhancement would focus on stimulating the growth and available resources for preferred hardwood species according to the Forest Plan.

    (4) Meadow Enhancement (18 acres): Meadow enhancement treatments would focus on reducing conifer encroachment by removing conifer seedlings and saplings growing within the meadow footprint.

    (5) Fuels reduction Adjacent to Private Property (153 acres): Fuel breaks created to protect private property would extend up to 500 feet adjacent to private property. The fuel treatments would involve cutting and pile burning of ladder fuels: Brush, hardwoods, and conifer trees up to ten inches diameter at breast height.

    (6) Defensible Fuel Profile Zone (823 acres): The width of the defensible fuel profile zone would be up to 250 feet on either side of proposed ridge lines. The fuel treatments would involve cutting and pile burning of ladder fuels: Brush, hardwoods, and conifer trees up to ten inches diameter at breast height.

    (7) Roadside Fuels Reduction (1,896 acres): The roadside fuel breaks would extend up to 300 feet above and 50 feet below either side of identified Forest System and county roads adjacent to Forest Service lands. The fuel treatments would involve cutting and pile burning of ladder fuels: Brush, hardwoods, and conifer trees up to ten inches diameter at breast height.

    (8) Underburning (4,552 acres): Underburn units are intended to be burned at low to moderate intensities to reduce fuel loadings and reduce the risk of catastrophic fire. Travel Analysis—A risk and benefit analysis was conducted for Forest System roads within the East Fork Elk Creek and Lower Elk Creek 6th field watersheds. Road treatments include 22 miles of decommissioning, 15 miles of downgrading maintenance levels, 10 miles of upgrading maintenance levels, and treating associated legacy sites. In addition to Forest System road actions, four miles of non-system roads would be rehabilitated.

    This project would also include recreation improvements, including the construction of 4.3 miles of new multi-use trails and up to 13 miles of mountain bike trail.

    Connected Actions

    Access: Access for this project would be mainly accomplished by use of roads on the National Forest Transportation System. About three miles of temporary roads would be needed to facilitate commercial thinning operations. Most of these temporary roads would occur on existing roadbeds. However, several short new temporary spur roads would also be constructed. Both new and existing temporary roads would be hydrologically stabilized at the end of the project.

    Landings: Existing landings would be used where possible. Landing size would be appropriately sized for operational safety. Cable landings would use roads where possible. Cable landings off the road system and ground-based landings would average one acre in size but would not exceed 1.5 acres in size. Both new and existing landings would be hydrologically stabilized at the end of the project.

    Responsible Official

    Patricia A. Grantham, Klamath National Forest, Forest Supervisor.

    Nature of Decision To Be Made

    The Forest Service is the lead agency for the project. Based on the result of the NEPA analysis, the Klamath National Forest, Forest Supervisor's Record of Decision regarding the Elk Creek Watershed Project will recommend implementation of one of the following:

    (1) The proposed action and mitigations necessary to minimize or avoid adverse impacts;

    (2) An alternative to the proposed action and mitigations necessary to minimize or avoid adverse impacts; or

    (3) The no-action alternative.

    The Record of Decision will also document the consistency of the proposed action or one of the alternatives with the Klamath National Forest Land and Resource Management Plan.

    Scoping Process

    This notice of intent initiates the scoping process, which guides the development of the Environmental Impact Statement.

    It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the Environmental Impact Statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.

    Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.

    Dated: September 12, 2017. Jeanne M. Higgins, Acting Associate Deputy Chief, National Forest System.
    [FR Doc. 2017-21005 Filed 9-29-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Nez Perce-Clearwater National Forests; Idaho; Lolo Insect & Disease Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Revised Notice of Intent to prepare an Environmental Impact Statement.

    SUMMARY:

    This is a corrected Notice of Intent (NOI). This notice updates the information about the purpose and need, proposed action, expected dates of the Draft Environmental Impact Statement (EIS) and Final EIS, addresses, contact information for the project, and the responsible official for the Lolo Insect & Disease project. This notice also provides clarification for individuals or organizations that provided comments in response to scoping previously conducted as it relates to having standing to object. Preliminary issues, alternatives, and permits are also available and presented in this notice.

    DATES:

    Comments concerning the scope of the analysis must be received by October 17, 2017. The Draft EIS is expected January of 2018 and the Final EIS is expected August of 2018. This project was originally scoped under the provisions of 36 CFR 215. For this project, individuals or organizations who submitted written comments in response to scoping conducted under 36 CFR 215 will be considered to have standing to object under 36 CFR 218, Subparts A and B. Those who also wish to establish standing to object under 36 CFR part 218 should submit scoping comments no later than 15 days after publication of this Notice of Intent or during the 45-day comment period following distribution of the Draft EIS.

    ADDRESSES:

    Send written comments to Lochsa Ranger District, c/o Sara Daugherty, 502 Lowry Street, Kooskia, Idaho 83539. Comments may also be sent via email to [email protected], or via facsimile to 208-926-6450.

    FOR FURTHER INFORMATION CONTACT:

    For more information please contact Sara Daugherty at 208-926-6404 or [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The Forest Service gives notice of its intent to prepare an EIS for the Lolo Insect & Disease project to analyze and disclose the effects of proposed forest management and watershed improvement activities within the Lolo Creek watershed, located approximately 16 miles northeast of Kamiah, Idaho. The proposed action would use a combination of timber harvest and reforestation to achieve the desired range of age classes, size classes, vegetative species distributions, habitat complexity (diversity), and landscape patterns across the forested portions of the project area. Road decommissioning, culvert replacements, road and trail improvements, and soils rehabilitation are also proposed to improve watershed health. The EIS will analyze the effects of the proposed action and alternatives. The Nez Perce-Clearwater National Forests invites comments and suggestions on the issues to be addressed. The agency gives notice of the National Environmental Policy Act (NEPA) analysis and decision making process on the proposal so interested and affected members of the public may participate and contribute to the final decision. The original notice was published in the Federal Register on April 25, 2013; 78 FR 24718. This process is being conducted pursuant to the National Environmental Policy Act (NEPA), the Council on Environmental Quality Regulations for Implementing the NEPA (40 CFR parts 1500-1508), and Forest Service NEPA guidelines. Additionally, pursuant to Section 106 of the National Historic Preservation Act, the public scoping process will allow members of the general public to provide comments on potential impacts to historic and cultural resources for the proposed action. An objection priod for the Draft Record of Decision will be provided, consistent with 36 CFR part 218.

    Purpose and Need for Action Vegetation and Wildlife Habitat Improvement

    Existing Condition: Most of the project area is in Forest Plan management area (MA) E1. MA E1 is timber-producing land to be managed for healthy timber stands to optimize potential timber growing. Timber production is to be cost-effective and provide maximum protection of soil and water quality. Big game, primarily elk, is to be managed through limited road closures. Dispersed recreation and livestock grazing will be provide if compatible with timber management goals.

    In the project area, fires that occurred in 1910 and 1934 and the introduction of white pine blister rust have created a homogeneous age class and species composition which has become highly susceptible to insect and disease change agents due to its current age. Mortality in grand fir and Douglas-fir dominated stands is increasing from root disease, Douglas-fir bark beetle, and grand fir engraver. In 2015, some of the proposed treatment areas were burned causing extensive tree mortality. Insects are invading stands within and outside of areas burned in 2015. Currently, a higher percentage of grand fir and Douglas-fir exist than natural long-term disturbances patterns would have created and that would have dominated these habitat types in the absence of historical disturbance events. Grand fir and Douglas-fir are more susceptible to insects and diseases, and grand fir is less likely to survive intense wildfires, than early seral species such as ponderosa pine, western larch, and western white pine.

    Young forest habitat is lacking on this landscape, while the quality of available habitat for sensitive and old growth-associated species has declined. Patches of young forest that do exist are smaller with edges that are straighter and more even than natural disturbances would have created.

    Desired Condition: The desired condition is a forest structure with a range of age and size classes with species diversity that is resistant and resilient to change agents such as insects, diseases, and wildfires. Early seral species (white pine, larch) should represent a greater percentage of the species mix.

    Need for Action: Vegetation in this area needs to be managed to create a more diverse and resilient forest structure by creating a range of age and size classes, species diversity, and disturbance patterns that more closely emulate the results of natural disturbance. A need exists to shift tree species composition away from shade-tolerant species toward more resistant and resilient early seral species. Restoration of blister rust resistant white pine is a primary objective.

    Goods and Services

    Existing Condition: Much of the Project area consists of grand fir-dominated stands. Insect and disease infestations are contributing to increased tree mortality, while decreasing timber volume and value.

    Desired Condition: The desired condition is to provide a sustained yield of resource outputs as direct by the Clearwater Forest Plan.

    Need for Action: Stands that are infested with insects and diseases need to be treated so that the harvested timber that still has a merchantable product in the trees will help sustain community stability through supporting jobs in the timber industry and support businesses.

    Watershed Improvement

    The emphasis for watershed restoration in the Lolo Creek drainage is associated with roads and soil improvement.

    Existing Condition: Gravel and native surface roads could contribute sediment to stream channels, which can affect water quality and fish habitat. There are 555 miles of system and 40 miles of non-system road in the Lolo Creek watershed. A total of 178 miles occurs within designated PACFISH buffers.

    Desired Condition: The desired condition is to maintain a road system in the Lolo Creek watershed that is adequate to provide for continued recreation, commodity production, and administrative use as described in the Clearwater Forest Plan while maintaining fish and water quality objectives.

    Need for Action: Improving watershed function and stream conditions by reducing road densities and repairing existing roads and culverts to reduce sediment and improve drainage is needed. New system roads would be constructed to provide a long term transportation system while reducing roads located within riparian habitat conservation areas.

    Roads Analysis

    Existing Condition: Transportation planning has been completed at the Clearwater National Forest level by analyzing the entire transportation system as a whole. A roads analysis of the project area provides the current transportation system.

    Desired Condition: A diversity of motorized access adequate to provide for continued recreation, commodity production, and administrative use as described in the Clearwater Forest Plan.

    Need for Action: A comprehensive roads analysis including all motorized access opportunities. Implementation of the results of the roads analysis would create a sustainable transportation system.

    Soil Improvement

    Existing Condition: Past management activities have resulted in areas of detrimental soil disturbance, mostly in the form of compacted or displaced soil or loss of organic matter.

    Desired Condition: Soils are productive (functioning soil biology, soil hydrology, and nutrient cycling) and stable.

    Need for Action: Watershed function can be improved by restoring compacted soils and adding organic material on old skid trails and landings. Restoration of meadow function with seeding and planting of native species.

    Proposed Action

    The Lochsa Ranger District proposes the following vegetation management actions to improve forest health, reforest areas burned in 2015, provide goods and services, and improve wildlife habitat:

    • Variable retention regeneration harvest and site preparation activities would be conducted on approximately 3464 acres. Stands that are currently being affected by biotic change agents would be targeted for treatment. Regeneration harvest would create early successional plant communities and habitat. Project design criteria would be used in portions of units to address specific resource concerns, such as areas within the National Historic Landmark Corridor that require retention to meet visual objectives. Regeneration would focus on restoring white pine and other long-lived early seral species. Variable retention harvest would include areas of full retention (clumps), irregular edges, and retention of snags and legacy trees to provide structure and a future source of woody debris. Some openings may exceed 40 acres. Harvest would include utilizing ground based, skyline, and helicopter yarding systems; as well as approximately 2.6 miles of tractor swing trails. There is no harvest proposed in old growth.

    • Approximately 19 miles of temporary roads would be constructed to carry out the proposed harvest. Temporary roads would be decommissioned after use.

    The following road improvement actions area proposed to reduce sediment production and address transportation needs.

    • Road improvements would occur on up to 125 miles of roads within the project area. Road improvement activities include: Adding cross drains on either side of perennial streams where fish-bearing would be the highest priority followed by non-fish bearing perennial streams (these would be determined and prioritized based on field review); replacing crossings on perennial streams with structures appropriately sized for a 100-year event (these would be prioritized by the district fisheries biologist); and stabilize eroding sections of road that may be accomplished by blading followed by spot rocking or the addition of drainage structures where needed.

    • Road maintenance and reconditioning would occur on approximately 157 miles of system roads. Maintenance consist of culvert cleaning, surface blading, and roadside brushing; and reconditioning includes minor road reshaping, waterbar removal, and road surface brush removal.

    • Road decommissioning is proposed on approximately 60 miles of system road and approximately 30 miles of non-system road. In most cases this includes fully re-contouring the road.

    • Approximately 4 miles of system roads would be converted to an off-highway vehicle (OHV) trail.

    • Approximately 0.74 miles of new system roads would be constructed to contribute to the long term transportation system while reducing roads located within riparian habitat conservation areas.

    The following actions are proposed to improve soil and vegetation conditions in the Musselshell Restoration Area portion (1,600 acres) of the project area:

    • Approximately 745 acres of white pine restoration would be accomplished through intermediate harvest by creating small openings to plant blister rust resistant seedlings, benefit other species, and contribute to ecosystem health.

    • Approximately 92 acres of riparian habitat conservation area (RHCA) restoration would occur where RHCAs of perennial streams are overstocked with trees. Trees would be commercially thinned to promote a healthy stand and promote long term RHCA function.

    • Soil rehabilitation would occur on approximately 55 acres of currently detrimentally disturbed areas associated with past harvest related activities. Activities could include decompaction, mastication, fertilization, seeding, and addition of woody/organic material.

    • Deferred maintenance would occur on mile of Trail #853. Work may include improvement and development of drainage structures within the existing tread. Rock and/or gravel material may be placed on the exiting tread surface to complement the drainage structures and provide adequate base to support motorized OHV use, reduce erosion, and loss of fine materials.

    The Lolo Insect & Disease project will also include a variety of project design criteria that have been developed from past projects, verified by field surveys, and will be used to limit possible adverse effects to soils, water quality, fish and wildlife habitat, recreation opportunities, and culturally significant areas.

    Possible Alternatives

    In addition to the No Action and the Proposed Action, alternatives that do not harvest in riparian habitat conservation areas, within the Eldorado Creek Roadless Area and special areas of historic or tribal significance (such as the National Historic Landmark corridor), as well as minimal temporary road construction with more helicopter logging are expected. These preliminary alternatives were developed based on prior scoping comments received. Alternatives will be developed based on previous and additional comments received during the scoping periods.

    Responsible Official

    Nez Perce-Clearwater Forest Supervisor.

    Nature of Decision To Be Made

    The Responsible Official will determine whether to adopt the proposed action or another alternative, in whole or in part, and what mitigation measurements and management requirements will be implemented.

    Preliminary Issues

    Issues received during the previous scoping period include harvesting in the Eldorado Creek Roadless Area, the National Historic Landmark corridor, and other special areas of historic or tribal significance; riparian habitat conservation area thinning, helicopter logging systems, winter logging, and minimal road construction.

    Permits or Licenses Required

    Any required permits for disturbance of water or wetlands would be obtained prior to initiating work (Army Corps of Engineers 404 permit, Idaho Department of Water Resources Stream Alteration Permit). Any additional mitigation measures identified in the permitting process would be incorporated into the project plans.

    Scoping Process

    This Notice of Intent initiates the scoping process, which guides the development of the EIS. The interdisciplinary team will continue to seek information and comments from Federal, State, and local agencies, Tribal governments, and other individuals or organizations that may interested in, or affected by, the proposed action. There is a collaborative group in the area that the interdisciplinary team will interact with during the analysis process. It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.

    Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents.

    Dated: September 13, 2017. Jeanne M. Higgins, Acting Associate Deputy Chief, National Forest System.
    [FR Doc. 2017-21008 Filed 9-29-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Apache-Sitgreaves National Forests; Apache, Coconino, Greenlee and Navajo Counties, Arizona; Revised Draft Environmental Impact Statement for Public Motorized Travel Management Plan AGENCY:

    Forest Service, USDA.

    ACTION:

    Revised Notice of Intent (NOI).

    SUMMARY:

    The Forest Service is revising the Environmental Impact Statement for the Public Motorized Travel Management Plan on the Apache-Sitgreaves National Forests.

    DATES:

    Comments concerning the 2010 DEIS were received by December 13, 2010, 45 days from the date of publication of the Notice of Availabiliy (NOA) of the draft EIS in the Federal Register (75 FR 66756). An additional 45 day comment period will occur after the publication of the revised DEIS in the Federal Register. The revised DEIS is expected in the summer of 2018 and the final EIS is expected in the winter of 2019.

    ADDRESSES:

    Send written inquiries to Travel Management, Apache-Sitgreaves National Forests, P.O. Box 640, Springerville, AZ 85938. Inquiries may also be sent via email to [email protected] with “Travel Management” in the subject line. Inquiries may also be sent via facsimile to (928) 333-5966.

    FOR FURTHER INFORMATION CONTACT:

    Jennie O'Connor Card, Team Leader at (406) 522-2537 or [email protected]; or, Tim Gilloon, NEPA Program Manager at (928) 333-6333 or [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    : On October 10, 2007, the Federal Register published a Notice of Intent (NOI) to prepare an Environmental Impact Statement for the Public Motorized Travel Management Plan on the Apache-Sitgreaves National Forests (72 FR 57514-57517). On October 31, 2007, the Federal Register published a corrected NOI for that document (72 FR 61607). On February 29, 2008 the Federal Register published a revised NOI for those documents (73 FR 11088-11091). The Forest Service is hereby entirely revising all those NOI documents, Federal Register of October 10, 2007 (72 FR 57514-57517), Federal Register of October 31, 2007 (72 FR 61607) and Federal Register of February 29, 2008 (73 FR 11088-11091), to read as follows.

    Revision: The Forest Service is preparing a Revised Draft Environmental Impact Statement (DEIS) for the Apache-Sitgreaves Public Motorized Travel Management Plan (the Project) on the Apache-Sitgreaves National Forests (the Forests). The Forest Service is issuing this NOI to advise the public and agencies that we will be preparing a revised DEIS using new information, based on changed conditions, in order to make the best possible decision. The new information includes: Changed conditions due to the Wallow Fire of 2011; the 2015 Land Management Plan for the Apache-Sitgreaves National Forests (the Forest Plan); changes in aquatic and terrestrial species status; more accurate road mapping based on Light Detection and Ranging (LIDAR) data and aerial photography; and Forest Service decisions made under the National Environmental Policy Act since the 2010 DEIS. The revised DEIS will use the 2010 DEIS as a foundation, and will consider all public comments received; the revised DEIS does not change the nature or scope of the proposed action.

    The Project proposes to designate which routes (roads and trails) and areas on federal lands administered by the Forests are open to motorized travel. This proposed action will bring the Forests into compliance with the Travel Management Rule (36 CFR 212, subpart B) to provide for a system of National Forest System (NFS) roads, motorized trails, and motorized areas designed for motor vehicle use. The proposed action prohibits cross-country travel and motor vehicle use off the designated system. This proposed action also will designate use of motor vehicles within a specified distance of certain designated routes for the purposes of dispersed camping and/or retrieval of a downed big game animal.

    The Forest Service will produce a Motorized Vehicle Use Map (MVUM) that displays those routes and areas on the Forests that are open to motorized travel. The MVUM will be the primary tool used to determine compliance and enforcement with motor vehicle use designations. Existing routes, unauthorized routes, and areas not designated as open on the MVUM will be legally closed to motorized travel except as allowed by permit or other authorization. The decisions on motorized travel do not include over-snow travel or existing winter-use recreation.

    Purpose and Need for Action

    The purpose of this project is to comply with the Travel Management Rule by providing a system of roads, trails, and areas designated for motor vehicle use that reduces impacts to biological, physical, and cultural resources on the forests (36 CFR 212, sections 212, 251, 261). At 36 CFR 261.13, the Forests are required to prohibit motor vehicle use off the system of designated roads, trails, and areas and motor vehicle use that is not in accordance with the designations.

    There is a need for a safe and efficient transportation system for public use, Agency administration, and resource protection, while recognizing historic and current uses of the forests. Specifically, there is a need for: (1) Identifying the system of roads that would be open to motor vehicle use; (2) identifying the system of motorized trails for vehicles 50 inches or less in width; and (3) optional designation of the limited use of motor vehicles within a specified distance of designated routes solely for the purposes of dispersed camping or retrieval of big game by an individual who has legally killed the animal.

    There is a need to counter detrimental effects to resources from continued use of some roads and motorized trails, as well as cross-country travel. Some detrimental effects from motorized use of the Forests include increased sediment deposits in streams which degrade water quality and fish habitat, the spread of invasive plants across the forests, disturbances to a variety of plant and wildlife species, and the risk of damaging cultural resource sites.

    Changed Conditions

    The changed conditions and new information since the 2010 DEIS, which lead to the need for a revised environmental analysis, are incorporated in the updated alternatives being considered in detail. The first substantive change stemmed from the Wallow Fire of 2011, which resulted in changes to the physical environment within the project area. The fire resulted in changes in the ecology of the landscape, creating a need to conduct significant restoration and monitoring efforts in order to return the Forests to its natural fire regime. The Forest Plan is another substantive change to the existing conditions. This has changed the desired conditions, standards and guidelines, and suitability directing how the Forests are managed. The Forest Plan provides overarching management direction for how motorized travel will be managed on the Forests.

    In addition, changes in aquatic and terrestrial species status under the Endangered Species Act for threatened and endangered species, and under Forest Service policy for sensitive species, resulted in another changed condition. Critical and sensitive habitats for some species can be found across the Forests which must now be considered and analyzed. Additionally, the Forests updated the existing conditions in the databases of record to match the on-the-ground conditions using LIDAR data and aerial photography. The result of this corrects or clarifies the existing physical NFS roads, changing the baseline of which the alternatives considered are compared against.

    Other decisions made under the National Environmental Policy Act since the 2010 draft EIS by the Forests changed the existing conditions and led to changes in the action alternatives. While the Project is proposing to look at the entire National Forest System of roads, numerous decisions about specific roads and trails have been made since 2010 that provide definitive environmental analysis and designation for those roads and trails that does not require redundant analysis.

    Collectively, these changes will be analyzed and incorporated into the revised DEIS, which will be circulated for public comment. The previous public comments and analysis will be used as the foundation for this revision. At the time that the revised DEIS is circulated, the public will have the opportunity to comment on the entire DEIS, including portions that have not been revised.

    Preliminary Issues

    The Forest analyzed all scoping comments received in 2007 to identify issues, which are defined as cause-effect relationships directly or indirectly caused by implementing the proposed action. The issues defined as within the scope of the project, and directly or indirectly caused by implementing the proposal, were used to develop the range of action alternatives. Four issues were identified: (1) Restricting motorized access for dispersed camping; (2) restricting motorized big game retrieval; (3) impacts to resources from motorized use; and, (4) economics: loss of revenues and jobs.

    Proposed Action

    The revised proposed action would designate a system of roads, trails, and areas for motorized use as well as motorized access for dispersed camping and motorized access for big game retrieval. The road system would have 15 percent fewer roads and 68 percent more motorized trails than the current system. That would result in 2,890 miles of NFS roads open to public motorized travel, including 2,143 miles of roads that are open to both highway legal and off-highway vehicles. Also, this would result in 270 miles of motorized trails across the Forests, with 20 miles open to all vehicles and 182 miles open to vehicles less than 50 inches wide.

    The proposed action would designate 300 feet from either side of around 35 percent of the designated open roads (1,027 miles) for the sole purpose of accessing dispersed camping locations with motor vehicles. Motorized big game retrieval would be allowed within a 1-mile distance off the designated road and motorized trail system (1.2 million acres) for elk. No other species would be retrieved using motor vehicles. There would be one motorized use area designated (17 acres). All other cross country travel would be prohibited.

    Possible Alternatives

    The revised DEIS will analyze three alternatives in detail. These revised alternatives used the 2010 DEIS as a foundation and the public comments received from that DEIS.

    Alternative 1 (no action) represents the existing transportation system and proposes no changes. The existing system includes 3,418 miles of open roads and 127 miles of motorized trails. Cross-country travel off system roads on around 1.6 million acres would continue, except where currently prohibited. This alternative is not be compliant with the travel management rule because it does not designate a system of roads, trails and areas for motorized use.

    Alternative 2 is the Proposed Action, which would designate a system of roads, trails, and areas for motorized use as well as motorized access for dispersed camping and motorized access for big game retrieval. The road system would have 15 percent fewer roads and 68 percent more motorized trails than the current system. That would result in 2,890 miles of NFS roads open to public motorized travel, including 2,143 miles of roads that are open to both highway legal and off-highway vehicles.

    Alternative 3 is being designated to address the following issues: (1) Restricting motorized access for dispersed camping; (2) restricting motorized big game retrieval; and, (3) impacts to resources from motorized use.

    Scoping Process

    The proposed action outlined in this revised NOI is identical to the scope of the proposed action that was originally scoped, and therefore a new scoping period is not required. The original scoping process solicited over 20,000 public comments, which are being used to guide the development of the revised DEIS. Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will also be accepted and considered.

    Responsible Official

    The Responsible Official is the Forest Supervisor of the Apache-Sitgreaves National Forests, P.O. Box 640, Springerville, AZ 85938.

    Nature of Decision To Be Made

    Based on the effects to social, natural, and cultural resources, the Forest Supervisor will decide what changes to make to the current motorized travel system to be compliant with the Travel Management Rule. The decision will also include whether to provide motorized access for dispersed camping, whether to designate motorized use areas, and whether to provide access for motorized big game retrieval. The Record of Decision, which will be published after analyzing the public's comments, will document the decision with the rationale.

    Dated: September 15, 2017. Jeanne M. Higgins, Acting Associate Deputy Chief, National Forest System.
    [FR Doc. 2017-21009 Filed 9-29-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Kemmerer Ranger District; Bridger-Teton National Forest; Wyoming; Kemmerer Grazing and Rangeland Vegetation Management Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Revised Notice of Intent to prepare an Environmental Impact Statement.

    SUMMARY:

    The Bridger-Teton National Forest will prepare an Environmental Impact Statement (EIS) to analyze the effects of continued authorization of grazing on 17 sheep allotments on the Kemmerer Ranger District in southwest Wyoming.

    DATES:

    Although comments are accepted at any time, two designated comment periods concerning the scope of the analysis were established: June 26, 2017 through July 26, 2017 and November 17, 2008 through January 2, 2009. Comments will be accepted for an additional 30 days after October 2, 2017. The Draft EIS is expected in June 2018. Following its release, an opportunity to comment on the Draft EIS will be provided. The Final EIS is expected June 2019.

    ADDRESSES:

    Send written comments to Kemmerer Ranger District, 308 U.S. Highway 189 North, Kemmerer, WY 83101. Comments may also be sent via email to [email protected], or via facsimile to 307-828-5135. Please put “Comments on Kemmerer Grazing” in the subject line.

    It is important that reviewers provide their comments at such times and in such a way that they are useful to the Agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.

    FOR FURTHER INFORMATION CONTACT:

    R. Aaron Zobell, Rangeland Management Specialist, Kemmerer Ranger District, 307-828-5100, [email protected] Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    Ongoing information related to the proposed project can be found on the the project Web page at: http://www.fs.usda.gov/project/?project=26874.

    SUPPLEMENTARY INFORMATION:

    Purpose and Need for Action

    A Notice of Intent (NOI) to prepare an EIS was published on November 17, 2008 (73 FR 67835) and April 9, 2010 (75 FR 10144). This NOI updates and supplements the previously published NOI to prepare an EIS and adds one additional allotment, Trespass Creek Allotment. The project area encompasses 181,227 acres of National Forest System lands within Lincoln County of western Wyoming. The 17 allotments included in the analysis are: Aspen Springs; Basin Creek; Buckskin Knoll; Devils Hole; Elk Creek; Green Knoll; Indian Creek; Lake Alice; Lake Mountain; Lower Salt Creek; Pole Creek; Porcupine Creek; Sams-Allen Creek; Smiths Fork; South Fontenelle; Spruce Creek; and Trespass Creek allotments. The analysis contained in the EIS will be used by the responsible official to decide whether or not, and if so, how to authorize livestock grazing and manage rangeland vegetation within the project area.

    The purpose of the Kemmerer Grazing and Rangeland Vegetation Management project is to authorize livestock grazing in a manner that will maintain desired conditions or improve resource conditions towards desired conditions. There is a need for continued livestock grazing on the Bridger-Teton National Forest to meet the direction provided by the Bridger Teton Land and Resource Management Plan (Forest Plan) to contribute to the prosperity of communities (Goal 1.1) and provide forage for about 260,000 animal unit months of livestock grazing annually (Objective 1.1(h)). There is also a need to avoid unacceptable effects from livestock use as outlined in the Forest Plan (Goal 4.7) which directs that grazing use of the National Forest sustain or improve overall range, soils, water, wildlife, and recreation values or experiences. The difference between the existing condition and desired condition in terms of livestock grazing and resource conditions describes the need for federal action. Desired conditions are defined by the Forest Plan, Forest Service Manual, and applicable laws. This effort is undertaken to comply with the 1995 Rescissions Act (Pub. L. 104-19).

    Proposed Action

    The proposed action is to authorize livestock grazing on 17 allotments within the project area (Aspen Springs; Basin Creek; Buckskin Knoll; Devils Hole; Elk Creek; Green Knoll; Indian Creek; Lake Alice; Lake Mountain; Lower Salt Creek; Pole Creek; Porcupine Creek; Sams-Allen Creek; Smiths Fork; South Fontenelle; Spruce Creek; and Trespass Creek allotments) with updated domestic sheep grazing and rangeland vegetation management direction. Desired conditions are identified. Grazing practices addressing frequency of grazing and rest from grazing would be guided by the amount and diversity of vegetation given the capability of soils, as well as indicators of soil quality such as amount of ground cover, sign of active erosion and healing of headcuts. Other best management practices addressing the timing, duration, and in specific settings the intensity, of use are identified. Adaptive management is part of the proposed action. Identified are: Criteria to guide management, pre-determined optional courses of action used to make adaptive changes in management over time, and the focused monitoring which provides the basis for adjusting management to attain desired resource conditions. Allotment management plans would become part of a term grazing permit and contain the livestock grazing and rangeland vegetation management direction identified by the responsible official's decision.

    Possible Alternatives

    To date the Bridger-Teton National Forest has identified two alternatives to the proposed action: Alternative A—No Domestic Livestock Grazing, and Alternative B—Continuation of Current Livestock Management. Alternative A would discontinue sheep grazing on the 17 allotments over the next five years with the exception of sheep trailing to other allotments on the Bridger-Teton National Forest and the Caribou National Forest. This alternative will demonstrate the effects of eliminating livestock grazing on the environment and more clearly illustrate the potential effects of implementing any grazing and rangeland vegetation management alternative. Alternative B would continue current grazing management practices including annual adjustments in authorized livestock numbers and season of use, as needed.

    Responsible Official

    Kemmerer District Ranger Adrienne Holcomb

    Nature of the Decision To Be Made

    Whether domestic sheep grazing should be allowed to continue on all, part, or none of the 17 allotments within the project area; and if so, under what management strategy.

    Preliminary Issues

    Preliminary issues associated with the proposed action include:

    (1) The amount and diversity of vegetation in some locations is less than the current capability of soils;

    (2) Sediment delivery to drainages supporting fisheries, and retention of precipitation on uplands, as evidenced by headcutting/gullies and sign of active erosion; and

    (3) Wildlife values within some aspen stands are minimized by a lack of diverse aspen age classes; in some locations the diversity of herbaceous and shrub species in the understory is also diminished.

    Permits or Licenses Required

    If a decision is made to authorize regularly scheduled livestock grazing, such grazing must be authorized under a term grazing permit.

    Scoping Process

    Pursuant to 36 CFR 218.7(a)(2), this proposed project implements the land management plan and is subject to § 218 subparts A and B. Those who submit specific written comments regarding the proposed project during this scoping period or other designated opportunity for public comment in accordance with § 218.5(a) are eligible to object. Issues raised in objections must be based on previously submitted timely, specific written comments regarding the proposed project unless based on new information arising after the designated comment opportunities.

    Specific written comments as defined by § 218.2 should be within the scope of the proposed action, have a direct relationship to the proposed action, and must include supporting reasons for the responsible official to consider. It is the responsibility of all individuals and organizations to ensure that their comments are received in a timely manner.

    Comments received, including names and addresses of those who comment, will be considered part of the public record on these proposed actions and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the agency with the ability to provide the respondent with subsequent environmental documents nor provide the respondent with standing to object the subsequent draft decision. Only those who respond to the request for comments or request to be placed on the mailing list will be added to the mailing list for this project.

    An objection period will follow the regulation found in § 218.7. For objection eligibility (§ 218.5), only those who have submitted timely, specific written comments during any designated opportunity for public comment may file an objection.

    Issues to be raised in objections must be based on previously submitted specific written comments regarding the proposed project and attributed to the objector, unless the issue is based on new information that arose after a designated opportunity to comment (§ 218.8(c)).

    Dated: September 12, 2017. Jeanne M. Higgins, Acting Associate Deputy Chief, National Forest System.
    [FR Doc. 2017-21007 Filed 9-29-17; 8:45 am] BILLING CODE 3411-15-P
    THE BROADCASTING BOARD OF GOVERNORS Notice of Public Availability of the Broadcasting Board of Governors FY-2015 Service Contract Analysis and FY-2016 Service Contract Inventory AGENCY:

    The Broadcasting Board of Governors.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010, the Broadcasting Board of Governors (BBG) is publishing this notice to advise the public of the availability of its FY-2015 Service Contract Analysis and FY 2016 Service Contract Inventory. They are available on the BBG Web site, through the following link: https://www.bbg.gov/strategy-and-performance/research-reports/bbg-service-contract-inventory/. The service contract inventory provides information on service contract actions over $25,000 made in FY-2016. The information is organized by function to show how contracted resources are distributed throughout the Agency. The inventory has been developed in accordance with guidance on service contract inventories issued on November 5, 2010 and on December 19, 2011 by the Office of Management and Budget, Office of Federal Procurement Policy (OFPP).

    FOR FURTHER INFORMATION CONTACT:

    James McGuirk, Senior Procurement Analyst, IBB Office of Contracts via email at [email protected] or at telephone number (202) 382-7840.

    Dated: September 27, 2017. Chris Luer, Chief, IBB Office of Administration.
    [FR Doc. 2017-21102 Filed 9-29-17; 8:45 am] BILLING CODE 8610-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the New Hampshire Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the New Hampshire Advisory Committee to the Commission will convene by conference call at 11:00 a.m. (EDT) on: Thursday October 26, 2017. The purpose of the meeting is to begin the work on the Valley Street project, including potential panelists, venue, and other details for a future briefing on the project.

    DATES:

    Thursday, October 26, 2017, at 11:00 a.m. EDT.

    Public Call-In Information: Conference call-in number: 1-888-539-3624 and conference call 6145125.

    FOR FURTHER INFORMATION CONTACT:

    Evelyn Bohor, at [email protected] or by phone at 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-888-539-3624 and conference call 6145125. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operato